EXHIBIT 10
STOCK EXCHANGE AGREEMENT
THIS AGREEMENT AND PLAN OF REORGANIZATION (the
"Agreement") is entered into on October 15, 2002 by and among
Mortgage Professionals Lead Source, Inc., a Utah corporation
("MPLS"), Neuro Bioscience, Inc. a Delaware corporation ("NBI")
and the NBI Owners ("Owners" as defined below). When all of the
foregoing parties are collectively referenced in this Agreement
they shall sometimes be designated as the "Parties".
R E C I T A L S:
A. The NBI Owners own all of the issued and outstanding
shares of capital stock of NBI, with the NBI Owners owning the
number of shares of common stock of NBI set forth opposite their
respective names on Exhibit A as attached hereto.
B. MPLS, NBI and the Owners have determined that it is
in their respective best interests to effect a transaction in
which all issued and outstanding shares of NBI will be acquired
by MPLS in exchange for shares of common stock of MPLS to be
issued as described herein.
D. The parties hereto intend that the share exchange
shall qualify as a tax free reorganization within the meaning of
the IRS Code.
E. Shares to be issued and exchanged under the terms of
this Agreement shall be subject to certain stipulated
restrictions on sale, transfer or other disposition or
limitations as set-out in Article VI of this Agreement.
NOW, THEREFORE, in consideration of the promises and
the mutual agreements contained herein, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. As used in this Agreement,
unless otherwise defined herein or unless the context otherwise
requires, the following terms shall have the following meanings:
"Agreement" means this Agreement and all exhibits
hereto and all amendments, modifications, and supplements hereto.
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"Balance Sheet Date" is December 31, 2001 for the MPLS
audited statements and June 30, 2002 for the MPLS unaudited
statements.
"Board of Directors" shall mean the governing body of
MPLS under Utah law, sometimes herein simply designated as the
"Board" or the "Directors". Until the execution of this
Agreement, the existing Board of the Company shall continue in
office, upon execution those persons designated in Section
2.04(d) shall become the new Board.
"Balance Sheet" is the audited and unaudited balance
sheets of MPLS as of the foregoing Balance Sheet Date; and the
unaudited Balance Sheet of NBI to be presented as soon after
closing as possible.
"Closing" shall mean the date and place where the
parties formally exchange in person or by mail the shares and
documents described in this Agreement and other undertakings or
commitments as specifically set-out herein. The closing shall
occur at the offices of Xxxxxx X.
Xxxxxx, P.C. of 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx
Xxxx, Xxxx 00000, at 10:00 a.m. on October 15, 2002, unless the
parties mutually agree to another date or place of closing in
writing attached to this Agreement.
"Company" shall mean MPLS or its successor.
"GAAP" has the meaning specified in Section 3.12(b)
hereof.
"IRS" means the Internal Revenue Service.
"MPLS/Neuro" when used generally herein shall mean the
MPLS entity after the share exchange, but before the formal
filing of Articles of Amendment changing its name to NBI
Bioscience (NBI ).
"MPLS/NBI" shall be an acronym which stands for the
corporation Mortgage Professionals Lead Source, Inc. After the
closing of this Agreement and acquisition of NBI, but before the
formal name change of the acquiring company to Neuro Bioscience,
Inc.
"Owners" shall mean all owners of Neuro Bioscience
common stock, $0.001 par value of Neuro Bioscience who are
signatories to this Agreement, and whose names and addresses are
set-out in Exhibit A attached hereto.
"Parent Corporation" shall mean the MPLS entities both
before and after its name change to NBI Bioscience
"SEC" means the United States Securities and Exchange
Commission.
"Securities Act" has the meaning specified in Section
4.03 hereof.
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"Taxable Period" means any taxable year or any other
period that is treated as a taxable year with respect to which
any Tax may be imposed under any applicable statute, rule, or
regulation.
"Tax Return" means any report, return, or other
information required to be supplied to a taxing authority in
connection with Taxes.
"Taxes" means all taxes, charges, fees, levies, or
other assessments, including, without limitation, income, gross
receipts, excise, real and personal property, sales, use, stamp,
transfer, license, payroll, franchise, Social Security,
unemployment and withholding taxes imposed or required to be
withheld by the United States or any state, local, or foreign
government or subdivision or agency thereof, and such term shall
include any interest, penalties or additions to tax.
Section 1.02. Accounting Terms. All accounting terms
not specifically defined herein shall be construed in accordance
with GAAP.
ARTICLE II
THE SHARE EXCHANGE AT CLOSING
Section 2.01. The Share Exchange.
(a) Upon the terms and subject to the conditions of this
Agreement, and in accordance with the Corporation Law of the
State of Utah (the "Utah Act"), the parties hereto shall effect
the following stock exchange as provided herein at closing:
(b) In consideration of the mutual terms, covenants and
conditions contained herein, MPLS will at closing assign,
transfer, and convey to each NBI Owner that number of restricted
shares of common stock, no par value, of MPLS set opposite each
Shareholder's name on Exhibit A (the "MPLS Shares"). At closing,
the MPLS Shares will be delivered by MPLS to the Chairman of NBI
for the benefit of each NBI Owner. The Chairman of NBI
thereafter will distribute the MPLS Shares to each NBI Owner.
The shares will be only issued and fully negotiable subject only
to the standard restrictive legend.
