AGREEMENT CONCERNING THE EXCHANGE OF SECURITIES BY AND AMONG NEW DESIGN CABINETS, INC. AND STRATOS DEL PERU S.A.C. AND THE SECURITY HOLDERS OF STRATOS DEL PERU S.A.C.
AGREEMENT
CONCERNING
THE EXCHANGE OF SECURITIES
BY
AND AMONG
AND
STRATOS
DEL PERU S.A.C.
AND
THE
SECURITY HOLDERS OF STRATOS
DEL PERU S.A.C.
AGREEMENT
CONCERNING THE EXCHANGE OF SECURITIES
THIS
AGREEMENT CONCERNING THE EXCHANGE OF SECURITIES (“Agreement”)
is
made as of this 14th day of November, 2007, by and among New Design Cabinets,
Inc., a Nevada corporation (“NDC”),
Stratos Del Peru S.A.C., a Peruvian corporation (“Stratos”),
and
the security holders of Stratos (the “Stratos
Security Holders”)
who
are listed on Exhibit
A
hereto
and have executed Subscription Agreements in the forms attached in Exhibit
B
or
Exhibit
C
hereto,
as applicable.
WHEREAS,
NDC desires to acquire 999 shares of the issued and outstanding common stock
of
Stratos from the Stratos Security Holders in exchange for newly issued
unregistered shares of common stock of NDC;
WHEREAS,
Stratos desires to assist NDC in acquiring 999 shares of the issued and
outstanding common stock of Stratos pursuant to the terms of this Agreement;
and
WHEREAS,
all of the Stratos Security Holders, by execution of Exhibit
B
or
Exhibit
C
hereto,
as applicable, agree to exchange 999 common shares they hold in Stratos for
45,000,000 shares of common stock of NDC, or 45,045.045 shares of common stock
of NDC for each share of Stratos.
NOW,
THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, the parties hereto agree as
follows:
ARTICLE
I
Exchange
of Securities
1.1 Issuance
of Securities.
Subject
to the terms and conditions of this Agreement, NDC agrees to issue and exchange
45,000,000 fully paid and non-assessable unregistered shares of the US $.001
par
value common stock of NDC (the “NDC
Shares”)
for
999 issued and outstanding shares of the S/. $1.00 par value common stock of
Stratos (the “Stratos
Shares”)
held
by the Stratos Security Holders. All NDC Shares will be issued directly to
the
Stratos Security Holders on the Closing Date (as hereinafter defined), pursuant
to the schedule set forth in Exhibit
A.
1.2 Exemption
from Registration.
The
parties hereto intend that all NDC common stock to be issued to the Stratos
Security Holders shall be exempt from the registration requirements of the
Securities Act of 1933, as amended (the “Act”),
pursuant to Section 4(2), Regulation D and/or Regulation S of the Act and rules
and regulations promulgated thereunder. In furtherance thereof, each of the
Stratos Security Holders will execute and deliver to NDC on the closing date
of
the transactions contemplated by this Agreement (the “Closing
Date”)
a copy
of the Subscription Agreement set forth in Exhibit
B
hereto
or Exhibit
C
hereto,
as applicable.
2
1.3 Corporate
Action.
On the
Closing Date, NDC shall: (i) amend and restate its Articles of Incorporation,
which amendment and restatement shall be in the form attached hereto as
Exhibit
D
and
shall be filed with the Nevada Secretary of State; and (ii) amend and restate
its Bylaws, which amendment and restatement shall be in the form attached hereto
as Exhibit
E.
Following the Closing Date, NDC shall: (i) change its name to Stratos Renewables
Corporation or a similar name selected by NDC’s Board of Directors; and (ii)
adopt a stock option or other securities incentive plan as NDC’s Board of
Directors shall reasonably determine.
1.4 NDC
Common Stock Outstanding.
Immediately following the Closing Date, NDC shall have a total of 55,000,000
shares outstanding, comprised of 45,000,000 shares (81.81% of the total shares
outstanding) held by the Stratos Security Holders and 10,000,000 shares (18.18%
of the total shares outstanding) retained by the original NDC
stockholders.
ARTICLE
II
Representations
and Warranties of Stratos
Stratos
hereby represents and warrants to NDC that:
2.1 Organization.
Stratos
is a corporation duly organized, validly existing and in good standing under
the
laws of Peru, has all necessary corporate power and authority to own its
properties and to carry on its business as now owned and operated by it, and
is
duly qualified to do business and is in good standing in each of the
jurisdictions where its business requires qualification.
2.2 Capital.
The
authorized capital stock of Stratos currently consists of 1,000 shares of S/.
$1.00 par value common stock, of which 1,000 shares of common stock are issued
and outstanding as of the date of this Agreement. All of the outstanding common
stock of Stratos is duly and validly issued, fully paid and non-assessable.
There are no outstanding subscriptions, options, rights, warrants, debentures,
instruments, convertible securities or other agreements or commitments
obligating Stratos to issue any additional shares of its capital stock of any
class.
