AMENDED AND RESTATED ASSET PURCHASE AGREEMENT
AMENDED
AND RESTATED ASSET PURCHASE AGREEMENT
THIS
AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (the “Agreement”) is made this
29th
day of December and supersedes and replaces the Original Asset Purchase
Agreement dated the 21st day of June 2009, by and among Genio Group, Inc., a
Delaware corporation (“Genio Group Inc”); Millennium Prime, Inc., incorporated
under the laws of Nevada (“Millennium Prime, Inc.”); and the persons
listed in Exhibit A-1 hereof who are the owners of record of all the issued and
outstanding stock of Millennium Prime, Inc. who execute and deliver the
Agreement (“Millennium Prime, Inc. Stockholders”), based on the
following:
Recitals
On June 21, 2009 Genio Group Inc
entered into an Asset Purchase Agreement to acquire substantially all of the
assets of Millennium Prime, Inc. in exchange for common stock of Genio Group,
Inc.
Pursuant
to the Original Asset Purchase Agreement the Genio Group Inc. failed to satisfy
certain conditions set forth therein and as a result in order to consummate the
transaction the Genio Group Inc. has agreed to increase the consideration
payable to Millennium Prime, Inc. and its stockholders.
Agreement
Based on the stated premises, which are
incorporated herein by reference, and for and in consideration of the mutual
covenants and agreements hereinafter set forth, the mutual benefits to the
parties to be derived there from, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, it is hereby agreed as
follows:
ARTICLE
I
ASSET
SALE
1.01 Asset
Sale. On the terms and subject to the conditions set
forth in this Agreement, on the Closing Date (as defined in Section 1.05
hereof), Millennium Prime, Inc. shall assign, transfer, and deliver to Genio
Group Inc., free and clear of all liens, pledges, encumbrances, charges,
restrictions, or claims of any kind, nature, or description, those assets set
forth on Schedule 1.01 attached hereto (the “Millennium Prime, Inc. Assets”),
and Genio Group , Inc. agrees to acquire such assets on such date by issuing and
delivering in exchange therefore: (i) an aggregate of One Million (1,000,000)
restricted shares of Genio Group, Inc. Series A Preferred Stock, 1.00 par value
per share (the “Genio Series A Stock”) which may be assigned to the Millennium
Prime, Inc. Stockholders; and (ii) an aggregate of Twenty-Seven Million
(27,000,000) restricted shares of Genio Group, Inc. common stock, 0.0001 par
value per share (the “Genio Common Stock” and collectively with the Genio Series
A Stock, the "Genio Stock") which may be assigned to the Millennium Prime, Inc.
Stockholders. Except with respect to the Reverse Stock Split, all
shares of Genio Stock to be issued and delivered pursuant to this Agreement
shall be appropriately adjusted to take into account any stock split, stock
dividend, reverse stock split, recapitalization, or similar change in the equity
of Genio Group, Inc. which may occur between the date of the execution of this
Agreement and the Closing Date. In addition, Genio Group Inc. hereby
agrees to reimburse Xxxx Xxxxxxxx for his expenses incurred with respect to the
transactions contemplated by this Agreement in the amount of $101,800.00 out of
first proceeds of any subsequent financing of the company.
1.02 Further
Assurances. At the Closing and from time to time thereafter,
the Millennium Prime, Inc. shall execute such additional instruments and take
such other action as Genio Group, Inc. may reasonably request, without undue
cost to the Millennium Prime, Inc. in order to more effectively sell, transfer,
and assign clear title and ownership in the Millennium Prime, Inc. Assets to
Genio Group, Inc.
1.03 Closing and Parties.
The Closing contemplated hereby shall be held at such time
and place as my be mutually agreed upon time and place on or before December
31, 2009, or on another date to be agreed to in writing by the parties
(the “Closing Date”). The Transaction contemplated by this Agreement
may be closed at any time following approval by a majority of the shareholders
of Millennium Prime, Inc. stockholders, as set forth in Section
4.01.
1.04 Closing
Events
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(a)
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Genio Group, Inc.