(c) In consideration of the mutual terms, covenants and
conditions contained herein, NBI will, at closing, assign,
transfer and convey to MPLS all of the issued and outstanding
shares of NBI. NBI further covenants and warrants that those
shares are specifically described and set-out in the attached and
incorporated Exhibit A to this Agreement. NBI represents and
warrants to MPLS that such shares will be duly issued, subscribed
and fully negotiable, except for standard and customary
restrictive stock legend as unregistered shares. NBI represents
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that the total aggregate number of such shares is 5,080,000 and
that there are no other stock purchase rights, warrants or other
stock entitlements which exist or would increase the issued and
outstanding number of shares.
Section 2.02. Closing Procedures.. Subject to the
terms and conditions of this Agreement and concurrent with the
closing:
(a) NBI and the NBI Owners shall deliver to MPLS
the documents and instruments to be delivered under Article IX
hereof.
(b) Neuro shall deliver to MPLS the NBI shares
listed on schedule A.
(c) MPLS shall deliver to the NBI Owners
9,000,000 MPLS Shares.
(d) MPLS shall deliver to NBI certificates, and
other documents and instruments to be delivered under Article
VIII hereof.
(e) The existing Board of Directors of MPLS will
appoint three members to the Board of MPLS as directed by NBI,
and immediately thereafter resign in their respective Board
capacity.
(f) The existing officers of MPLS shall resign in
their respective capacities.
(g) MPLS will deliver to NBI all contracts,
commitments, books, records and other information including Tax
Returns filed and those in preparation and any tax related
agreements) records of MPLS in original form, if any.
(h) MPLS will prepare a proxy and hold a meeting
to have the shareholders ratify and approve the Agreement and the
transactions contemplated herein.
(i) NBI shall produce evidence of an existing
line of credit in an amount not less than one million dollars
from SCO Capital LLC, and/or Jano Holdings Limited.
(j) NBI will produce at closing a placement
agreement from Axcel Capital Partners and/or SCO Financial Group
for a minimum offering of five million dollars at not less than
$1.00/share.
Section 2.04. Results of Share Exchange. When the
share exchange has been fully consummated and implemented, the
following results or status to the parties shall be extant:
(a) NBI will be a wholly owned operating
subsidiary of MPLS.
(b) The Certificate of Incorporation of MPLS
shall be amended to provide that Article I of the Certificate of
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Incorporation shall read in its entirety as follows: The name of
the corporation is "Neuro Bioscience, Inc." The Certificate of
Incorporation of the current NBI will be amended pursuant to
shareholder ratification to reflect a name change to "Neuro
Bioscience Operating Company", or some reasonable derivation to
distinguish the parent and subsidiary. MPLS/NBI will file
appropriate Articles of Share Exchange under Utah law.
(c) The Bylaws of MPLS, as in effect immediately
prior to the closing, shall be the Bylaws of the Surviving
Corporation; but subject to amendment.
(d) The persons nominated below shall be
appointed at closing and proposed for election to the
shareholders of MPLS as a new Board of Directors. The Directors
named below shall immediately upon appointment and following
closing hold an organizational meeting of the Board to, inter
alia, appoint new officers for MPLS:
1. Xxx Xxxx 3. Xxxx Xxxxx
2. Xxxx Xxxxx
(e) The current officers of MPLS at closing shall
resign and new officers will be appointed by the newly elected
board of directors set forth in 2.04(d) above.
(f) The Company will relocate all operations to
the business facilities currently operated by NBI and MPLS/NBI
will assume those business operations as its current business and
purpose.
(g) The outstanding shares after closing of this
share exchange shall be as follows:
(i) Public Float 109,300 shares
(ii) Original MPLS shareholders 510,000 shares
(iii) S-8 Shares 450,000 shares
(iv) NBI Founders and Affiliates 9,000,000 shares
Total issued and outstanding shares 10,069,300 shares
There are no other shares, options or rights
outstanding, or convertible into, exchangeable for, or
exercisable to acquire, any shares of capital stock of the
Company, or any agreements or undertakings to issue the same,
whether at the time of closing or otherwise.
Section 2.05. Taking Necessary Action; Further Action.
NBI and MPLS, respectively, each shall use their reasonable
efforts to take all such action as may be necessary or
appropriate to effectuate the share exchange under the Utah Act
at the time specified in Section 2.02 hereof. If, at any time
after the execution hereof, any further action is necessary or
desirable to carry out the purposes of this Agreement and to vest
MPLS/NBI with full right, title and possession to all sharehold
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interest in NBI , the officers of the Company are fully
authorized in the name of NBI and MPLS, or otherwise, to take,
and shall take, all such lawful and necessary actions.
Section 2.06. Expenses. MPLS, NBI and the Owners
shall each pay their respective expenses incurred in connection
with the negotiation, execution, closing, and performance of this
Agreement and all other agreements contemplated hereby, in each
case regardless of whether the closing occurs. Without
limitation of the foregoing, any stock transfer taxes payable in
connection with the stock exchange shall be the responsibility
of, and shall be paid by, the new beneficial owner of such
shares.
Section 2.07. Restricted Securities. All parties to
this Agreement acknowledge that the shares exchanged or issued
will be restricted securities and are not currently subject to
registration rights.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MPLS
MPLS hereby represents and warrants to NBI and the NBI
Owners as follows:
Section 3.01. Corporate Organization. MPLS is a
corporation duly organized, validly existing, and in good
standing under the laws of Utah and has the corporate power and
authority to acquire all material governmental licenses,
authorizations, permits, consents and approvals required to own,
license or lease and operate properties or to conduct business.
MPLS presently has no active business other than to merge with a
target company.
