PLAN AND AGREEMENT OF REORGANIZATION
EXHIBIT 2.1
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This Plan and Agreement of Reorganization is entered into as of the 29th day of January, 2007,
by and among ICrystal, Inc., a Delaware corporation, sometimes referred to in this Agreement as
the “Purchaser,” and those persons executing this Agreement below, all of whom are
shareholders of ALL Energy Company. These persons, as a group, are sometimes referred to
collectively in this Agreement as the “Shareholders”. The Shareholders own, in the aggregate,
100% of all of the outstanding shares of capital stock of ALL Energy Company, a Delaware
corporation, sometimes referred to in this Agreement as the “Acquired Corporation”.
This Plan comprises a reorganization within the meaning of Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended. The Purchaser will acquire from the Shareholders all of the
issued and outstanding shares of capital stock of the Acquired Corporation, in exchange solely
for shares of voting stock of the Purchaser. Under this Plan, the Acquired Corporation will
become a wholly-owned subsidiary of the Purchaser.
In order to consummate the Plan of Reorganization, the Purchaser and the Shareholders, in
consideration of the mutual covenants and on the basis of the representations and warranties set
forth, agree as follows:
ARTICLE 1
EXCHANGE OF CAPITAL STOCK
1.01. Transfer of Acquired Corporation’s Capital Stock. Subject to the terms and conditions of
this Agreement, the Shareholders will transfer and deliver to Purchaser, on or before the Closing
Date, certificates for shares of capital stock of the Acquired Corporation, duly endorsed in blank,
as follows:
Name of Shareholder
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No. of Shares of Common
Stock of Acquired
Corporation
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Xxxx Xxxxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503,571 shares
Sun Bear, LLC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435,000 shares
Xxxxxxxxxxx Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37,500 shares
Xxxx Xxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30,000 shares
Xxxxxxx Xxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,000 shares
Xxxxxx Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,500 shares
Xxxxxx X. Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,500 shares
Xxxxxxx X. Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7,500 shares
Ethanol Options, LLC. . . . . . . . . . . . . . . . . . . . . . . . . . . .30,000 shares
Xxxxxx Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30,000 shares
Xxxx Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,000 shares
Xxxxxx X. and Xxxxx X. Xxxxx. . . . . . . . . . . . . . . . . . . . . 7,500 shares
Xxxxxx Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30,000 shares
Xxxxxxxx Farm Holdings, LLC. . . . . . . . . . . . . . . . . . . . 150,000 shares
Xxxxxxx X. Xxxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . .150,000 shares
Xxxxx Xxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37,500 shares
M.E.P. Construction, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . 7,500 shares
Xxxxx Xxxxxxxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,500 shares
Xxxxxxx Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30,000 shares
Xxxx Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7,500 shares
Xxxx Xxxxxx Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . .15,000 shares
Xxxxxx X. Xxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,000 shares
Xxxx Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39,375 shares
Xxxxxx Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,000 shares
Xxx Xxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68,571 shares
Xxxxxx X. Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000 shares
Xxxxx X. Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000 shares
Xxxx Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30,000 shares
Xxxxx X. Xxxxxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . 142,857 shares
Xxxxx X. Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142,857 shares
Total Shares Outstanding of Acquired Corporation. .2,010,731 shares
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1.02. Consideration for Transfer. In exchange for the number of shares transferred by the
Shareholders pursuant to Paragraph 1.01, Purchaser will issue and cause to be delivered to
Shareholders, on the Closing Date, a total of 25,330,000 shares of Purchaser’s Common Stock,
as follows:
Name and Address of
Shareholder
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No. of Shares of Common
Stock of Purchaser to be
Issued
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Xxxx Xxxxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,343,689 shares
Sun Bear, LLC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5,479,872 shares
Xxxxxxxxxxx Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . 472,403 shares
Xxxx Xxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .377,922 shares
Xxxxxxx Xxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188,961 shares
Xxxxxx Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94,481 shares
Xxxxxx X. Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94,481 shares
Xxxxxxx X. Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94,481 shares
Ethanol Options, LLC. . . . . . . . . . . . . . . . . . . . . . . . . . .377,922 shares
Xxxxxx Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377,922 shares
Xxxx Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188,961 shares
Xxxxxx X. and Xxxxx X. Xxxxx. . . . . . . . . . . . . . . . . . . . 94,481 shares
Xxxxxx Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377,922 shares
Xxxxxxxx Farm Holdings, LLC. . . . . . . . . . . . . . . . . . .1,889,611 shares
Xxxxxxx X. Xxxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . 1,889,611 shares
Xxxxx Xxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .472,403 shares
M.E.P. Construction, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . 94,481 shares
Xxxxx Xxxxxxxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94,481 shares
Xxxxxxx Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377,922 shares
Xxxx Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94,481 shares
Xxxx Xxxxxx Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . .188,961 shares
Xxxxxx X. Xxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188,961 shares
Xxxx Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 496,023 shares
Xxxxxx Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,598 shares
Xxx Xxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 863,817 shares
Xxxxxx X. Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,987 shares
Xxxxx X. Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,987 shares
Xxxx Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .377,922 shares
Xxxxx X. Xxxxxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . .1,799,628 shares
Xxxxx X. Xxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1,799,628 shares
Total Shares to be Issued by Purchaser. . . . . . . . . . 25,330,000 shares
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1.03. The Closing; Closing Date. Subject to the conditions precedent set forth in this
Agreement, and the other obligations of the parties set forth in this Agreement, the Plan of
Reorganization shall be consummated at the offices of the Acquired Corporation, 0000 X.X.
00xx Xxxxxx, Xxxxxxxx, Xxxx 00000, on February 15, 2007, at the hour of 2:00 p.m., or at any other
place and date as the parties fix by mutual consent (the “Closing”). Consummation shall include
the delivery by the Shareholders of their respective shares of capital stock of the Acquired
Corporation, as provided in Paragraph 1.01 of this Agreement, and the delivery by the Purchaser
of its shares of Common Stock, as provided in Paragraph 1.02 of this Agreement. The date of the
consummation of this Agreement is referred to as the “Closing Date”.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF PRINCIPAL SHAREHOLDER OF
ACQUIRED CORPORATION
Xxxx Xxxxxxxxx (the “Principal Shareholder”), the largest shareholder of Acquired Corporation
and a director and the president and secretary of Acquired Corporation, represents and warrants,
as of the date of this Agreement and as of the Closing Date, as follows:
2.01. Organization and Standing of Acquired Corporation. Acquired Corporation is a
corporation duly organized, validly existing and in good standing under the laws of the State of
Delaware and, with corporate power to own property and carry on its business as it is now being
conducted. A true copy of the Certificate of Incorporation of Acquired Corporation, as amended
to date, that have been certified by the Secretary of State of Delaware and delivered to Purchaser,
is complete and accurate as of the date of this Agreement. Acquired Corporation is qualified to
transact business as a foreign corporation and is in good standing in all jurisdictions in which it
carries on business or in which any of its principal properties are located.