Deliveries. Subject to fulfillment or waiver of the conditions set
forth in Article
IV, Genio Group , Inc. shall deliver to Millennium Prime, Inc. at
Closing all the following:
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(i)
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Incumbency
and specimen signature certificates dated the Closing Date with respect to
the officers of Genio Group , Inc. executing this Agreement and any other
document delivered pursuant hereto on behalf of Genio Group ,
Inc;
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(ii)
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Copies
of the resolution of Genio Group , Inc.’s board of directors and
shareholder minutes or consents (including a copy of the information
statement contained on Form 14C with respect to the transactions
contemplated by this Agreement as filed with the SEC and mailed to the
shareholders of Genio Group , Inc.) authorizing the execution and
performance of this Agreement and the contemplated transactions, certified
by the secretary or an assistant secretary of Genio Group , Inc. as of the
Closing Date;
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(iii)
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The
certificate of incorporation of Genio Group, Inc shall be amended to
provide for the reversal of shares on a two thousand (2000) for one (1)
basis (the "Reverse Stock Split") and the effective certificate of
designation of Genio Group, Inc. with respect to the rights and
preferences of the Series A Preferred Stock as set forth in Exhibit A
attached hereto.
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(iv)
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The
certificate contemplated by Section 4.02, duly executed by the chief
executive officer of Genio Group ,
Inc.;
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(v)
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The
certificate contemplated by Section 4.03, dated the Closing Date, signed
by the chief executive officer of Genio Group, Inc.;
and
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(vi)
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Certificates
representing 1,000,000 shares of Genio Series A Preferred Stock in the
names of the Millennium Prime, Inc., and certificates representing
27,000,000 post reverse-split shares of Genio Common
Stock.
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(vii)
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Genio
shall satisfy all debt due to Crestview Capital, the Xxxxxxxx Group of
entities, IIG and Ocean Drive Capital (with the exception of accrued
consulting fee notes due and payable to Xxxxxx X. Xxxxxxxx), via the
issuance of One Million post reverse-split shares, which shall be
allocated in accordance with such amounts as are set forth on the list set
forth in Schedule F annexed hereto and forming a part
hereof.
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In
addition to the above deliveries, Genio Group, Inc. shall take all steps and
actions as Millennium Prime, Inc. may reasonably request or as may otherwise be
reasonably necessary to consummate the transactions contemplated
hereby.
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(b)
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Millennium Prime, Inc.
Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Article V,
Millennium Prime, Inc. shall deliver to Genio Group , Inc. at Closing all
the following:
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(i)
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Incumbency
and specimen signature certificates dated the Closing Date with respect to
the officers of Millennium Prime, Inc. executing this Agreement and any
other document delivered pursuant hereto on behalf of Millennium Prime,
Inc. :
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(ii)
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Copies
of resolutions of the board of directors and of the stockholders of
Millennium Prime, Inc. authorizing the execution and performance of this
Agreement and the contemplated transactions, certified by the secretary or
an assistant secretary of Millennium Prime, Inc. as of the Closing
Date;
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(iii)
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The
certificate contemplated by Section 5.01 hereof, executed by the chief
operating officer of Millennium Prime,
Inc.;
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(iv)
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The
certificate contemplated by Section 5.02, dated the Closing Date, and
signed by the chief operating officer of Millennium Prime, Inc.;
and
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(v)
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The
Millennium Prime Assets.
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In
addition to the above deliveries, Millennium Prime, Inc. shall take all steps
and actions as Genio Group, Inc. may reasonably request or as may otherwise be
reasonably necessary to consummate the transactions contemplated
hereby.
ARTICLE
II
REPRESENTATION,
COVENANTS, AND WARRANTIES OF GENIO GROUP, INC.
Genio Group, Inc., as an inducement to,
and, in order to obtain the reliance of Millennium Prime, Inc. and/or Millennium
Prime, Inc., represents and warrants as follows:
2.01 Organization. Genio
Group, Inc. is, and will be on the Closing Date, a corporation duly organized,
validly existing, and in good standing under the laws of the state of Delaware
and has the corporate power and is and will be duly authorized, qualified,
franchised, and licensed under all applicable laws, regulations, ordinances, and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted, and
there are no other jurisdictions in which it is not so qualified in which the
character and location of the assets owned by it or the nature of the material
business transacted by it requires qualification, except where failure to do so
would not have a material adverse effect on its business, operation, properties,
assets or condition. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated by this
Agreement in accordance with the terms hereof will not, violate any provision of
Genio Group, Inc. articles of incorporation or by-laws, or other agreement to
which it is a party or by which it is bound.
2.02 Approval of
Agreement. Genio Group, Inc. has full power, authority, and
legal right and has taken, or will take, all action required by law, its
articles of incorporation, bylaws, and otherwise to execute and deliver this
Agreement and to consummate the transaction herein contemplated. The
board of directors of Genio Group, Inc. has authorized and approved the
execution, delivery, and performance of this Agreement and the transactions
contemplated hereby; subject to the approval of the Genio Group, Inc.
Stockholders and compliance with state and federal corporate and securities
laws.