Section 3.02. Due Qualification. MPLS is duly
qualified to do business and is in good standing under the laws
of each jurisdiction in which the nature of its business or of
the properties owned or leased by it makes such qualification
necessary, except where the failure to be so qualified would not
have, either alone or together with all such failures, a material
adverse effect on the assets, business, results of operations or
financial condition of MPLS. It being further understood by the
Parties that MPLS does not have any current operating business,
nor is it subject to registration in any jurisdiction other than
Utah.
Section 3.03. Corporate Documentation. (a) Copies of
the articles of incorporation and by-laws (or applicable
organizational documents) and all amendments thereto, of MPLS
heretofore delivered to NBI , as existing, are complete and
correct; (b) the existing minute books of MPLS are complete and
reflect all proceedings (including actions taken by written
consent) of the stockholders, partners and directors and all
committees thereof of MPLS in all material respects, subject to
the limitations set-out above; (c) the transfer records with
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respect to capital stock and other equity or ownership interests
are complete and accurately reflect all transactions in the
shares of capital stock and other equity or ownership interests
of MPLS. A complete and correct copy of the resolutions to be
duly adopted by the stockholders of MPLS at a meeting, will be
provided to and approved by NBI , which resolutions shall approve
and adopt this Agreement, and approve the stock exchange , in
accordance with the provisions of the Utah Act. Following
adoption by the stockholders of MPLS, such resolutions will not
be amended, modified, rescinded or superseded and will remain in
full force and effect after their adoption through the
consummation of the transactions contemplated hereby; and (d) NBI
and the NBI Owners further understand and agree to be bound by
all provisions and results of the "dissenting shareholder rights"
which must be provided the MPLS shareholders under Utah law to
ratify this stock exchange .
Section 3.04. Capitalization of MPLS.
(a) The entire authorized capital stock of MPLS
consists of Fifty Million shares of common stock, no par value,
of which 619,300 shares are presently validly issued and
outstanding. In addition, (i) other than as provided in this
Agreement, there are no warrants, rights, options, conversion
privileges, stock purchase plans or other agreements or
undertakings which obligates MPLS now or upon the occurrence of
some future event to issue additional shares of capital stock;
(ii) there are no restrictions on the transfer of shares of
capital stock of MPLS other than those imposed by relevant state
and federal securities laws, and (iii) no holder of any security
of MPLS is entitled to any preemptive or similar statutory or
contractual rights, either arising pursuant to an agreement or
instrument to which MPLS is a party or which are otherwise
binding on Purchaser.
(b) The MPLS Shares are duly authorized and
validly issued, fully paid and non-assessable, and have not been
issued in violation of any preemptive rights, and will be free
and clear of all liens, claims and encumbrances, charges,
security interests, stockholder's agreements and voting trusts.
Section 3.05. Authority; Binding Effect. Subject to
shareholder approval and/or ratification, MPLS has the right,
power, authority, and capacity to execute and deliver this
Agreement and all other agreements contemplated hereby, to
perform the obligations hereunder and thereunder on its part to
be performed and to consummate the transactions herewith. The
execution and delivery by MPLS of this Agreement and all other
agreements and documents contemplated hereby and the performance
by MPLS of all obligations on its part to be performed hereunder
and thereunder have been duly approved by all necessary corporate
and other action by MPLS. This Agreement constitutes, and when
duly executed and delivered, all other agreements contemplated
hereby will constitute, the legal, valid, and binding obligation
of MPLS, enforceable against MPLS in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws relating to or
affecting creditors' rights generally and to general equity
principles whether such enforceability is considered in a
proceeding at law or in equity.
Section 3.06. No Creation of Violation, Default,
Breach or Encumbrance. The execution, delivery and performance of
this Agreement by MPLS and the consummation by MPLS of the
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transactions contemplated hereby through an anticipated
shareholder ratification will not: (a) violate (1) any statute,
rule or regulation to which MPLS is subject, or (2) any order,
writ, injunction, decree, judgment or ruling of any court,
administrative agency or governmental body to which is subject,
(b) conflict with or violate any provision of the articles of
incorporation or by-laws of MPLS, or (c) require the consent of
any party or constitute a default under, violate, conflict with,
breach or give rise to any right of termination, cancellation or
acceleration of, or to a loss of benefit to which MPLS is
entitled, under (1) any mortgage, indenture, note or other
instrument or obligation for the payment of money or any
contract, agreement, lease or license to which MPLS is a party,
or (2) any governmental licenses, authorizations, permits,
consents or approvals required for MPLS to own, license or lease
and operate its properties or to conduct its business as
presently conducted by it.
Section 3.07. No Present Default. All contracts,
agreements, leases and licenses to which MPLS is a party are
valid and in full force and effect and constitute legal, valid
and binding obligations of MPLS. MPLS has disclosed, and NBI
accepts, that MPLS has no license or contract rights or
obligations, or any asset or interest of value, except for the
modest cash balances carried on the books of MPLS.
Section 3.08. Compliance With Law. To the best
knowledge and belief of MPLS, its officers, directors, and
agents, MPLS is not in violation of, or since inception has
violated, any applicable domestic or foreign law, rule or
regulation (excluding violations of traffic laws), or any order,
writ, injunction or decree of any domestic or foreign court,
administrative agency, governmental body or arbitration tribunal,
to which it or any of its properties or assets is subject.
Section 3.09. Governmental Approvals and Filings. No
consent, approval or authorization of, or notice to, declaration,
filing or registration with, any domestic or foreign governmental
or regulatory authority on the part of MPLS is required in
connection with the execution, delivery and performance of this
Agreement.
Section 3.10. Real Property. MPLS owns no real
property.