2.3 Subsidiaries.
Stratos
does not have any subsidiaries or own any interest in any other
enterprise.
2.4 General
Manager and Attorney-in-Fact.
The
names and titles of the General Manager and the Attorney-in-Fact of Stratos
as
of the date of this Agreement are as follows:
|
Name
|
Position
|
|
|
Xxxxxx
Xxxxxxx Xxxxx
|
General
Manager
|
|
|
Xxxx
Xxxxxxxx
|
Attorney-in-Fact
|
As
of the
date of this Agreement, there are no other officers, directors or authorized
signatories of Stratos other than the foregoing.
3
2.5 Financial
Statements.
Exhibit
F
hereto
consists of the audited financial statements of Stratos for the period from
inception (February 27, 2007) through October 18, 2007 (the “Stratos
Financial Statements”).
The
Stratos Financial Statements have been prepared in accordance with generally
accepted accounting principles and practices in the United States of America
consistently followed by Stratos throughout the period indicated, and fairly
present the financial position of Stratos as of the date of the balance sheet
included in the Stratos Financial Statements and the results of operations
for
the period indicated. There are no material omissions or non-disclosures in
the
Stratos Financial Statements.
2.6 Absence
of Changes.
Since
October 18, 2007, there has not been any material change in the financial
condition or operations of Stratos, except as contemplated by this Agreement.
As
used throughout this Agreement, “material” means: Any change or effect (or
development that, insofar as can be reasonably foreseen, is likely to result
in
any change or effect) that causes substantial increase or diminution in the
business, properties, assets, condition (financial or otherwise) or results
of
operations of a party. Taken as a whole, material change shall not include
changes in national or international economic conditions or industry conditions
generally; changes or possible changes in statutes and regulations applicable
to
a party; or the loss of employees, customers or suppliers by a party as a direct
or indirect consequence of any announcement relating to this
transaction.
2.7 Absence
of Undisclosed Liabilities.
As of
October
18, 2007,
Stratos
did not have any material debt, liability or obligation of any nature, whether
accrued, absolute, contingent or otherwise, and whether due or to become due,
that is not reflected in the Stratos Financial Statements.
2.8 Tax
Returns.
Within
the times and in the manner prescribed by law, Stratos has filed all
governmental tax returns required by law and has paid all taxes, assessments
and
penalties due and payable. The provisions for taxes, if any, reflected in
Exhibit
F
are
adequate for the periods indicated. There are no present disputes as to taxes
of
any nature payable by Stratos. Notwithstanding anything to the contrary in
this
Section 2.8, Stratos acknowledges that it could become liable for certain tax
liabilities of GTC in connection with Stratos’ purchase of certain assets
pursuant to that
certain
asset purchase agreement, dated as of October 18, 2007, by and between Stratos
and Gabinete Tecnico De Cobranzas S.A.C. (“GTC”),
subject to that certain waiver, dated as of October 24, 2007, made by GTC,
as
amended by that certain amendment, dated as of October 30, 2007, by and between
Stratos and GTC, and as further amended by that certain amendment, dated as
of
November 9, 2007, by and between Stratos and GTC (collectively, the
“Asset
Purchase Agreement”),
and
estimates that such tax liability would not exceed Three Hundred Fifty Thousand
Dollars ($350,000).
2.9 Investigation
of Financial Condition.
Without
in any manner reducing or otherwise mitigating the representations contained
herein, NDC, its legal counsel and accountants shall have the opportunity to
meet with Stratos’ accountants and attorneys to discuss the financial condition
of Stratos during reasonable business hours and in a manner that does not
interfere with the normal operation of Stratos’ business. Stratos shall make
available to NDC all books and records of Stratos; provided, however, that
Stratos will be under no obligation to provide any information subject to
confidentiality provisions or waive any privilege associated with any such
information.
4
2.10 Intellectual
Property Rights.
Stratos
does not have any patents, trademarks, service marks, trade names, copyrights
or
other intellectual property rights, other than name reservations reserving
the
name “Stratos Renewables Corporation” in the States of Delaware and Nevada and
common law trademark rights to such corporate name. Stratos is researching
the
availability of Peruvian trademark protection for the names “Stratos del Peru”,
“Stratos Renewables Corporation” and certain logos.
2.11 Compliance
with Laws.
To the
best of Stratos’ knowledge, Stratos has complied with, and is not in violation
of, applicable statutes, laws and regulations, including applicable securities
laws, except where such non-compliance would not have a material adverse impact
upon its business or properties.
2.12 Litigation.
Stratos
is not a defendant in any suit, action, arbitration or legal, administrative
or
other proceeding, or governmental investigation which is pending or, to the
best
knowledge of Stratos, threatened against or affecting Stratos or its business,
assets or financial condition. Stratos is not in default with respect to any
order, writ, injunction or decree of any federal, state, local or foreign court,
department, agency or instrumentality applicable to it. Stratos is not engaged
in any material litigation to recover monies due to it.