2.03 Capitalization. The
authorized capitalization of Genio Group, Inc. consists of Two Hundred Fifty
Million (200,000,000) shares of common stock, .0001 value shares, of which
Ninety-Nine Million Nine Hundred and Eighty One Thousand Seven Hundred and
Eighty Seven (99,981,787) shares of common stock are now issued and
outstanding. All issued and outstanding shares of Genio Group, Inc., are legally
issued, fully paid, and non-assessable and not issued in violation of the
preemptive or other rights of any person. There are no dividends or
other amounts due or payable with respect to any of the shares of capital stock
of Genio Group, Inc. immediately following the closing hereof (including the
Reverse Stock Split) the authorized capitalization shall consist of: (i) Two
Hundred Fifty Million (250,000,000) shares of common stock at 0.0001 par value
and the total shares outstanding shall be Nine Million Nine Hundred Ninety-Nine
Thousand Nine Hundred and Ninety-One (9,999,991); and (ii) Ten Million
(10,000,000) shares of preferred stock at 1.00 par value authorized and total
preferred shares outstanding shall be One Million (1,000,000) designated as
Series A Preferred Stock.
2.04 Information. The
information concerning Genio Group, Inc. set forth in this Agreement is complete
and accurate in all material respects and does not contain any untrue statement
of a material fact or omit to state a material fact required to make the
statements made, in light of the circumstances under which they were made, not
misleading. Genio Group, Inc. shall cause the schedules delivered by
it pursuant hereto and the instruments delivered to Millennium Prime, Inc.
hereunder to be updated after the date hereof up to and including the Closing
Date.
2.05 Litigation and
Proceeding. There are no material actions, suits, or
administrative or other proceedings pending or, to the knowledge of Genio Group
, Inc., threatened by or against Genio Group , Inc. or adversely affecting Genio
Group , Inc. or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind. Genio Group, Inc. does not have any knowledge
of any default on its part with respect to any default on its part with respect
to any judgment, order, writ, injunction, decree, award, rule, or regulation of
any court, arbitrator, or governmental agency or instrumentality.
2.06 Compliance with Laws and
Regulations. Genio Group, Inc. has complied with all
applicable statutes and regulations of any federal, state, or other governmental
entity or agency thereof, except to the extent that noncompliance (i) could not
materially and adversely affect the business, operations, properties, assets, or
conditions of Genio Group, Inc. or (ii) could not result in the occurrence of
any material liability for Genio Group, Inc. To the best knowledge of Genio
Group, Inc., the consummation of this transaction will comply with all
applicable statures and regulations, subject to the preparation and filing of
any forms required by state and federal securities laws.
2.07 Material Contract
Defaults. Genio Group, Inc. is not in default in any material
respect under the terms of any outstanding contract, agreement, lease, or other
commitment which is material to the business, operations, properties, assets, or
condition of Genio Group, Inc., and there is no event of default in any material
respect under any such contract, agreement, lease, or other commitment in
respect of which Genio Group, Inc. has not taken adequate steps to prevent such
a default from occurring.
2.08 No Conflict With Other
Instrument. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an event of default
under, any material indenture, mortgage, deed of trust, or other material
contract, agreement, or instrument to which Genio Group, Inc. is a party or to
which any of its properties or operations are subject.
2.09 Subsidiary. Genio
Group, Inc. does not own, beneficially or of record, any equity securities in
any other entity.
2.10 Genio Group, Inc.
Schedules. Genio Group, Inc. has delivered to Millennium
Prime, Inc. the following schedules, which are collectively referred to as the
“Genio Group, Inc. Schedules” and which consist of the following separate
schedules dated as of the date of execution of this Agreement, all certified by
a duly authorized officer of Genio Group , Inc. as complete, true and
accurate:
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(a)
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A
schedule including copies of the articles of incorporation and bylaws of
Genio Group, Inc. in effect as of the date of this
Agreement;
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(b)
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A
schedule containing copies of resolutions adopted by the board of
Directors
of Genio Group, Inc. approving this Agreement and the transactions herein
contemplated;
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(c)
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A
schedule setting forth a description of any material adverse change in the
business, operations, property, inventory, assets, or condition of Genio
Group, Inc. since the most recent Genio Group, Inc. balance sheet,
required to be provided pursuant to Section 2.04
hereof,
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(d)
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A
schedule setting forth the financial statements required pursuant to
Section 2.04(a) hereof; and
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(e)
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A
schedule setting forth any other information, together with any required
copies of documents, required to be disclosed in the Genio Group, Inc.
Schedules by Sections 2.01 through
2.10.