Section 3.11. Personal Property. MPLS is in
possession of and has good and valid title to all personal
property and assets reflected on the Balance Sheet or acquired
after the Balance Sheet Date, subject to no adverse claims or
restrictions on transfer. There are no outstanding options or
rights granted by MPLS to any third person to acquire any such
personal property or any interest in them and, there are no
outstanding options or rights granted by any third party to
acquire any such personal property or any interest in them. MPLS
has represented, and NBI accepts, that MPLS has no personal
property or other tangible or intangible assets or interests,
except as to the software to be assigned in accordance with
Article X of this Agreement.
Section 3.12. Financial Statements.
(a) MPLS will deliver to NBI , prior to closing
and as a condition to closing, the audited balance sheets of MPLS
as of December 31, 2001 and unaudited balance sheet as of June
30, 2002; and the related audited statements of operations,
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stockholders' equity and cash flows for the periods then ended,
and the notes thereto, together with the report of Xxxxxx,
Xxxxxxx & Xxxxxxx, independent certified public accountants,
thereon.
(b) The financial statements referred to in
Section 3.12(a) above fairly and accurately present in all
material respects the consolidated financial position, results of
operations, stockholders' equity and cash flows of MPLS as of the
relevant date thereof and for the periods covered thereby have
been prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied.
(c) Except as set forth in the Balance Sheet, or
in the exhibits hereto, MPLS has no liabilities or obligations,
direct or contingent, accrued or otherwise, of a nature
customarily reflected in financial statements in accordance with
GAAP. MPLS further agrees to account for and discharge all
remaining obligations accrued before or after June 30, 2002.
Section 3.13. Patents, Trademarks. Service Marks.
Trade Names. Copyrights. MPLS does not own any registered
patents, trademarks, service marks, trade names or copyrights.
Section 3.14. Contracts, Agreements and Obligations.
MPLS is not a party to or is in any way obligated under or
subject to:
(a) Any contract or agreement, whether written or
oral, with any officer or employee or shareholder of MPLS;
(b) Any license, franchise or similar agreement,
whether written or oral;
(c) Any collective bargaining or other labor or
union contract or agreement, whether written or oral;
(d) Any note, bond, indenture or agreement,
whether written or oral, to borrow money or any agreement of
guarantee or indemnification, whether written or oral;
(e) Any agreement or outstanding purchase order,
whether written or oral, relating to capital expenditures
involving total payments of more than $1,000.00, individually or
in the aggregate.
(f) Any other agreement, lease, arrangement or
understanding, whether written or oral, which MPLS is a party or
by which any of its assets are legally bound, except final
accounting and legal service fees to be paid and discharged by
MPLS from its capital reserves prior to execution hereof.
Section 3.l5. Insurance. MPLS does not maintain any
insurance policies.
Section 3.16. Absence of Certain Changes. Since the
Balance Sheet Date, there has not been: (a) any reduction, loss,
change, physical damage, or destruction in excess of $1,000 to
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any asset or property of MPLS, except for the assignment of the
Prosource software as provided herein; (b) any declaration,
setting aside or payment of any dividend, or any distribution, in
respect of shares of capital stock or other equity or ownership
interests of MPLS, or any redemption, purchase or other
acquisition of any of such shares of capital stock or other
securities of, or other equity or ownership interests in MPLS;
(c) any increase in the compensation payable or to become payable
by MPLS to any of its respective directors, officers or
employees; (d) any change in the authorized and unissued capital
stock or other equity or ownership interest of MPLS or any grant
of options, warrants or other rights or convertible or
exchangeable securities calling for the issuance thereof; (e) any
payment by MPLS direct or indirect, of any material liability
before the same becomes due in accordance with its terms or
otherwise than in the ordinary course of its business; (f) any
sale or transfer of, or agreement to sell or transfer, any assets
of MPLS; (g) any change in any accounting principle or practice
of MPLS or any change in the MPLS's business practices; (h) any
event, occurrence, development, state of facts or change in the
business which has had, either alone or together with all such
events, occurrences, developments, states of facts or changes, a
material adverse effect on the assets, business, results of
operations, affairs, prospects or financial condition of MPLS; or
(i) any liability or obligation incurred or created on the part
of MPLS or any creation or assumption by of MPLS any lien, claim
or encumbrance on any asset of MPLS.
Section 3.17. Certain Tax Matters. As of the date
hereof, or prior to closing and as a condition to closing, the
most current Tax Return required to be filed with respect to MPLS
for the Taxable Period ending on or before the date hereof has
been or will be timely filed, and the independent auditors for
MPLS will have determined that only the most current returns need
be filed as they become due. All currently filed Tax Returns or
Return: (a) were prepared in the manner required by applicable
law; (b) are true, correct, and complete in all respects; and (c)
reflect the liability for Taxes of MPLS. All Taxes shown to be
payable on such Tax Returns, and all assessments of Taxes made
against MPLS with respect to such Tax Returns, have been paid
when due. No adjustment in such Tax Returns has been proposed
formally or informally by any taxing authority and no basis
exists for any such adjustment. Except for liens for real and
personal property Taxes that are not yet due and payable, there
are no liens for any Tax upon any asset of the Company.
Section 3.18. No Litigation, Proceeding or Inquiry.
To the best knowledge and belief of MPLS, its officers, directors
or agents, there is no suit, action, claim or other legal,
administrative or arbitration proceeding (including a "stop
order") pending or, threatened before any court or governmental
commission, bureau or other regulatory authority (including the
SEC), and there is no investigation or inquiry by any
administrative agency or governmental body pending or threatened,
nor are there any existing judgments, orders or decrees: (a)
against MPLS; or (b) which challenges the validity or propriety
of, or seeks to prevent, alter or delay, the transactions
contemplated by this Agreement.