2.13 Authority.
The
General Manager of Stratos has authorized the execution of this Agreement and
the consummation of the transactions contemplated herein, and Stratos has full
power and authority to execute, deliver and perform this Agreement, and this
Agreement is a legal, valid and binding obligation of Stratos and is enforceable
in accordance with its terms and conditions, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency or other
similar laws affecting the enforcement of creditor’s rights
generally.
2.14 Ability
to Carry Out Obligations.
To the
best of Stratos’ knowledge, the execution and delivery of this Agreement by
Stratos and the performance by Stratos of its obligations hereunder in the
time
and manner contemplated will not cause, constitute or conflict with or result
in
(a) any breach or violation of any of the provisions of or constitute a default
under any license, indenture, mortgage, instrument, articles of incorporation,
bylaws, constating documents or other agreement or instrument to which Stratos
is a party, or by which it may be bound, nor will any consents or authorizations
of any party other than those hereto or disclosed herein be required, (b) an
event that would permit any party to any agreement or instrument to terminate
it
or to accelerate the maturity of any indebtedness or other obligation of
Stratos, or (c) an event that would result in the creation or imposition of
any
lien, charge or encumbrance on any asset of Stratos.
2.15 Full
Disclosure.
None of
the representations and warranties made by Stratos herein or in any exhibit,
certificate or memorandum furnished or to be furnished by Stratos, or on its
behalf, contains or will contain any untrue statement of material fact or omit
any material fact the omission of which would be misleading.
5
2.16 Assets.
Stratos’ assets are fully included in Exhibit
F
and are
not subject to any claims or encumbrances except as indicated in Exhibit
F.
2.17 Material
Contracts.
Stratos
does not have any material contracts, except for: (a) that certain
Distribution/Offtake Agreement, dated September 19, 2007, by and between Stratos
and Petrox SAC; (b) the Asset Purchase Agreement; (c) that certain escrow
agreement, dated as of October 18, 2007, by and among Stratos, GTC and Banco
Continental, as amended by that certain amendment, dated as of October 30,
2007,
as further amended by that certain amendment, dated as of November 9, 2007;
and
(d) that certain depository agreement, dated as of October 18, 2007, by and
among Stratos, GTA and Xxxxxx Xxxxxxxxx Pasapera, an individual, as amended
by
that certain amendment, dated as of October 30, 2007, as further amended by
that
amendment, dated as of November 9, 2007.
2.18 Indemnification.
Stratos
agrees to indemnify, defend and hold NDC harmless against and in respect of
any
and all claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries and deficiencies, including interest, penalties and
reasonable attorney fees asserted by third parties against NDC which arise
out
of, or result from (i) any breach by Stratos in performing any of its covenants
or agreements under this Agreement or in any schedule, certificate, exhibit
or
other instrument furnished or to be furnished by Stratos under this Agreement,
(ii) a failure of any representation or warranty in this Article II or (iii)
any
untrue statement made by Stratos in this Agreement.
2.19 Criminal
or Civil Acts.
For the
period of five years prior to the execution of this Agreement, no executive
officer, director or principal stockholder of Stratos has been convicted of
a
felony crime, filed for personal bankruptcy, been the subject of a Securities
and Exchange Commission (“Commission”)
or
National Association of Securities Dealers (“NASD”)
judgment or decree, or is currently the subject to any investigation in
connection with a felony crime or Commission or NASD proceeding.
2.20
Restricted
Securities.
Stratos
and the Stratos Security Holders, by execution of this Agreement and of
Exhibit
B
or
Exhibit
C,
as
applicable, acknowledge that all of the NDC Shares issued by NDC are restricted
securities and none of such securities may be sold or publicly traded except
in
accordance with the provisions of the Act.
ARTICLE
III
Representations
and Warranties of NDC
NDC
hereby represents and warrants to Stratos that:
3.1 Organization.
NDC is
a corporation duly organized, validly existing and in good standing under the
laws of Nevada, has all necessary corporate power and authority to own its
properties and to carry on its business as now owned and operated by it, and
is
duly qualified to do business and is in good standing in each of the states
where its business requires qualification.
6
3.2 Capital.
The
authorized capital stock of NDC currently consists of 100,000,000 shares of
$.001 par value common stock, of which 10,000,000 shares of common stock are
issued and outstanding as of the date hereof. All of the outstanding common
stock of NDC is duly and validly issued, fully paid and non-assessable. There
are no outstanding subscriptions, options, rights, warrants, debentures,
instruments, convertible securities or other agreements or commitments
obligating NDC to issue any additional shares of its capital stock of any
class.
3.3 Subsidiaries.
NDC
does not have any subsidiaries or own any interest in any other
enterprise.
3.4 Director
and Officers.
The
sole Director of NDC is Xxxxxxx Xxxxxxx, an individual. The officers of NDC
are
Xxxxxxx Xxxxxxx, Chief Executive Officer, Chief Financial Officer, and Xxxx
Xxxxxxx, Secretary and Treasurer.