2.02. Subsidiaries. Acquired Corporation has no subsidiaries nor any interest in any other
corporation, firm, partnership or other juridical entity.
2.03. Capitalization. Acquired Corporation has an authorized capitalization of 100,000,000
shares of $.0001 par value common stock and 10,000,000 shares of $.0001 par value preferred
stock. As of the date of this Agreement, 2,010,713 shares of $.0001 par value common stock are
issued and outstanding, fully paid and non-assessable. No shares of preferred stock of Purchaser
have been issued or authorized for issuance. Except as set forth in Schedule 2.03 attached hereto
and made a part hereof, there are no outstanding subscriptions, options, contracts, commitments
or demands relating to the authorized but unissued capital stock of Acquired Corporation or other
agreements of any character under which Acquired Corporation would be obligated to issue or
purchase shares of its capital stock.
2.04. Financial Statements.
(a) Principal Shareholder will cause to be delivered, prior to Closing, to Purchaser the audited
financial statements of Acquired Corporation, including a balance sheet and statement of
operations, as at December 31, 2006, and the related statements of income and retained earnings
from the Acquired Corporation’s inception through such date. All of the financial statements
described in this paragraph 2.04 will have been prepared in conformity with generally accepted
accounting principles, applied on a consistent basis, and present fairly the financial position of
Acquired Corporation, as of their respective dates.
(b) Other than changes occurring in the usual and ordinary conduct of the business since
December 31, 2006, there have been, and at the Closing Date there will be, no materially adverse
changes in such financial condition of Acquired Corporation.
(c) Subject only to any changes occurring in the usual and ordinary course of business, the
assets of Acquired Corporation, at the Closing Date, will be substantially those owned by it and
shown on its unaudited financial statements as of December 31, 2006, a copy of which is
attached hereto as Schedule 2.04(c) and made a part hereof.
2.05. Operations Since Balance Sheet Date. Since December 31, 2006, Acquired Corporation
has not, and prior to the Closing Date will not have, without written consent to Purchaser:
(a) Issued or sold any stock, bond or other corporate securities;
(b) Except for current liabilities incurred and obligations entered into in the usual and ordinary
course of business, incurred any absolute or contingent obligation, including long-term debt;
(c) Except for current liabilities shown on the balance sheet and current liabilities incurred since
that date in the usual and ordinary course of business, discharged or satisfied any lien or
encumbrance, or paid any obligation or liability;
(d) Mortgaged, pledged or subjected to lien any of its assets;
(e) Except in the usual and ordinary course of business, sold or transferred any of its tangible
assets, or canceled any debts or claims, or waived any rights of substantial value;
(f) Sold, assigned or transferred any patents, formulas, trademarks, trade names, copyrights,
licenses, or other intangible assets;
(g) Incurred any materially adverse losses or damage, or become involved in any strikes or other
labor disputes; or
(h) Entered into any transaction other than in the usual and ordinary course of business, except
for the transaction that is the subject matter of this Agreement.
2.06. Title to Assets. Acquired Corporation has good and marketable title to all its assets
specified in the Schedule of Assets described in paragraph 2.07 and reflected in the balance sheet
dated December 31, 2006; none of such is subject to any mortgage, pledge, lien, charge, security
interest, encumbrance or restriction, except those that:
(a) Are disclosed on the balance sheet as securing specified liabilities;
(b) Are disclosed in the Schedule of Assets pursuant to paragraph 2.07; or
(c) Do not materially adversely affect the use of the asset.
The equipment of Acquired Corporation is in good condition and repair, except for reasonable
wear and tear.
2.07. Schedule of Assets. Prior to the Closing Date, Principal Shareholder will have delivered to
Purchaser a separate Schedule of Assets, specifically referring to this paragraph, containing a true
and complete:
(a) Legal description of all real property owned by Acquired Corporation and any real property
for which Acquired Corporation has an option to purchase, or holds a leasehold interest;
(b) Aged list of accounts receivable as of the Closing Date;
(c) List of all capitalized machinery, tools, equipment and rolling stock owned by Acquired
Corporation that sets forth any liens, claims, encumbrances, charges, restrictions, covenants and
conditions concerning the listed items;
(d) Description of all machinery, tools, equipment and rolling stock in which Acquired
Corporation has a leasehold interest, with a description of each interest;
(e) A true and complete list of all patents, patent licenses, trademarks, trademark registrations,
trade names, copyrights, and copyright registrations owned by Acquired Corporation; and
(f) List of all fire and other casualty and liability insurance policies of Acquired Corporation in
effect at the time of delivery of such schedule.
2.08. Indebtedness.
(a) Except as set forth in the balance sheet of Acquired Corporation dated December 31, 2006,
described in paragraph 2.04, Acquired Corporation presently has no outstanding indebtedness
other than liabilities incurred in the usual and ordinary course of business or in connection with
this transaction. Acquired Corporation is not in default with respect to any terms or conditions of
any indebtedness.
(b) Acquired Corporation has not made any assignment for the benefit of creditors, nor has any
involuntary or voluntary petition in bankruptcy been filed by or against Acquired Corporation.
2.09. Litigation.
(a) To the best knowledge of Principal Shareholder, Acquired Corporation is not party to, nor
has it been threatened with, any litigation or governmental proceeding. To the best knowledge of
the Shareholders, and each of them, they are not aware of any facts that might result in any
action, suit or other proceeding that would result in any material adverse change in the business
or financial condition of Acquired Corporation.
(b) To the best knowledge of Principal Shareholder, Acquired Corporation is not infringing on,
or otherwise acting adversely to, any copyrights, trademark rights, patent rights or licenses owned
by any other person, and there is no pending claim or threatened action with respect to such
rights. Acquired Corporation is not obligated to make any payments in the form of royalties,
fees, or otherwise to any owner or licensor of any patent, trademark, trade name or copyright.