Section 3.19. Employee Benefit Plans; Labor Matters.
MPLS has no employees and no employee benefit plans.
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Section 3.20. Brokers and Finders. Except for the
consideration payable to Olympic as provided herein, no broker or
finder has acted for MPLS in connection with this Agreement and
the transactions contemplated hereby; and no broker or finder is
entitled to receive any shares of the Surviving Corporation in
such capacity, is entitled to any brokerage or finder's fee or
other commission in respect thereof based in any way on any
agreement, arrangement or understanding made by MPLS.
Section 3.21. Information Supplied by and MPLS.
Neither this Agreement nor any document referenced herein, nor
any certificate, statement or memorandum furnished pursuant to
this Agreement or in connection herewith by or on behalf of MPLS
contains any untrue statement of material fact or omits to state
a material fact necessary in order to make the statements
contained herein or therein not misleading.
Section 3.22. SEC Filings; Financial Statements. MPLS
has delivered in the form filed with the SEC, its Annual Report
on Form 10-K for the fiscal year ended December 31, 2001 and the
10-Q reports and unaudited financials for the quarters ending
March 31, 2002 and June 30, 2002 (the "MPLS SEC Reports"). The
MPLS SEC Reports do not at the time they were filed (or if
amended or superseded by a filing prior to the date hereof, then
on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE NBI OWNERS
Each of the NBI Owners, individually but not jointly,
represents and warrants to MPLS and the MPLS Owners as follows:
Section 4.01. Authority; Binding Effect. Each NBI
Owner has the right, power, authority, and capacity to execute
and deliver this Agreement and all other agreements contemplated
hereby, to perform the obligations hereunder and thereunder on
its part to be performed and to consummate the transactions
contemplated hereby and thereby. The execution and delivery by
each NBI Owner of this Agreement and all other agreements and
documents contemplated hereby and the performance by each NBI
Owner of all obligations on its part to be performed hereunder
and thereunder have been duly approved by all necessary
corporate, if any, and other action by each NBI Owner. This
Agreement constitutes, and when duly executed and delivered, all
other agreements contemplated hereby to be executed and delivered
by each NBI Owner will constitute, the legal, valid, and binding
obligation of such NBI Owner, enforceable against such NBI Owner
in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, or
other similar laws relating to or affecting creditors' rights
generally and to general equity principles (whether such
enforceability is considered in a proceeding at law or in
equity).
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Section 4.02. No Creation of Violation. The
execution, delivery and performance of this Agreement by each NBI
Owner does not, and the consummation by each NBI Owner of the
transactions contemplated hereby will not: (a) violate (1) any
statute, rule or regulation to which any NBI Owner is subject, or
(2) any order, writ, injunction, decree, judgment or ruling of
any court, administrative agency or governmental body to which
any NBI Owner is subject, or (b) require the consent of any
party.
Section 4.03. Offering Exemptions. The NBI Owners
each understand that the shares of MPLS Stock to be acquired
hereunder as a result of the stock exchange are being issued by
MPLS without registration under the Securities Act of 1933, as
amended (the "Securities Act") and without qualification and/or
registration under other applicable securities laws, and that the
shares of MPLS Stock are being issued pursuant to specific
claimed exemptions from registration and/or qualification
contained in the Securities Act and in applicable state
securities laws. The respective NBI Owners each understand that
the foregoing exemptions depend upon, among other things, the
bona fide nature of each such NBI Owner's intent as expressed
herein and the accuracy of each such NBI Owner's representations.
The respective NBI Owners each understand that the foregoing
exemptions exempt only the issuance of the MPLS Stock by MPLS to
such NBI Owners and not any sale or disposition of MPLS Stock, or
any interest in MPLS Stock, by any NBI Owner. The respective NBI
Owners each understand that the shares of MPLS Stock must be held
indefinitely unless subsequently registered and/or qualified
under the Securities Act and applicable state securities laws or
unless exemptions from such registration and/or qualification are
available for a proposed disposition of MPLS Stock by such NBI
Owner. Until that time, the respective NBI Owners each
understand that each certificate evidencing shares of MPLS Stock
to be acquired as a result of the stock exchange shall bear a
legend substantially to the effect that the shares represented by
the certificate have not been registered under the Securities Act
or any state securities laws and may not be offered or sold
except in compliance therewith.
Section 4.04. Acquisition for Investment. Each NBI
Owner is acquiring the respective shares of MPLS Shares for
investment for such respective NBI Owner's own account and not
with a view to or with any present intention to offer, sell, or
distribute in connection with any distribution or resale thereof.
Section 4.05. Information. Experience, and Ability to
Bear Risk. Each respective NBI Owner acknowledges receipt of all
the information requested from MPLS and considered by such
respective NBI Owner to be necessary or appropriate for deciding
whether to acquire the shares of MPLS Shares to be acquired
hereunder, including, without limitation, the MPLS SEC Reports.
Each respective NBI Owner is an "accredited investor" within the
meaning of Rule 501(a) under the Securities Act or, alone or
together with a purchaser representative, has such knowledge and
experience in financial and business matters to enable such NBI
Owner to be capable of evaluating the merits and risks of
exchanging his, her or its NBI shares for the respective MPLS
Shares and such NBI Owner is able to bear the economic risk of,
such NBI Owner's acquisition of such shares of MPLS Shares
pursuant to this Agreement. The respective NBI Owners have been
afforded the opportunity to ask questions and receive answers
regarding the terms and conditions of the acquisition of such
MPLS Shares.