3.5 Financial
Statements.
Exhibit
G
hereto
consists of the audited financial statements of NDC for the year ended December
31, 2006 and the unaudited financial statements of NDC for the six months ended
September 30, 2007 (the “NDC
Financial Statements”).
The
NDC Financial Statements have been prepared in accordance with generally
accepted accounting principles and practices consistently followed by NDC
throughout the periods indicated, and fairly present the financial position
of
NDC as of the date of the balance sheets included in the NDC Financial
Statements and the results of operations for the periods indicated. There are
no
material omissions or non-disclosures in the NDC Financial
Statements.
3.6 Absence
of Changes.
Since
September 30, 2007, there has not been any material change in the financial
condition or operations of NDC, except as contemplated by this
Agreement.
3.7 Absence
of Undisclosed Liabilities.
NDC
does not have any material debt, liability or obligation of any nature, whether
accrued, absolute, contingent or otherwise, and whether due or to become due,
that is not reflected in the NDC Financial Statements.
3.8 Tax
Returns.
Within
the times and in the manner prescribed by law, NDC has filed all governmental
tax returns required by law and has paid all taxes, assessments and penalties
due and payable. The provisions for taxes, if any, reflected in Exhibit
G
are
adequate for the periods indicated. There are no present disputes as to taxes
of
any nature payable by NDC.
3.9 Investigation
of Financial Condition.
Without
in any manner reducing or otherwise mitigating the representations contained
herein, Stratos, its legal counsel and accountants shall have the opportunity
to
meet with NDC’s accountants and attorneys to discuss the financial condition of
NDC. NDC shall make available to Stratos all books and records of
NDC.
3.10 Intellectual
Property Rights.
NDC
does not have any patents, trademarks, service marks, trade names, copyrights
or
other intellectual property rights.
7
3.11 Compliance
with Laws.
NDC has
complied with, and is not in violation of, applicable federal, state or local
statutes, laws or regulations including federal and state securities
laws.
3.12 Litigation.
NDC is
not a defendant in any suit, action, arbitration, or legal, administrative
or
other proceeding, or governmental investigation which is pending or, to the
best
knowledge of NDC, threatened against or affecting NDC or its business, assets
or
financial condition. NDC is not in default with respect to any order, writ,
injunction or decree of any federal, state, local or foreign court, department,
agency or instrumentality applicable to it. NDC is not engaged in any material
litigation to recover monies due to it.
3.13 Authority.
The
Board of Directors of NDC has authorized the execution of this Agreement and
the
transactions contemplated herein, and NDC has full power and authority to
execute, deliver and perform this Agreement, and this Agreement is the legal,
valid and binding obligation of NDC, and is enforceable in accordance with
its
terms and conditions, except
to
the extent that such enforceability may be limited by applicable bankruptcy,
insolvency or other similar laws affecting the enforcement of creditor’s rights
generally.
3.14 Ability
to Carry Out Obligations.
The
execution and delivery of this Agreement by NDC and the performance by NDC
of
its obligations hereunder will not cause, constitute or conflict with or result
in (a) any breach or violation of any of the provisions of or constitute a
default under any license, indenture, mortgage, instrument, article of
incorporations, bylaws or other agreement or instrument to which NDC is a party,
or by which it may be bound, nor will any consents or authorizations of any
party other than those hereto be required, (b) an event that would permit any
party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of NDC, or (c) an event that
would result in the creation or imposition of any lien, charge or encumbrance
on
any asset of NDC.
3.15 Full
Disclosure.
None of
the representations and warranties made by NDC herein, or in any exhibit,
certificate or memorandum furnished or to be furnished by NDC or on its behalf,
contains or will contain any untrue statement of material fact or omit any
material fact the omission of which would be misleading.
3.16 Assets.
NDC’s
assets
are fully included in Exhibit
G
and are
not subject to any claims or encumbrances except as indicated in Exhibit
G.
3.17 Material
Contracts.
NDC has
no material contracts.
3.18 Indemnification.
NDC
agrees to indemnify, defend and hold Stratos and the Stratos Security Holders
harmless against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorney fees asserted by third
parties against Stratos and/or the Stratos Security Holders, which arise out
of,
or result from (i) any breach by NDC in performing any of its covenants or
agreements under this Agreement or in any schedule, certificate, exhibit or
other instrument furnished or to be furnished by NDC under this Agreement,
(ii)
a failure of any representation or warranty in this Article III, or (iii) any
untrue statement made by NDC in this Agreement.
8
3.19 Criminal
or Civil Acts.
For the
period of five years prior to the execution of this Agreement, no executive
officer, director or principal stockholder of NDC has been convicted of a felony
crime, filed for personal bankruptcy, been the subject of a Commission or NASD
judgment or decree, or is currently the subject to an investigation in
connection with any felony crime or Commission or NASD proceeding.