2.10. Compliance With Law and Other Instruments. To the best knowledge of Principal
Shareholder, the business operations of the Acquired Corporation have been, and currently are
being, conducted in accordance with all applicable laws, rules and regulations of all authorities,
including, without limitation, state franchise registration and/or business opportunity laws and
regulations, or laws similar thereto. To the best knowledge of Principal Shareholder, Acquired
Corporation is not in violation of, or in default under, any term or provision of its Certificate of
Incorporation, its Bylaws or of any lien, mortgage, lease, agreement, instrument, order, judgment
or decree, or any other type of restriction that would prevent consummation of the exchange of
securities contemplated by this Agreement.
2.11. Contractual Obligations. To the best knowledge of Principal Shareholder, except for the
contracts listed and described on Schedule 2.11 attached hereto and made a part hereof, Acquired
Corporation is not a party to, or bound by, any written or oral:
(a) Contract not made in the usual and ordinary course of business;
(b) Employment or consultant contract that is not terminable at will without cost or other
liability to Acquired Corporation or any successor;
(c) Contract with any labor union;
(d) Bonus, pension, profit-sharing, retirement, stock option, hospitalization, group insurance or
similar plan providing employee benefits;
(e) Any real or personal property lease as lessor;
(f) Advertising contract or contract for public relations services;
(g) Purchase, supply or service contracts in excess of $500 each, or in the aggregate of $5,000
for all such contracts;
(h) Deed of trust, mortgage, conditional sales contract, security agreement, pledge agreement,
trust receipt or any other agreement subjecting any of the assets or properties of Acquired
Corporation to a lien, encumbrance or other restriction;
(i) Term contract continuing for a period of more than 30 days that is not terminable without
liability to Acquired Corporation or its successors; or
(j) Contract that contains a redetermination of price or similar type of provision.
Acquired Corporation has performed all obligations required to be performed by it to date and is
not in material default under any of the contracts, leases or other arrangements by which it is
bound. None of the parties with whom Acquired Corporation has contractual arrangements are in
default of their obligations.
2.12. Changes in Compensation. Since the balance sheet date of December 31, 2006, Acquired
Corporation has not granted any general pay increase to employees or changed the rate of
compensation, commission or bonus payable to any officer, employee, director, agent or
shareholder.
2.13. Records. All of the account books, minute books, stock certificate books and stock
transfer ledgers of Acquired Corporation are complete and accurate.
2.14. Taxes.
(a) Acquired Corporation has not been required to file any state or federal income tax returns
asa of the date of this Agreement.
(b) Principal Shareholder will indemnify Purchaser for any and all deficiencies in prior years’
taxes determined against Acquired Corporation.
2.15. Full Disclosure. As of the Closing Date, Principal Shareholder will have disclosed all
events, conditions and facts materially affecting the business and prospects of Acquired
Corporation. Principal Shareholder has not withheld knowledge of any events, conditions and
facts that they have reasonable ground to know may materially affect the business and prospects
of Acquired Corporation None of the representations and warranties made by Principal
Shareholder in this Agreement, or set forth in any other instrument furnished to Purchaser,
contain any untrue statement of a material fact, fail to state material facts or fail to state facts
necessary to make the statements of fact made not misleading.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS OF ACQUIRED
CORPORATION
3.01. Ownership of Acquired Corporation’s Capital Stock. Each of the Shareholders executing
this Agreement is, on the date of this Agreement, and on the Closing Date will be, the lawful
owner of the number of shares of capital stock of Acquired Corporation that is set forth opposite
each such Shareholder’s name in Paragraph 1.01 of this Agreement. Each of the Shareholders
executing this Agreement has the legal right and power to sell, assign and transfer the shares of
such Shareholder of the capital stock of Acquired Corporation The delivery of the described
shares to the Purchaser pursuant to the provisions of this Agreement will transfer valid title to the
shares free and clear of all liens, encumbrances, claims and other restrictions of any kind.
3.02 Waiver of Preemptive Rights; No Rights of Refusal. Each of the Shareholders executing
this Agreement has waived, and does hereby waive, any preemptive or prescriptive right to
purchase shares of Acquired Corporation that each such Shareholder has or may have had in the
past. None of the Shareholders executing this Agreement is subject to a right of first refusal as to
his, her or its common stock of Acquired Corporation.
3.03. No Brokers or Finders. All negotiations related to this Agreement on the part of each of
the Shareholders executing this Agreement have been accomplished solely by such Shareholders
without the assistance of any person employed as a broker or finder. None of the Shareholders
executing this Agreement has done anything to give rise to any valid claims against Purchaser or
Acquired Corporation for a brokerage commission, finder’s fee or any similar charge.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
4.01 Securities Act Disclosure - Information With Respect to Purchaser. There is attached to
this Agreement as Schedule 4.01 current information with respect to Purchaser, which
information includes disclosure that describes the business operations of Purchaser immediately
following the Closing hereunder.
In addition, Purchaser files annual and other periodic reports with the Securities and Exchange
Commission. The periodic reports, as filed with the Securities and Exchange Commission by
Purchaser, may be reviewed online at:
xxxx://xxx.xxx/xxx-xxx/xxxxxx-xxxxx?xxxxxxxxxxxxxxxxx&XXXx&xxxxxxxx&Xxxxxx&XXXx&xxxxxxxxxxxxx&xxxxxxxxxxxxxxxxx,
and are incorporated herein by this reference. Purchaser represents and warrants that the
information contained in the Information Statement attached hereto as Schedule 4.01 accurately
reflects its business operations and current financial condition.
4.02. Organization and Standing of Purchaser. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware, with corporate
power to own property and carry on its business as it is now being conducted.
4.03. Subsidiaries. Purchaser has one subsidiary corporation: Venus Associates, Inc., a Nevada
corporation.
4.04. Capitalization. Purchaser has an authorized capitalization of 80,000,000 shares of
Common Stock of the par value of $.01 per share, of which 8,210,754 shares are issued,
outstanding and fully paid, as of the date of this Agreement, and 20,000,000 shares of Preferred
Stock of the par value of $.01 per share, none of which has been issued. There are no
outstanding options, contracts, calls, commitments or demands relating to the authorized but
unissued capital stock of Purchaser.
4.05. Current Status of Purchaser. Currently, only the subsidiary of Purchaser, Venus
Associates, Inc., has active business operations. The common stock of Venus Associates, Inc.
will be distributed to Purchaser’s shareholders as a dividend and will not be an asset of Purchaser
subsequent to the consummation of the transactions contemplated by such dividend distribution.