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Section 4.06. Brokers and Finders. No broker or
finder has acted for the respective NBI Owners or NBI in
connection with this Agreement and the transactions contemplated
hereby; and no broker or finder is entitled to any brokerage or
finder's fee or other commission in respect thereof based in any
way on any agreement, arrangement or understanding made by the
respective NBI Owners or NBI .
Section 4.07. Information Supplied by the NBI Owners.
Neither this Agreement nor any document referenced herein, nor
any certificate, statement or memorandum furnished pursuant to
this Agreement or in connection herewith by or on behalf of the
respective NBI Owners contains any untrue statement of material
fact or omits to state a material fact necessary in order to make
the statements contained herein or therein not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF NBI
NBI represents and warrants to MPLS as follows:
Section 5.01. Corporate Organization; Corporate
Documentation. NBI is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, and has the corporate power and authority and all
material governmental licenses, authorizations, permits, consents
and approvals required to own, license or lease and operate its
properties and to conduct its business as presently conducted by
it.
Section 5.02. Corporate Authority: Binding Effect.
NBI has the corporate power and authority to execute and deliver
this Agreement and all other agreements contemplated hereby, to
perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. The
execution and delivery by NBI of this Agreement and all other
agreements and documents contemplated hereby and the performance
by NBI of all obligations on its part to be performed hereunder
and thereunder have been duly approved by all necessary corporate
action by NBI . This Agreement constitutes, and when duly
executed and delivered by NBI all other agreements contemplated
hereby will constitute, the legal, valid and binding obligation
of NBI , enforceable against NBI , in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally and to general equity
principles (whether such enforceability is considered in a
proceeding at law or in equity).
Section 5.03. No Creation of Violation, Default,
Breach or Encumbrance. The execution and delivery by NBI of this
Agreement do not, and the consummation by NBI of the
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transactions contemplated hereby will not: (a) conflict with or
violate any provision of the certificate of incorporation or by-
laws of NBI ; (b) result in the breach of or constitute a default
under any material contract, agreement, lease, license, mortgage,
indenture, note or other instrument or obligation to which NBI
is a party, which could adversely affect the ability of NBI to
consummate the transactions contemplated by this Agreement; or
(c) violate (1) any statute, rule or regulation to which NBI is
subject, or (2) any order, writ, injunction, decree, judgment or
ruling of any court, administrative agency or governmental body
to which NBI is subject.
Section 5.04. No Litigation, Proceeding or Inquiry.
There is no suit, action, claim or other legal, administrative or
arbitration proceeding pending or, to NBI 's knowledge,
threatened before any court or governmental commission, bureau or
other regulatory authority, and, to NBI 's knowledge, there is no
investigation or inquiry by any administrative agency or
governmental body pending or threatened, nor are there any
existing judgments, orders or decrees which challenges the
validity or propriety of, or seeks to prevent, alter or delay,
the transactions contemplated by this Agreement.
Section 5.05. Governmental Approvals and Filings. No
consent, approval or authorization of, or notice to, declaration,
filing or registration with, any governmental or regulatory
authority on the part of NBI is required in connection with the
execution, delivery and performance of this Agreement.
Xxxxxxx 0.00. Xxxxxxxxxxxxxx xx XXX .
(x) The entire authorized capital stock of NBI
consists of 5,080,000 shares of common stock, $0.001 par value,
of which 5,080,000 shares are presently validly issued and
outstanding. In addition, (i) there are no warrants, rights,
options, conversion privileges, stock purchase plans or other
agreements or undertakings which obligates NBI now or upon the
occurrence of some future event to issue additional shares of
capital stock, (ii) there are no restrictions on the transfer of
shares of capital stock of NBI other than those imposed by
relevant state and federal securities laws, and (iii) no holder
of any security of NBI is entitled to any preemptive or similar
statutory or contractual rights, either arising pursuant to an
agreement or instrument to which NBI is a party or which are
otherwise binding on Purchaser.
(b) The NBI shares are duly authorized and
validly issued, fully paid and non-assessable, and have not been
issued in violation of any preemptive rights, and will be free
and clear of all liens, claims and encumbrances, charges,
security interests, stockholder's agreements and voting trusts.
Section 5.07 Pharmaceutical Products and Technology.
NBI represents and warrants to MPLS, as a term and condition of
this Agreement, that it has not less than five developmental
stage pharmaceutical products or drugs all having some
relationship to treatment of symptoms or conditions of the human
central nervous system. None of these products, at present, are
commercially developed and no warranty or representation is made
or implied that they can be successfully completed or marketed,
or that they will receive FDA approval.
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Section 5.08 Audit Undertaking of NBI. NBI undertakes
to MPLS, as a necessary term and condition of this Agreement,
that they will complete within the next ninety days audits of
their existing operational history in accordance with standard
GAAP auditing standards and procedures and also in conformity
with auditing standards required for becoming a reporting company
under the Securities and Exchange Act of 1934 and that they will
timely complete and file all subsequent required consolidated
financial statements as a Reporting Company under such act.
ARTICLE VI
STIPULATED STOCK LIMITATIONS AND TRADING RIGHTS
Section 6.01. MPLS S-8 Shares and Leak-Out Provisions.