3.20 Bulletin
Board Trading Status.
NDC
shall be in compliance with all requirements for, and its common stock shall
be
quoted on, the Electronic Over-the-Counter Bulletin Board system on the date
immediately prior to the Closing Date, such that the common stock of NDC may
continue to be so quoted without interruption following the Closing
Date.
3.21 Securities
Filings.
Since
April 14, 2005, NDC has filed all reports, schedules, forms, statements and
other documents required to be filed by it with the Commission pursuant to
the
reporting requirements of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”)
(all
of the foregoing filed prior to the date hereof and all exhibits included
therein and financial statements, notes and schedules thereto and documents
incorporated by reference therein being hereinafter referred to as the
“SEC
Documents”).
NDC
has delivered to Stratos and to the Stratos Securities Holders or their
respective representatives true, correct and complete copies of the SEC
Documents not available on the XXXXX system. As of their respective dates,
the
SEC Documents complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder applicable to the SEC Documents, and none of the SEC Documents,
at
the time they were filed with the Commission, contained any untrue statement
of
a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading. As of their
respective dates, the financial statements of NDC included in the SEC Documents
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the Commission with
respect thereto. Such financial statements have been prepared in accordance
with
generally accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be condensed or
summary statements) and fairly present in all material respects the financial
position of NDC as of the dates thereof and the results of its operations and
cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments).
9
ARTICLE
IV
Covenants
Prior to the Closing Date
4.1 Investigative
Rights.
Prior
to the Closing Date, each party shall provide to the other party, and such
other
party’s counsel, accountants, auditors and other authorized representatives,
full access during normal business hours and upon reasonable advance written
notice to all of each party’s properties, books, contracts, commitments and
records for the purpose of examining the same. Each party shall furnish the
other party with all information concerning each party’s affairs as the other
party may reasonably request. If during the investigative period one party
learns that a representation of the other party was not accurate, no such claim
may be asserted by the party so learning that a representation of the other
party was not accurate.
4.2 Conduct
of Business.
Prior
to the Closing Date, each party shall conduct its business in the normal course
and shall not sell, pledge or assign any assets without the prior written
approval of the other party, except in the normal course of business. Except
as
may be described in this Agreement, prior to the Closing Date, neither party
shall (a) amend its Articles of Incorporation or Bylaws, declare dividends,
or
redeem or sell stock or other securities, or (b) enter into negotiations with
any third party or complete any transaction with a third party involving the
sale of any of its assets or the exchange of any of its common
stock.
4.3 Confidential
Information.
Each
party will treat all non-public, confidential and trade secret information
received from the other party as confidential, and such party shall not disclose
or use such information in a manner contrary to the purposes of this Agreement.
Moreover, all such information shall be returned to the other party in the
event
this Agreement is terminated.
4.4 Notice
of Non-Compliance.
Each
party shall give prompt notice to the other party of any representation or
warranty made by it in this Agreement becoming untrue or inaccurate in any
respect or the failure by it to comply with or satisfy in any material respect
any covenant, condition or agreement to be complied with or satisfied by it
under this Agreement.
ARTICLE
V
Conditions
Precedent to NDC’s Performance
5.1 Conditions.
NDC’s
obligations hereunder shall be subject to the satisfaction at or before the
Closing Date of all the conditions set forth in this Article V. NDC may waive
any or all of these conditions in whole or in part without prior notice;
provided, however, that no such waiver of a condition shall constitute a waiver
by NDC of any other condition of or any of NDC’s other rights or remedies, at
law or in equity, if Stratos shall be in default of any of its representations,
warranties or covenants under this Agreement.
5.2 Accuracy
of Representations.
Except
as otherwise permitted by this Agreement, all representations and warranties
by
Stratos in this Agreement or in any written statement that shall be delivered
to
NDC by Stratos under this Agreement shall be true and accurate on and as of
the
Closing Date as though made at that time.
10
5.3 Performance.
Stratos
shall have performed, satisfied and complied with all covenants, agreements
and
conditions required by this Agreement to be performed or complied with by it
on
or before the Closing Date.
5.4 Absence
of Litigation.
No
action, suit or proceeding, including injunctive actions, before any court
or
any governmental body or authority, pertaining to the transaction contemplated
by this Agreement or to its consummation, shall have been instituted or
threatened against Stratos on or before the Closing Date.
5.5 Officer’s
Certificate.
Stratos
shall have delivered to NDC a certificate dated the Closing Date signed by
the
Attorney-in-Fact of Stratos certifying that each of the conditions specified
in
this Article has been fulfilled and that all of the representations set forth
in
Article II are true and correct as of the Closing Date.
5.6 Corporate
Action.
Stratos
shall have obtained the approval of the Stratos Security Holders for the
transaction contemplated by this Agreement as evidenced by the Stratos Security
Holders holding the Stratos Shares executing Exhibit
B
or
Exhibit
C,
as
applicable.