Prior to completion of such dividend distribution, the business operations of Venus Associates,
Inc. will continue and the financial operations thereof will be included in the financial statements
of the financial statements of Purchaser. However, Purchaser has no current intention of taking
any action with respect to Venus Associates, Inc. Rather, Purchaser intends to devote all of its
available resources to the pursuit of its ethanol-related business plan.
4.06. Financial Statements. Prior to the Closing, Purchaser will deliver to the Shareholders
audited financial statements of Purchaser for the years ended December 31, 2004, 2005 and
2006. As of the Closing, the financial statements listed in this paragraph will present fairly the
financial condition of Purchaser as of the respective dates thereof.
4.07. Financial Condition Since December 31, 2006. Since December 31, 2006, Purchaser has
transferred to its subsidiary, Venus Associates, Inc., all of its operating assets and attendant
liabilities associated with the Purchaser’s development-stage web page publishing business. The
common stock of Venus Associates, Inc. will be distributed to Purchaser’s shareholders as a
dividend and will not be an asset of Purchaser subsequent to the consummation of the
transactions contemplated by such dividend distribution.
4.08. Title to Assets. All book assets of Purchaser are in existence in its possession, are in good
condition and repair and conform to all applicable laws, regulations and ordinances. Purchaser
has good and marketable title to all of its assets and holds such assets subject to no mortgage,
lien or encumbrance.
4.09. Status of Issued Shares. The shares of Purchaser Common Stock that are to be issued and
delivered to the Shareholders pursuant to the terms of this Agreement will be validly authorized
and issued, and will be fully paid and non-assessable. No shareholder of Purchaser will have any
preemptive right of subscription or purchase with respect to the shares to be issued and delivered.
4.10. Indebtedness. Purchaser has no outstanding indebtedness, other than liabilities incurred in
connection with this transaction. Purchaser is not in default with respect to any terms or
conditions of any indebtedness.
4.11. Litigation. Purchaser is not a party to, nor has it been threatened with, any litigation or
governmental proceeding that could have a materially adverse affect on the transactions
contemplated by this Agreement or on the financial condition of Purchaser.
4.12. Purchaser’s Authority. The execution and performance of this Agreement have been duly
authorized by all requisite corporate action. This Agreement constitutes a valid and binding
obligation of Purchaser, in accordance with its terms. No provision of the Purchaser’s Certificate
of Incorporation, Bylaws, minutes, share certificates or contracts prevents Purchaser from
delivering good title to its shares of common stock in the manner contemplated by this
Agreement.
4.13. Brokers and Finders. All negotiations on the part of the Purchaser related to this
Agreement have been accomplished solely by the Purchaser without the assistance of any person
employed as a broker or finder. The Purchaser has done nothing to give rise to any valid claims
against the Shareholders for a brokerage commission, finder’s fee or any similar charge.
4.14. Taxes. Purchaser has not filed all required income tax returns. Purchaser owes no income
taxes.
4.15. Full Disclosure. As of the Closing Date, Purchaser will have disclosed to the Shareholders
all events, conditions and facts materially affecting the business and prospects of Purchaser.
Purchaser has not withheld knowledge of any events, conditions or facts it has reasonable ground
to know may materially affect the business and prospects of Purchaser. None of the
representations and warranties made by the Purchaser in this Agreement or set forth in any other
instrument furnished to the Shareholders contain any untrue statement of a material fact, fail to
state material facts or fail to state facts necessary to make the statements of fact made not
misleading.
ARTICLE 5
CONDUCT OF BUSINESS OF ACQUIRED CORPORATION PENDING CLOSING DATE
5.01. Conduct of Business in Its Usual and Ordinary Course. Principal Shareholder will use his
best efforts to cause Acquired Corporation to carry on its business in substantially the same
manner as previous to the date of execution of this Agreement, and to:
(a) Continue in full force the amount and scope of insurance coverage carried prior to that date;
(b) Cause Acquired Corporation to maintain its business organization and keep it intact, to
retain its present employees and to maintain its goodwill with suppliers, customers and others
having business relationships with it;
(c) Exercise due diligence in safeguarding and maintaining confidential reports and data used in
its business; and
(d) Maintain its assets and properties in good condition and repair, and not sell or otherwise
dispose of any of its assets or properties, except sales of inventory in the usual and ordinary
course of business.
5.02. Satisfy Conditions Precedent. Principal Shareholder will use his best efforts to cause
Acquired Corporation to satisfy all conditions precedent contained in this Agreement.
5.03. Access to Information and Documents.
(a) Principal Shareholder will cause Acquired Corporation to afford the officers and
representatives of Purchaser, from the date of this Agreement until consummation of the Plan of
Reorganization, full access during normal business hours to all properties, books, accounts,
contracts, commitments and any other records of any kind of Acquired Corporation. Sufficient
access shall be allowed to provide Purchaser with full opportunity to make any investigation it
desires to make of Acquired Corporation and to keep itself fully informed of the affairs of
Acquired Corporation.
(b) In addition, Principal Shareholder will cause Acquired Corporation to permit Purchaser to
make extracts or copies of all such books, accounts, contracts, commitments and records, and to
furnish to Purchaser, on demand, any further financial and operating data of Acquired
Corporation as Purchaser reasonably requests.
(c) Purchaser will use any information obtained under this paragraph only for its own purposes
in connection with the consummation of the transaction contemplated by this Agreement, and
will not divulge the information to any other person. In the event the transaction contemplated
by this Agreement is not consummated within ninety (90) days of the date of mutual execution,
all documents or information gathered by Purchaser hereunder will be returned to Acquired
Corporation forthwith, unless such period shall be extended by mutual consent.