It is understood and agreed that MPLS shall, prior to closing,
file an S-8 Registration Statement for 450,000 shares of its
common stock to various consultants or agents that provided
actual services to the company prior to or related to this
reorganization. Such shares shall be issued to those individuals
as registered shares, but subject to certain leak-out limitations
and provisions as provided by this section. It is further agreed
and understood that as to the shares subject to this section (S-8
shares) that as to these leak-out shares none of the persons
receiving such shares shall sell, assign or transfer any
interest, by option or otherwise, in such shares until 60 days
after the closing of the Company's initial financing; and,
thereafter, shall not sell or assign in any public transaction
where the aggregate volume of such shares traded in any quarter
commencing January 1, 2003 would exceed 2% of the then issued and
outstanding shares of the company. The shares subject to this
leak-out provision shall evidence such undertaking by the owners
of such shares in a separate subscription agreement for such
shares and appropriate notice as to the restrictions on trading
of such shares shall be given to the transfer agent, but no other
limitation or restriction shall appear on the certificate. Each
shareholder subject to this paragraph will agree in this
subscription to be fully and completely liable for any breach of
these leak-out provisions to MPLS/NBI. The leak out covenant
will expire on January 1st, 2005 and all remaining S-8 shares
will be released.
Section 6.02. Conditional Adjustment of MPLS Owners
Shares After Closing. In the event that MPLS/NBI has not
completed subsequent initial financing in an amount not less than
5 million dollars within sixty business days from the close of
this Agreement, then MPLS/NBI will cause to be issued to Belsen
Getty, LLC, Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxxxxxx, Xxxxxxx Xxxxxx,
as the initial MPLS founders a warrant to each of them, which
warrant shall in the aggregate allow them to acquire 5% of the
current and outstanding shares of MPLS/NBI as of the date such
warrants were issued under the terms of this section and with a
strike price of 75% of the market price of the shares for the
trailing 30 day average bid price. The warrants aggregating 5%
in total shall be allocated among the foregoing individuals in
the following percentages: 70% to Belsen Getty, LLC, 30%
15
allocated equally among the other 3 founders. In the event of
the issuance of the warrants under this section, the foregoing
warrant recipients shall also be entitled to designate and
appoint to the Board of Directors of MPLS/NBI two additional
members and the Board will be expanded by the existing directors
of MPLS/NBI as necessary to accommodate the appointment of such
directors.
"Market Price" as stated in this section shall mean the closing
price for the Company's common stock on such date as quoted on
any regulated securities market, electronic bulletin board, "pink
sheet" market, or other third party market, including the
National Association Securities Dealers, Inc.'s OTCBB market, if
any, however, if the common stock of the Company was not traded
on such date, then on the last trade date.
ARTICLE VII
COVENANTS OF THE PARTIES
Section 7.01. Further Assurances. Consistent with the
terms and conditions hereof, each party hereto will execute and
deliver such other instruments and take such other action as any
other party hereto may reasonably require in order to carry out
this Agreement and the transactions contemplated hereby.
Section 7.02. Acknowledgments by MPLS and MPLS Owners.
MPLS and the MPLS Owners hereby acknowledge, confirm, and agree
that (i) NBI is a start-up entity and significant risks exists
with respect to the proposed business of NBI , and (ii) none of
the following have ever been represented, guaranteed, or
warranted to any of MPLS or the MPLS Owners by NBI , the NBI
Owners, or any of their affiliates, agents, or employees or by
any other person, expressly or by implication: (a) the
approximate or exact length of time that he/she will be required
to remain an owner of the MPLS shares, (b) value of the MPLS
shares to be realized at any time, or (c) the amount of profit to
be realized at any time from the MPLS shares.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF NBI
The obligations of NBI under this Agreement to
consummate the stock exchange and take the other actions
contemplated herein shall be subject to the satisfaction, on or
prior to the date hereof, of each of the following conditions,
each of which may be waived by NBI as provided herein except as
otherwise provided by law:
16
Section 8.01. MPLS's Certifications. The
representations and warranties of MPLS contained in this
Agreement shall have been true and correct as of the date hereof
and each of the agreements or obligations of MPLS to be performed
on or before the date hereof pursuant to the terms hereof have
been performed and complied with in all material respects.
Section 8.02. Authorization of Transactions. All
corporate action necessary to authorize the execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby by MPLS shall have been duly and
validly taken in a manner reasonably satisfactory to NBI and its
counsel.
Section 8.03. No Injunctions, etc. MPLS shall not be
subject to any rule, regulation, order, decree or injunction of a
court or agency of competent jurisdiction which enjoins or
prohibits the consummation of the stock exchange , or the
issuance of MPLS Stock.
Section 8.04. No Litigation. No litigation or
proceeding shall have been instituted or, to the parties'
knowledge, threatened after the date of this Agreement by any
governmental agency or other person or entity seeking to restrain
or prohibit the performance of, or to obtain damages or other
relief in conjunction with, this Agreement or any of the
transactions contemplated hereby that: (a) has a reasonable
possibility of success on the merits; and (b) if decided in favor
of the agency, person or entity who instituted the same, would
have a material adverse effect on MPLS.
Section 8.05. No Material Changes. MPLS will warrant
and represent as of the date hereof that there have been no
material changes in MPLS since the Letter of Intent; to include,
though not limited to, entering into any agreement for sale or
disposition of assets, merger, funding other than that described
in this Agreement, indebtedness, change or commitment to change
management, material adverse accounting events or change of
reporting litigation, or like acts of reorganization or adverse
events.
ARTICLE IX
CONDITIONS TO THE OBLIGATIONS OF MPLS
The obligations of MPLS under this Agreement to
consummate the stock exchange and take the other actions
contemplated herein shall be subject to the satisfaction, on or
prior to the date hereof, of each of the following conditions,
each of which may be waived by MPLS as provided herein except as
otherwise provided by law:
Section 9.01. Buyer's Certification. The
representations and warranties of NBI contained in this Agreement
shall have been true and correct as of the date hereof and each
of the agreements or obligations of NBI to be performed on or
before the date hereof pursuant to the terms hereof have been
performed and complied with in all material respects.