ARTICLE
VI
Conditions
Precedent to Stratos’ Performance
6.1 Conditions.
Stratos’ obligations hereunder shall be subject to the satisfaction at or before
the Closing Date of all the conditions set forth in this Article VI. Stratos
may
waive any or all of these conditions in whole or in part without prior notice;
provided, however, that no such waiver of a condition shall constitute a waiver
by Stratos of any other condition of or any of Stratos’ other rights or
remedies, at law or in equity, if NDC shall be in default of any of its
representations, warranties or covenants under this Agreement.
6.2 Accuracy
of Representations.
Except
as otherwise permitted by this Agreement, all representations and warranties
by
NDC in this Agreement or in any written statement that shall be delivered to
Stratos by NDC under this Agreement shall be true and accurate on and as of
the
Closing Date as though made at that time.
6.3 Performance.
NDC
shall have performed, satisfied and complied with all covenants, agreements
and
conditions required by this Agreement to be performed or complied with by it
on
or before the Closing Date.
6.4 Absence
of Litigation.
No
action, suit or proceeding before any court or any governmental body or
authority, pertaining to the transaction contemplated by this Agreement or
to
its consummation, shall have been instituted or threatened against NDC on or
before the Closing Date.
11
6.5 Officer’s
Certificate.
NDC
shall have delivered to Stratos a certificate dated the Closing Date signed
by
the Chief Executive Officer of NDC certifying that each of the conditions
specified in this Article has been fulfilled and that all of the representations
set forth in Article III are true and correct as of the Closing
Date.
6.6 Payment
of Liabilities. On
or
before the Closing Date, NDC shall have paid any outstanding obligations and
liabilities of NDC through the Closing Date, including obligations created
subsequent to the execution of this Agreement.
6.7 Amendment
of Charter Documents.
On the
Closing Date, the existing sole Director and stockholders of NDC shall cause
the
Articles of Incorporation of NDC to be amended and restated and the Bylaws
of
NDC to be amended and restated pursuant to Section 1.3.
6.8 Directors
of NDC.
On the
Closing Date, the existing sole Director of NDC shall appoint the following
individuals as directors of NDC and shall resign as a Director of NDC:
|
Luis
Francisco de las Xxxxx
|
Xxxxxx
Magami (Chairman)
|
|
|
Xxxx
Xxxxxxxx
|
Xxxxxx
Xxxxxxx Xxxxx
|
6.9 Officers
of NDC.
On the
Closing Date, the existing sole Director of NDC shall appoint the following
individuals as officers of NDC and NDC’s existing officers shall
resign:
|
Name
|
Position
|
|
|
Xxxxxx
Xxxxxxx Xxxxx
|
Chief
Executive Officer
|
|
|
Xxxx
Xxxxxxxx
|
President
|
|
|
Xxxxx
Xxxxxxx Aza
|
Chief
Operating Officer
|
|
|
Xxxxx
Xxxxx Xxxxxx
|
Chief
Financial Officer and Treasurer
|
|
|
Xxxxxxx
Xxxxxxxx
|
Secretary
|
ARTICLE
VII
Closing
7.1 Closing.
The
closing of the transactions contemplated by this Agreement shall be held at
the
offices of Loeb & Loeb LLP, 00000 Xxxxx Xxxxxx Xxxx., Xxxxx 0000, Xxx
Xxxxxxx, XX 00000, at any mutually agreeable time and date prior to March 31,
2008, unless extended by mutual agreement. At the closing:
12
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(a)
|
Stratos
shall deliver to NDC (i) copies of Exhibit
B
or
Exhibit
C,
as applicable, executed by all of the Stratos Security Holders, (ii)
certificates representing 999 outstanding Stratos Shares duly endorsed
to
NDC, and (iii) the
officer’s certificate described in Section 5.5;
and
|
|
(b)
|
NDC
shall deliver to the Stratos Security Holders (i) certificates
representing an aggregate of 45,000,000 shares of NDC’s common stock
for
which the Stratos Shares have been exchanged pursuant to the computations
set forth in Exhibit
A
hereto, (ii) the officer’s certificate described in Section 6.5, (iii)
signed resolutions of its directors approving this Agreement, and
(iv)
resignations from its directors and executive officers pursuant to
Sections 6.8 and 6.9.
|
ARTICLE
VIII
Covenants
Subsequent to the Closing Date
8.1 Registration
and Listing.
Following the Closing Date, NDC shall use its best efforts to continue NDC’s
common stock quotation on the Electronic Over-the-Counter Bulletin Board
system.
8.2 Form
8K and Audit. Within
four (4) business days after the Closing Date, NDC shall file a report on Form
8-K with the Securities and Exchange Commission which shall include audited
financials for Stratos for the period from inception (February 27, 2007) through
October 18, 2007.
8.3 Other
Actions.
Following the Closing Date, NDC shall complete the corporate and other actions
described in Section 1.3 above.
ARTICLE
IX
Miscellaneous
9.1 Captions
and Headings.