5.04. Negative Covenants. Except with the prior written consent of Purchaser, Principal
Shareholder agrees that Acquired Corporation will not:
(a) Incur any liabilities, other than current liabilities incurred in the usual and ordinary course of
business;
(b) Incur any mortgage, lien, pledge, hypothecation, charge, encumbrance or restriction of any
kind;
(c) Become a party to any contract, or renew, extend or modify any existing contract, except in
the usual and ordinary course of business;
(d) Make any capital expenditures, except for ordinary repairs, maintenance and replacement;
(e) Declare or pay any dividend, or make any other distribution, to shareholders;
(f) Purchase, retire or redeem any shares of its capital stock;
(g) Issue or sell additional shares of its capital stock, whether or not such shares have been
previously authorized or issued, except shares currently being offered pursuant to a Private
Placement Memorandum dated January 12, 2007, and then only in accordance with the terms of
such offering;
(h) Issue or sell any warrants, rights or options to acquire any shares of its capital stock;
(i) Amend its Certificate of Incorporation or Bylaws;
(j) Pay or agree to pay any bonus, increase in compensation, pension or severance pay to any
director, shareholder, officer, consultant, agent or employee;
(k) Discharge or satisfy any lien or encumbrance, nor pay any obligation or liability, except
current liabilities shown on the balance sheet dated December 31, 2006, or incurred in the usual
and ordinary course of business since that date;
(l) Merge or consolidate with any other entity;
(m) Enter into any transactions or take any acts that would constitute a breach of the
representations and warranties contained in this Agreement; and
(n) Institute, settle, or agree to settle, any action or proceeding before any court or governmental
body.
5.05. Consultation. Acquired Corporation and Principal Shareholder will consult with Purchaser
at all times until the Closing Date with respect to the operation and conduct of Acquired
Corporation’s business.
ARTICLE 6
CONDUCT OF BUSINESS OF PURCHASER PENDING CLOSING DATE
6.01. Conduct of Business in Its Ordinary Course. Purchaser will carry on its business in
substantially the same manner as before the date of execution of this Agreement.
6.02. Satisfy Conditions Precedent. Purchaser will use its best efforts to satisfy all conditions
precedent contained in this Agreement.
6.03. Access to Information and Documents.
(a) Purchaser will provide the Shareholders, from the date of this Agreement until the
consummation of the Plan of Reorganization, full access during normal business hours to all
properties, books, accounts, contracts, commitments and records of Purchaser. Sufficient access
shall be allowed to provide the Shareholders with full opportunity to make any investigation they
desire to make of Purchaser and to keep themselves fully informed of the affairs of Purchaser.
(b) Purchaser will permit the Shareholders to make extracts or copies of all books, accounts,
contracts, commitments and records. Additionally, Purchaser will furnish to the Shareholders,
within two (2) days after demand, any further financial and operating data and other information
concerning its business and assets that the Shareholders reasonably requests.
(c) The Shareholders may use any information secured pursuant to this paragraph only for their
own purposes in connection with the consummation of the transaction contemplated by this
Agreement and may not divulge the information to any other persons.
ARTICLE 7
CONDITIONS PRECEDENT TO OBLIGATIONS OF SHAREHOLDERS
7.01. Conditions Precedent to Closing. The obligations of the Shareholders, and each of them,
to consummate the Plan of Reorganization in this Agreement shall be subject to the conditions
precedent specified in this Article 7.
7.02. Truth of Representations and Warranties and Compliance With Covenants. The
representations and warranties of Purchaser contained in this Agreement shall be true as of the
Closing Date with the same effect as though made on the Closing Date. Purchaser shall have
performed all obligations and complied with all covenants required by this Agreement to be
performed or complied with by it prior to the Closing Date. Purchaser shall deliver to the
Shareholders a certificate, in the form of Schedule 7.02 attached hereto and made a part hereof,
dated as of the Closing Date and signed by the President or a Vice President of Purchaser,
certifying the truth of the representations and warranties.
7.03. Opinion of Counsel for Purchaser. Purchaser shall deliver to the Shareholders an opinion
of counsel for the Purchaser, referred to as “Purchaser’s Counsel”, dated the Closing Date, to the
effect that:
(a) Purchaser is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware with full corporate power to carry on the business in which it is
engaged;
(b) The shares of common stock of the Purchaser to be delivered to the Shareholders hereunder
will have been duly authorized and validly issued, and will be fully paid and non-assessable;
(c) The Certificate of Incorporation, the Bylaws, the minutes, share certificates and any
contracts to which the Purchaser is a party do not prevent the Purchaser from delivering good
title to the shares of its shares of common stock pursuant to the terms of this Agreement;
(d) This Agreement is the valid and binding obligation of the Purchaser, in accordance with its
terms, except as limited by bankruptcy, insolvency or other laws affecting the enforcement of
creditor’s rights;
(e) Purchaser’s Counsel has no knowledge of any facts that might adversely affect the title of
the Shareholders to the shares of common stock of Purchaser to be delivered pursuant to the
terms of this Agreement. Purchaser’s Counsel has no knowledge of any defects or limitations on
the title of the Purchaser to any of its assets or properties; and
(f) Purchaser’s Counsel has no knowledge of any litigation, or governmental investigation or
labor dispute pending or threatened against the Purchaser, its business or properties.
In rendering the opinion specified in this paragraph, Purchaser’s Counsel may rely on certificates
of public officials, certificates of officers of the Purchaser, and any other evidence that
Purchaser’s Counsel deems appropriate.
7.04. No Restrictions. No action or proceeding by any governmental body or agency shall have
been threatened, asserted or instituted to prohibit the consummation of the transactions
contemplated by this Agreement.
7.05. Certified Financial Statements. Purchaser is not aware of any facts that would prevent an
independent auditor from performing an audit of the financial statements of Purchaser.
7.06. Retention of Officers and Directors. The present officers and directors of Purchaser shall
remain in office subsequent to the Closing and until their earlier resignation or removal.
7.07. No Restrictions. No action or proceeding by any governmental body or agency shall be
threatened, asserted or instituted that prohibits the consummation of the transactions
contemplated by this Agreement.
ARTICLE 8
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
8.01. Conditions Precedent to Closing. The obligations of Purchaser to consummate the Plan of
Reorganization in this Agreement shall be subject to the conditions precedent specified in this
Article 8.
8.02. Truth of Representations and Warranties and Compliance With Covenants. The
representations and warranties of the Shareholders, and each of them, contained in this
Agreement shall be true as of the Closing Date, with the same effect as though made on the
Closing Date. The Shareholders, and each of them, shall have performed all obligations and
complied with all covenants required by this Agreement to be performed or complied with by
them prior to the Closing Date. Principal Shareholder shall deliver to Purchaser a certificate, in
the form of Schedule 8.02 attached hereto and made a part hereof, dated the Closing Date and
signed by him, certifying the truth of the representations and warranties.
8.03. Certified Financial Statements. Principal Shareholder is not aware of any facts that would
prevent an independent auditor from performing an audit of the financial statements of Acquired
Corporation.
8.04. Retention of Officers and Directors. The present officers and directors of Acquired
Corporation shall remain in office subsequent to the Closing and until their earlier resignation or
removal.