17
Section 9.02. Authorization of Transactions. All
corporate action necessary to authorize the execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby by NBI shall have been duly and
validly taken in a manner reasonably satisfactory to MPLS and its
counsel.
Section 9.03. No Injunctions. etc. NBI shall not be
subject to any rule, regulation, order, decree or injunction of a
court or agency of competent jurisdiction which enjoins or
prohibits the consummation of the Reverse Acquisition.
Section 9.04. No Litigation. No litigation or
proceeding shall have been instituted or, to the parties'
knowledge, threatened after the date of this Agreement by any
governmental agency or other person or entity seeking to restrain
or prohibit the performance of, or to obtain damages or other
relief in conjunction with, this Agreement or any of the
transactions contemplated hereby that: (a) has a reasonable
possibility of success on the merits; and (b) if decided in favor
of the agency, person or entity who instituted the same, would
have a material adverse effect on MPLS or NBI .
Section 9.05. No Material Changes. NBI will warrant
and represent as of the date hereof that there have been no
material changes in NBI since the Letter of Intent; to include,
though not limited to, entering into any agreement for sale or
disposition of assets, merger, funding other than that described
in this Agreement, indebtedness, change or commitment to change
management, material adverse accounting events or change of
reporting litigation, or like acts of reorganization or adverse
events.
ARTICLE X
MISCELLANEOUS
Section 10.01. Headings. The descriptive headings of
the Articles and Sections of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
Section 10.02. Notices. Any notices or other
communications required or permitted hereunder shall be given in
writing and shall be delivered personally, sent by certified or
registered mail, return receipt requested and postage prepaid, or
sent by nationally recognized overnight delivery service to the
address set forth below:
If to NBI : Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxxx LLC
29th Xxxxx
00
0000 Xxxxxx of the Americas
Xxx Xxxx, XX 00000
If to the NBI At their respective address
set forth on
Owners Exhibit A.
If to MPLS: Xx. Xxxxxxx Xxxxxxx
000 Xxxx Xxxxx Xxx
Xxxxx, XX 00000
Or such other address as shall be furnished in writing by such
party, and any such notice or communications shall be effective
and be deemed to have been given only upon its delivery in
accordance with this Section. Notice shall be deemed given,
received, and effective on: (i) if given by courier service, the
date of actual receipt by the receiving party, or if delivery is
refused on the date delivery was first attempted; or (ii) if
given by certified mail, the earlier of; the date received, or
the third day after being posted with the United States Postal
Service. Any person entitled to notice or a copy of notice may
change any address to which notice or a copy of notice is to be
given to it by giving notice of such change of address as
provided in this Section. The inability to deliver notice
because of changed address for which no notice was given shall be
deemed to be receipt of the notice as of the date such attempt
was first made.
Section 10.03. Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the
benefit of the parties hereto and their respective successors,
heirs, legal representatives and permitted assigns, but neither
this Agreement nor any of the rights, interests, or obligations
hereunder shall be assigned by any of the parties hereto without
the prior written consent of the other parties, except as
otherwise provided herein.
Section 10.04. Complete Agreement. This Agreement and
specifically referenced documents contain the entire
understanding of the parties with respect to the stock exchange
and the related transactions and supersede all prior arrangements
or understandings with respect thereto, and there are no
restrictions, agreements, promises, representations, warranties,
covenants or undertakings other than those expressly set forth in
this Agreement.
Section 10.05. Modifications' Amendments and Waivers.
No supplement, modification or waiver or termination of this
Agreement shall be binding unless executed in writing by the
party to be bound thereby.
Section 10.06. Counterparts and Facsimile Signatures.
This Agreement may be executed in two or more counterparts all of
which shall be considered one and the same agreement and each of
which shall be deemed an original. Facsimile signatures shall be
deemed rebuttably valid as to the execution of this Agreement.
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Section 10.07. No Third Party Beneficiary. The terms
and provisions of this Agreement are intended solely for the
benefit of the parties hereto and their respective successors or
permitted assigns, and it is not the intention of the parties to
confer third-party beneficiary rights upon any other person,
except the specific third party beneficiary rights and
entitlements of Olympic.
Section 10.08. Invalid Provisions. If any provision
of this Agreement is held to be illegal, invalid or unenforceable
under any present or future law, and if the rights or obligations
of any party hereto under this Agreement will not be materially
and adversely affected thereby: (a) such provision will be fully
severable; (b) this Agreement will be construed and enforced as
if such illegal, invalid or unenforceable provision had never
comprised a part hereof; and (c) the remaining provisions of this
Agreement will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by
its severance therefrom.
Section 10.09. Governing Law. This Agreement shall be
governed by the laws of the State of Utah (regardless of the laws
that might be applicable under principles of conflicts of law) as
to all matters, including but not limited to matters of validity,
construction, effect and performance.
Section 10.10. Attorney Fees and Costs. Subject
however to the indemnification provisions herein, should any
action at law or equity be required to enforce any term or
provision of this Agreement, the prevailing party shall be
entitled to all court costs and reasonable attorney fees.
Section 10.11. Corporate Authority. Each of the
officers signing below represent that they represent that they
have been fully and duly authorized by their respective Board of
Directors to execute this Agreement for the corporation.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the date first written above.
Mortgage Professionals Lead Source, Inc.
By: _____________________________
Xx. Xxxxxxx Xxxxxxx
Its: President
NBI Bioscience
By:
_______________________________
Mr. Xxxx X. X. Xxxxx
Its: President
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