The
Article and Section headings throughout this Agreement are for convenience
and
reference only and shall not define, limit or add to the meaning of any
provision of this Agreement. References in this Agreement to “S/.” refer to
Nuevos Soles.
9.2 Amendments.
This
Agreement may only be amended in a writing signed by all of the parties
hereto.
9.3 Non-Waiver.
The
failure of any party to insist in any one or more cases upon the performance
of
any of the provisions, covenants or conditions of this Agreement or to exercise
any option herein contained shall not be construed as a waiver or relinquishment
for the future of any such provisions, covenants or conditions. No waiver by
any
party of one breach by another party shall be construed as a waiver with respect
to any other subsequent breach.
13
9.4 Time
of Essence.
Time is
of the essence of this Agreement and of each and every provision
hereof.
9.5 Entire
Agreement.
This
Agreement contains the entire Agreement and understanding among the parties
hereto and supersedes all prior agreements and understandings.
9.6 Choice
of Law.
This
Agreement and its application shall be governed by the laws of the State of
Nevada without reference to conflicts of law principles. Each of the parties
hereto consents to the exclusive jurisdiction of the state and federal courts
sitting in Las Vegas, Nevada, in any action on a claim arising out of, under
or
in connection with this Agreement or the transactions contemplated by this
Agreement. Each of Stratos and NDC further agrees that personal jurisdiction
over it may be effected by service of process by registered or certified mail
addressed as provided in Section 9.8 and that when so made shall be as if served
upon it personally.
9.7 Counterparts.
This
Agreement may be executed simultaneously in one or more counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement may be executed and delivered by
facsimile and/or PDF signature.
9.8 Notices. All
notices, demands, elections, requests or other communications that any party
to
this Agreement may desire or be required to give hereunder shall be in writing
and shall be given by hand delivery or by internationally-recognized overnight
courier service providing confirmation of delivery, addressed as
follows:
NDC:
0000
X.
00xx
Xxxxx
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxxxx Xxxxxxx, Chief Executive Officer
Facsimile:
000-000-0000
with
copy
to:
Xxxx
X.
Agron, Esq.
0000
XXX
Xxxxxxx, Xxxxx 000
Xxxxxxxxx,
XX. 00000
Facsimile:
000-000-0000
Stratos:
c/o
Pure
Biofuels Corporation
Xx.
Xxxxxxx x Xxxxxxx 000, Xx 000
Xxx
Xxxxxx, Xxxx - Xxxx
Attn:
Xxxxxx Xxxxxxx Xxxxx, General Manager
Facsimile:
000-000-0000
14
with
copy
to:
Loeb
& Loeb LLP
00000
Xxxxx Xxxxxx Xxxx., Xxx. 0000
Xxx
Xxxxxxx, XX 00000
Attn:
Xxxxxxx X. Xxxxx, Esq.
Facsimile:
000-000-0000
Stratos
Security Holders:
See
Exhibit
A
Each
party shall have the right to designate another address or change in address
by
written notice to the other in the manner prescribed herein. All notices given
pursuant to this Section 9.8 shall be deemed to have been given (i) if delivered
by hand, on the date of delivery or on the date delivery was refused by the
addressee, or (ii) if delivered by internationally recognized overnight courier,
on the date of delivery as established by the return receipt or courier service
confirmation (or the date on which the return receipt or courier service
confirms that acceptance of delivery was refused by the addressee).
9.9 Assignment;
Binding Effect.
This
Agreement shall not be assignable by any party without the prior written consent
of the other parties hereto. Subject to the foregoing, this Agreement shall
inure to and be binding upon the heirs, executors, personal representatives,
successors and assigns of each of the parties to this Agreement.
9.10 Mutual
Cooperation.
The
parties hereto shall cooperate with each other to achieve the purpose of this
Agreement and shall execute such other and further documents and take such
other
and further actions as may be necessary or convenient to effect the transaction
described herein.
9.11 Finders.
There
are no finders in connection with this transaction.
9.12 Announcements.
The
parties will consult and cooperate with each other as to the timing and content
of any public announcements regarding this Agreement.
9.13 Expenses.
Each
party will bear their own expenses, including legal fees, incurred in connection
with the negotiation and execution of this Agreement. The Stratos Security
Holders shall not be responsible for any costs incurred in connection with
the
transaction contemplated by this Agreement.
9.14 Survival
of Representations and Warranties.
The
representations, warranties, covenants and agreements of the parties set forth
in this Agreement or in any instrument, certificate, opinion or other writing
providing for in it, shall survive the Closing Date.
9.15 Exhibits.
As of
the execution hereof, the parties have provided each other with the exhibits
to
be delivered pursuant to the terms of this Agreement. Any material changes
to
such exhibits shall be immediately disclosed to the other party.
15
9.16 Termination,
Amendment and Waiver.
(a)
Termination.