8.05. No Restrictions. No action or proceeding by any governmental body or agency shall be
threatened, asserted or instituted that prohibits the consummation of the transactions
contemplated by this Agreement.
8.08. No Contracts Terminated. Acquired Corporation shall not have terminated any contracts
prior to the Closing Date that, in the aggregate would materially and adversely affect its business.
8.09. No Damage to Assets. At the Closing Date, the machinery, equipment, inventory or other
tangible property of Acquired Corporation shall not be damaged by fire, flood, accident, labor
strife, act of war or any other cause beyond the reasonable power and control of the Acquired
Corporation or the Shareholders to an extent that substantially affects the value of the property
and assets. Loss or damage shall be considered to affect substantially the value of the properties
and assets within the meaning of this paragraph, if the book value of the properties and assets lost
or damaged exceeds ten percent (10%) of the total book value of all assets of Acquired
Corporation.
ARTICLE 9
SURVIVAL OF WARRANTIES AND INDEMNIFICATION
9.01. Nature and Survival of Representations and Warranties. All statements of fact contained
in this Agreement, or in any memorandum, certificate, letter, document or other instrument
delivered by or on behalf of Acquired Corporation, Purchaser or the Shareholders pursuant to this
Agreement shall be deemed representations and warranties made by any such party, respectively,
to each other party under this Agreement. The covenants, representations and warranties of
Purchaser and the Shareholders shall survive the Closing Date, and all inspections, examinations,
or audits on behalf of the parties and the Shareholders for a period of one year following the
Closing Date, except that the same shall survive for a period of three years with respect to issues
relating to fraud and federal income taxes.
9.02. Indemnification by Principal Shareholder. Principal Shareholder agrees to indemnify and
hold Purchaser and Acquired Corporation harmless after the date of this Agreement in respect to
any damages as defined in this Paragraph 9.02. Damages, as used in this paragraph, shall include
any claim, action, demand, loss, cost, expense, liability, penalty and other damage, including, but
not limited to, attorney’s fees and other costs and expenses incurred attempting to avoid damages
or in enforcing this indemnity, resulting to Purchaser or Acquired Corporation from:
(a) Any materially inaccurate representation made by or on behalf of the Shareholders in or
pursuant to this Agreement;
(b) Material breach of any of the warranties by the Shareholders in or pursuant to this
Agreement; or
(c) Material breach or default of any of the obligations to be performed by the Shareholders
under this Agreement.
Principal Shareholder shall be required to reimburse Purchaser for any payment made or loss
suffered by Purchaser or Acquired Corporation, at any time after the Closing Date, based on the
judgment of any arbitrator or any court of competent jurisdiction or pursuant to a bona fide
compromise or settlement of claims, demands or actions with respect to any damages described
in this paragraph.
9.03. Indemnification by Purchaser. The Purchaser agrees to indemnify and hold the
Shareholders harmless after the date of this Agreement in respect to any damages as defined in
this Paragraph 9.03. Damages, as used in this paragraph, shall include any claim, action,
demand, loss, cost, expense, liability, penalty and other damage, including, but not limited to,
attorney’s fees and other costs and expenses incurred attempting to avoid damages or in
enforcing this indemnity, resulting to the Shareholders from:
(a) Any materially inaccurate representation made by or on behalf of the Purchaser in or
pursuant to this Agreement;
(b) Material breach of any warranty by the Purchaser in or pursuant to this Agreement; or
(c) Material breach or default of any of the obligations to be performed by the Purchaser under
this Agreement.
Purchaser shall be required to reimburse the Shareholders for any payment made or loss suffered
by the Shareholders, at any time after the Closing Date, based on the judgment of any arbitrator
or any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of
claims, demands or actions with respect to any damages described in this paragraph.
9.04. Expenses. The Shareholders shall pay all of their own expenses incurred by them arising
out of this Agreement and the transactions contemplated in this Agreement, including, but not
limited to, all fees and expenses of their counsel and accountants. Whether or not this
Agreement is terminated, each of the parties shall bear all expenses incurred by them in
connection with this Agreement and in the consummation of the transactions contemplated by,
and in preparation of, this Agreement.
ARTICLE 10
COMPLIANCE WITH SECURITIES LAWS
10.01. (a) Unregistered Stock Under Federal Securities Act. The Shareholders, and each of
them, acknowledge that the shares of the Purchaser’s Common Stock to be delivered to the
Shareholders pursuant to this Agreement have not been registered under the Securities Act of
1933, as amended (the “1933 Act”), and that, therefore, the shares of Purchaser Common Stock
are not transferable, except as permitted under various exemptions contained in the 1933 Act and
the Rules of the Securities and Exchange Commission under the 1933 Act. The provisions
contained in this paragraph 10.01 are intended to ensure compliance with the 1933 Act.
(b) No Distribution of Stock to Public. The Shareholders, and each of them, represent and
warrant to Purchaser that the Shareholders are acquiring the shares of the Purchaser’s Common
Stock under this Agreement for the Shareholders’ respective accounts for investment, and not for
the purpose of resale or any other distribution of the shares. The Shareholders, and each of them,
also represent and warrant that the Shareholders have no present intention of disposing of all or
any part of such shares at any particular time, for any particular price or on the happening of any
particular circumstances. The Shareholders, and each of them, acknowledge that the Purchaser is
relying on the truth and accuracy of the warranties and representations set forth in this paragraph
in issuing the shares, without first registering the shares under the 1933 Act.
(c) No Transfers in Violation of the 1933 Act. The Shareholders, and each of them, covenant
and represent that none of the shares of Purchaser’s Common Stock that will be issued to the
Shareholders pursuant to this Agreement will be offered, sold, assigned, pledged, transferred or
otherwise disposed of, except after full compliance with all of the applicable provisions of the
1933 Act and the rules and regulations of the Securities and Exchange Commission under the
1933 Act. Therefore, the Shareholders, and each of them, agree not to sell or otherwise dispose
of any of the shares of the Purchaser’s Common Stock received pursuant to this Agreement,
unless the Shareholders:
(i) Have delivered to Purchaser a written legal opinion in form and substance satisfactory to
counsel for Purchaser, to the effect that the disposition is permissible under the terms of the 1933
Act and regulations under the 1933 Act;
(ii) Have complied with the registration and prospectus requirements of the 1933 Act relating
to such a disposition; or
(iii) Have presented Purchaser satisfactory evidence that such a disposition is exempt from
registration under the 1933 Act.