This
Agreement may be terminated at any time prior to the Closing Date, whether
before or after approval of matters presented in connection with the share
exchange by the stockholders of NDC or by the stockholders of
Stratos:
(1) By
mutual
written consent of Stratos and NDC;
(2) By
either
Stratos or NDC;
|
(i)
|
If
any court of competent jurisdiction or any governmental, administrative
or
regulatory authority, agency or body shall have issued an order,
decree or
ruling or taken any other action permanently enjoining, restraining
or
otherwise prohibiting the transactions contemplated by this Agreement;
or
|
|
(ii)
|
If
the transaction shall not have been consummated on or before March
31,
2008, unless the failure to consummate the transaction is the result
of a
material breach of this Agreement by the party seeking to terminate
this
Agreement.
|
(3) By
Stratos, if NDC breaches any of its representations or warranties hereof or
fails to perform in any material respect any of its covenants, agreements or
obligations under this Agreement; or
(4) By
NDC,
if Stratos breaches any of its representations or warranties hereof or fails
to
perform in any material respect any of its covenants, agreements or obligations
under this Agreement.
(b)
Effect
of Termination.
In the
event of termination of this Agreement by either NDC or Stratos, as provided
herein, this Agreement shall forthwith become void and have no effect, without
any liability or obligation on the part of Stratos, the Stratos Security Holders
or NDC, and such termination shall not relieve any party hereto for any
intentional breach prior to such termination by a party hereto of any of its
representations or warranties or any of its covenants or agreements set forth
in
this Agreement.
(c)
Extension;
Waiver.
At any
time prior to the Closing Date, the parties may, to the extent legally allowed,
(a) extend the time for the performance of any of the obligation of the other
acts of the other parties, (b) waive any inaccuracies in the representations
and
warranties contained herein or in any document delivered pursuant hereto or
waive compliance with any of the agreements or conditions contained herein.
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.
16
(d)
Procedure
for Termination, Amendment, Extension or Waiver.
A
termination of this Agreement, an amendment of this Agreement or an extension
or
waiver shall, in order to be effective, require in the case of Stratos or NDC,
action by its General Manager or Board of Directors, as applicable, or the
duly
authorized designee of such General Manager or Board of Directors.
9.17 Attorneys’
Fees.
In the
event that any dispute between or among Stratos, NDC and/or the Stratos Security
Holders in connection with the transactions contemplated by this Agreement
should result in litigation or arbitration, the prevailing party in that dispute
shall be entitled to recover from the other party(ies) all reasonable fees,
costs and expenses of enforcing any right of the prevailing party, including
without limitation, reasonable attorneys’ fees and expenses.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
17
IN
WITNESS WHEREOF,
the
parties have executed this Agreement Concerning the Exchange of Securities
on
the date indicated above.
| NEW DESIGN CABINETS, INC. | STRATOS DEL PERU S.A.C. | |||
|
By:
|
By:
|
|||
|
Xxxxxxx
Xxxxxxx
|
Xxxx
Xxxxxxxx
|
|||
|
Chief
Executive Officer
|
Attorney-in-Fact
|
|||
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
Xxxxx
Xxxxx Xxxxxx, an individual
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
Xxxxxxx
Aza, an individual
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
Luis
Francisco de las Xxxxx, an individual
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
Xxxxxx
Xx Xxxx, an individual
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
Xxxxxxx
Xxxxxxxx, an individual
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
|
SGM
CAPITAL, LLC,
|
|
|
a
California limited liability company
|
|
|
By:
|
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
Member
|
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
|
ARC
INVESTMENT PARTNERS, LLC,
|
|
|
a
California limited liability company
|
|
|
By:
|
|
|
Name:
Xxxx Xxxxxxx
|
|
|
Title:
Chief Executive Officer
|
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
Xxxx
Xxxxxxxx, an individual
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
Xxxxxxx
Xxxxxxx, an individual
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
Xxxxxxx
Xxxxx, an individual
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
Xxxxxx
Xxxxxxx Xxxxx, an individual
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
Xxxxxxx
Xxxxxxx, an individual
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
|
TAPIRDO
ENTERPRISES,
LLC,
|
|
|
a
California limited liability company
|
|
|
By:
|
|
|
Name:
Xxxx Xxxxxxx
|
|
|
Title:
Member
|
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
|
LEGEND
ADVISORY CORPORATION,
|
|
|
a
Nevada corporation
|
|
|
By:
|
|
|
Name:
Xxxxxxx X Xxxxx
|
|
|
Title:
President
|
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
|
CORPORATE COMMUNICATIONS NETWORK, INC.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
Xxxxxxx
Xxxxxx, an individual
|
[ADDITIONAL
SIGNATURES ON FOLLOWING PAGE]
|
STRATOS
SECURITY HOLDERS:
|
|
|
HARBOR
RIDGE CAPITAL, LLC,
|
|
|
a
California limited liability company
|
|
|
By:
|
|
|
Name:
Xxxxx Xxxxxxx
|
|
|
Title:
Managing Member
|
|