Purchaser shall place a stop transfer order against transfer of shares, until one of the conditions
set forth in this paragraph has been met.
(d) Investment Legend on Certificates. The Shareholders, and each of them, agree that the
certificates evidencing the shares of Purchaser Common Stock the Shareholders will receive
under this Agreement will contain the following, or substantially similar, legend:
“THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND HAVE BEEN TAKEN FOR
INVESTMENT. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE
UNLESS A REGISTRATION STATEMENT UNDER THE FEDERAL SECURITIES ACT OF
1933, AS AMENDED, IS IN EFFECT AS TO THE SECURITIES, OR AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS IN FACT APPLICABLE
TO SUCH OFFER OR SALE.”
(e) Indemnification by the Shareholders. If, at any time in the future, the Shareholders sell or
otherwise dispose of any of the shares of Common Stock received from Purchaser in violation of
the provisions of the 1933 Act or the Rules and Regulations of the Securities and Exchange
Commission promulgated thereunder, or any similar federal or state law, rule or regulation that
may then be in effect, the Shareholders, and each of them, agree to indemnify and hold harmless
Purchaser against any claims, liabilities, penalties, costs and expenses that may be asserted
against or suffered by Purchaser as a result of such disposition.
ARTICLE 11
TERMINATION
11.01. Default. Purchaser or the Shareholders may, by written notice, on or at any time prior to
the Closing Date, terminate this Agreement by notice to the other party in the event:
(a) One party has determined that any material representation of the other party is untrue;
(b) The other party has defaulted under the Agreement by failing to perform any of its covenants
and agreements contained in this Agreement; and
(c) Each default has not been fully cured within three (3) days after receipt of the notice
specifying particularly the nature of the default.
11.02. Delay. If consummation of the transaction specified in this Agreement has not occurred
by 11:59 p.m., central time, on April 15, 2007, any party that is not in default in the timely
performance of any of its covenants and conditions may terminate this Agreement subsequent to
that time by giving written notice of termination to the other party. The written notice of
termination shall be effective upon the delivery of the notice in person to an officer of the party
or, if served by mail, upon the receipt of the notice by such party.
11.03. Damage or Loss. Purchaser may, at its option, terminate this Agreement prior to the
Closing Date, if Acquired Corporation has suffered any damage, destruction or loss (whether or
not covered by insurance) that materially and adversely affects the property, business or financial
condition of Acquired Corporation Damage, destruction or loss shall be considered materially
and adversely to affect the properties, business or financial condition of Acquired Corporation if
the book or market value (whichever is lower) of the assets damaged, destroyed or lost exceeds
ten percent (10%) in book or market value (whichever is lower) of all assets of Acquired
Corporation.
ARTICLE 12
MISCELLANEOUS
12.01. Public Announcements. Purchaser shall have the exclusive right to issue a press release
or otherwise make any public statements with respect to the existence of this Agreement or the
transactions contemplated by this Agreement.
12.02. Amendments. This Agreement may be amended or modified at any time and in any
manner only by an instrument in writing executed by all parties.
12.03. Waiver. Either Purchaser or the Shareholders may, in writing:
(a) Extension of Time. Extend the time, to a date certain, for the performance of any of the
obligations of any other party to the Agreement.
(b) Waiving Inaccuracies. Waive any inaccuracies and misrepresentations contained in this
Agreement or any document delivered pursuant to this Agreement made by any other party to this
Agreement.
(c) Waiving Compliance With Covenants. Waive compliance with any of the covenants or
performance of any obligations contained in this Agreement by any other party to this
Agreement.
(d) Waiving Satisfaction of Condition Precedent or Condition Subsequent. Waive the
fulfillment of any condition precedent or condition subsequent to the performance by any other
party to the Agreement.
12.04. Arbitration. All parties agree that any dispute arising between or among them related to
this Agreement or the performance hereof shall be submitted for resolution to the American
Arbitration Association for arbitration in Minneapolis, Minnesota, office of the Association
under the then-current rules of arbitration. The Arbitrator or Arbitrators shall have the authority
to award to the prevailing party its reasonable costs and attorneys fees. Any award of the
Arbitrators may be entered as a judgment in any court competent jurisdiction.
12.05. Assignment.
(a) Neither this entire Agreement nor any right created by the Agreement shall be assignable by
either the Shareholders or Purchaser, without the prior written consent of the other, except by the
laws of succession.
(b) Except as otherwise limited elsewhere herein, this Agreement shall be binding on, and inure
to the benefit of, the respective successors and assigns of the parties.
(c) Nothing in this Agreement, expressed or implied, is intended to confer upon any person,
other than the parties and their successors, any rights or remedies under this Agreement.
12.06. Notices. Any notice or other communication required or permitted by this Agreement
must be in writing and shall be deemed to be properly given when delivered in person to an
officer of the other party, when deposited in the United States mails for transmittal by certified or
registered mail, postage prepaid, or when deposited with a public telegraph company for
transmittal, charges prepaid, provided that the communication is addressed:
(a) If to Purchaser: with a copy to
ICrystal, Inc. Xxxxxx & Xxxxxx
0000 X.X. 00xx Xxxxxx 0000 X.X. 000, Xxxxx 000
Xxxxxxxx, Xxxx 00000 Xxxxxxxxxxx, Xxxxx 00000
(b) If to Shareholders:
Xxxx Xxxxxxxxx
000 Xxxx Xxxx
Xxxxx
Xxxxxxxx, XX
00000
Xxxxxxxxxxx
Xxxxxxx
0000 Xxxxx Xxxxx
Xxx. 000
Xxxxxx, Xxxxx
00000
Xxxx Xxxx
0000 Xxxxxxxx
Xxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxx
0000 000xx
Xxxxxx, XX 00000
Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX
00000
Xxxxxx X. Xxxxxxx
000 X. Xxxxxxxx
Xxxxxxxxxx, XX
00000
Xxxxxxx X. Xxxxxx
000 Xxxx Xxxx
Xxxxxxxxxx, XX
00000
Xxxxxx Xxxxxx
XX0 Xxx 0
Xxxxxxxxxxxxxxx, XX
00000
|
Xxxx Xxxxxx
0000 Xxxxxx Xxx
Xxxxxxxxxxxxxxx, XX
00000
Xxxxxx X. Xxxxx
0000 Xxx Xxxxxxx
000
Xxxxxxx, XX 00000
Xxxxx X. Xxxxx
0000 Xxx Xxxxxxx
000
Xxxxxxx, XX 00000
Xxxxxx Xxxxxx
000 X. Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx
000 Xxxxxx Xxxxx
X.X.
Xxxxx Xxxxxx, XX
00000
Xxxxx Xxxxx
X.X. Xxx 000
Xxxxxxxxxxx, XX
00000
Xxxxx Xxxxxxxxxxxx
0000 Xxx 0, Xxx
000
Xxxxxxxx, XX
00000
Xxxxxxx Xxxxxx
0000 Xxxxxx
Xxxxxx
Xxxxxxxxxxxxxxx, XX
00000
|
Xxxx Xxxxxxx
0000 Xxxxx
Xxxxxx
Xxxxxxx, Xxxx
00000
Xxxx Xxxxxx
Xxxxxxx
00000 X. 00xx
Xxxxxx, #00
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxx
000 Xxxxxxxx
Xxxxx
Xxxxxxxx, XX
00000
Xxxx Xxxxxxx
0000 Xxx. 00
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxxx
000 X. 0xx Xxxxxx,
Xxx. 000
Xxxxxxxxxxx, XX
00000
Xxx Xxx
0000 Xxxxxx Xx.,
Xxx.00X
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx
0000 X.X. 00xx
Xxxxxx, XX 00000
Xxxxx X. Xxxxxx
000 Xxxx
Xxxxxxxx
Xxxxxxxxx, XX
00000
|
Xxxx Xxxxxx
0000 000xx Xxxxxx
Xxxxxxxxxxxxxxx, XX
00000
Xxxxx X.
Xxxxxxxxxx
000 Xxxx Xxxx
Xxxxxx, XX 00000
Xxxxx X. Xxxxxx
000 Xxxx Xxxxx
Xxxxx
Xxxxx Xxxxx, XX
00000
Sun Bear, LLC
0000 Xxxxx Xxxxx
Xxx. 000
Xxxxxx, XX 00000
Ethanol Options,
LLC
000 Xxxx Xxxxxx
Xxxxx, XX 00000
M.E.P.
Construction, Inc.
0000 X. Xxxxxx
Xxxxxx
Xxxxxxxxxx, XX
00000
Xxxxxxxx Farm
Holdings LLC
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX
00000
|
12.07. Paragraph Headings. Paragraph and other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.
12.08. Entire Agreement. This instrument and the exhibits to this instrument contain the entire
Agreement between the parties with respect to the transaction contemplated by the Agreement. It
may be executed in any number of counterparts, but the aggregate of the counterparts together
constitute only one and the same instrument.
12.09. Effect of Partial Invalidity. In the event that any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this
Agreement, but this Agreement shall be constructed as if it never contained any such invalid,
illegal or unenforceable provisions.
12.10. Counterparts. This Agreement may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed shall be deemed to
be an original but all of which taken together shall constitute one and the same agreement.
12.11. Controlling Law. The validity, interpretation and performance of this agreement shall be
controlled by and construed under the laws of the State of Delaware.
12.12. Specific Performance. The parties declare that it is impossible to measure in money the
damages that will accrue to a party or its successors as a result of the other parties’ failure to
perform any of the obligations under this Agreement. Therefore, if a party or its successor
institutes any action or proceeding to enforce the provisions of this Agreement, any party
opposing such action or proceeding agrees that specific performance may be sought and obtained
for any breach of this Agreement.
Executed by Purchaser and the Shareholders as of the date first above written.
PURCHASER:
ICRYSTAL, INC.
By: /s/ XXXX
XXXXXXXXX
Xxxx Xxxxxxxxx
President
|
SHAREHOLDERS:
__________________________
Xxxxxx X. Xxxxx
as to 7,500 shares
__________________________
Xxxxx X. Xxxxx
as to 7,500 shares
|
SHAREHOLDERS:
__________________________
Xxxxxx X. Xxxxx
as to 15,000 shares
/s/ XXXX XXXXXXX
Xxxx Xxxxxxx
as to 39,375 shares
|
SHAREHOLDERS:
/s/ XXXX XXXXXXXXX
Xxxx Xxxxxxxxx
as to 503,571 shares
/s/ XXXXXXXXXXX
XXXXXXX
Xxxxxxxxxxx Xxxxxxx
as to 37,500 shares
__________________________
Xxxx Xxxx
as to 30,000 shares
__________________________
Xxxxxxx Xxxx
as to 15,000 shares
__________________________
Xxxxxx Xxxxxx
as to 7,500 shares
__________________________
Xxxxxx X. Xxxxxxx
as to 7,500 shares
__________________________
Xxxxxxx X. Xxxxxx
as to 7,500 shares
/s/ XXXX XXXXXX
XXXXXXX
Xxxx Xxxxxx Xxxxxxx
as to 15,000 shares
/s/ XXXXXX XXXXXXX
Xxxxxx Xxxxxxx
as to 1,000 shares
/s/ XXXXX X. BROGHAMMERJames R. Broghammeras to 142,857 shares
|
__________________________
Xxxxxx Xxxxxx
as to 30,000 shares
__________________________
Xxxx Xxxxxx
as to 15,000 shares
__________________________
Xxxxxx Xxxxxx
as to 30,000 shares
__________________________
Xxxxxxx X. Xxxxxxxx
as to 150,000 shares
__________________________
Xxxxx Xxxxx
as to 37,500 shares
__________________________
Xxxxx Xxxxxxxxxxxx
as to 7,500 shares
__________________________
Xxxxxxx Xxxxxx
as to 30,000 shares
__________________________
Xxxx Xxxxxxx
as to 7,500 shares
M.E.P. CONSTRUCTION,
INC.
By:
_______________________Name: _____________________Title: ______________________as to 7,500 shares
|
XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
as to 142,857 shares
__________________________
Xxx Xxx
as to 68,571 shares
XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxxx
as to 5,000 shares
/s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
as to 5,000 shares
__________________________
Xxxx Xxxxxx
as to 30,000 shares
SUN BEAR, LLC
By: /s/
Name:
____________________
Title:
_____________________
as to 435,000 shares
ETHANOL OPTIONS, LLC
By: /s/
Name:
____________________
Title:
_____________________
as to 30,000 shares
XXXXXXXX FARM
HOLDINGS LLC
By: /s/ Name: ____________________Title: _____________________as to 150,000 shares
|