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Genio
Group, Inc. shall cause the Genio Group, Inc. Schedules and the instruments
delivered to Millennium Prime, Inc. hereunder to be updated after the date
hereof up to and including a specified date not more than three (3) business
days prior to the Closing Date. Such updated Genio Group , Inc.
Schedules, certified in the same manner as the original Genio Group , Inc.
Schedules, shall be delivered prior to and as a condition precedent to the
obligation of the Millennium Prime, Inc., to close.
ARTICLE
III
REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF MILLENNIUM PRIME, INC.
As an inducement to, and to obtain the
reliance of, Genio Group, Inc, Millennium Prime, Inc., hereby represent and
warrant as follows:
3.01 Organization. Millennium
Prime, Inc. is, and will be on the Closing Date, a corporation duly organized,
validly existing, and in good standing under the laws of the state of
Nevada and has the corporate power and is and will be duly
authorized, qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and orders of public authorities to own all of its
properties and assets and to carry on its business in all material respects as
it is now being conducted, and there are no other jurisdictions in which it is
not so qualified in which the character and location of the assets owned by it
or the nature of the material business transacted by its requires qualification,
except where failure to do so would not have a material adverse effect on its
business, operations, properties, assets or conditions of Millennium Prime,
Inc. The execution and delivery of this Agreement does not, and the
consummation of the transaction contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of Millennium Prime,
Inc.'s by-laws or articles of incorporation, or other material agreement to
which it is a party or by which it is bound.
3.02 Approval of
Agreement. Millennium Prime, Inc. has full power, authority,
and legal right and has taken, or will take, all action required by law, its
articles of incorporation, by-laws, or otherwise to execute and deliver this
Agreement and to consummate the transactions herein contemplated. The
board of directors of Millennium Prime, Inc., have authorized and approved the
execution, delivery, and performance of this Agreement and the transactions
contemplated hereby; subject to the approval of the Millennium Prime, Inc.
Stockholders.
3.03 Intentionally Omitted
3.04 Information. The
information concerning Millennium Prime, Inc. set forth in this Agreement and in
the schedules delivered by Millennium Prime, Inc. pursuant hereto is complete
and accurate in all material respects and does not contain any untrue statement
of a material fact or omit to state a material fact required to make the
statements made, in light of the circumstances under which they were made, not
misleading. Millennium Prime, Inc. shall cause the schedules
delivered by Millennium Prime, Inc. pursuant hereto to Genio Group, Inc.
hereunder to be updated after the date hereof up to and including the Closing
Date.
3.05 Title and Related
Matters. Except as provided herein or disclosed in the most recent
Millennium Prime, Inc., balance sheet and the notes therein, Millennium Prime,
Inc. has good and marketable title to all of its
properties, inventory, interests in properties, technology, whether patented or
un-patented, and assets, which are reflected in the most recent Millennium
Prime, Inc. balance sheet or acquired after that date (except properties,
interests in properties, and assets sold or otherwise disposed of since such
date in the ordinary course of business), free and clear of all mortgages,
liens, pledges, charges, or encumbrances, except (i) statutory liens or claims
not yet delinquent; and (ii) such imperfections of title and easements as do
not, and will not, materially detract from, or interfere with, the present or
proposed use of the properties subject thereto or affected thereby or otherwise
materially impair present business operations on such properties. To
the best knowledge of Millennium Prime, Inc., its technology does not infringe
on the copyright, patent, trade secrets, know-how, or other proprietary right of
any other person or entity and comprises all such rights necessary to permit the
operation of the business of Millennium Prime, Inc. as now being conducted or as
contemplated.
3.06 Litigation and
Proceedings. Except as otherwise disclosed in Schedule 3.06,
there are no material actions, suits, or proceedings pending or, to the
knowledge of Millennium Prime, Inc., threatened by or against Millennium Prime,
Inc., or adversely affecting Millennium Prime, Inc., at law or in equity, before
any court or other governmental agency or instrumentality, domestic or foreign,
or before any arbitrator of any kind. Millennium Prime, Inc. does not
have any knowledge of any default on its part with respect to any judgment,
order, writ, injunction, decree, award, rule, or regulation of any court,
arbitrator, or governmental agency or instrumentality.
3.07 Material Contract
Defaults. Millennium Prime, Inc. is not in
default in any material respect under the terms of any outstanding contract,
agreement, lease, or other commitment which is material to the business,
operations, properties, assets, or condition of Millennium Prime, Inc., and
there is no event of default or other event which, with notice or lapse of time
or both, would constitute a default in any material respect under any such
contract, agreement, lease, or other commitment in respect of which Millennium
Prime, Inc. has not taken adequate steps to prevent such
a default from occurring.
3.08 No Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an event of default
under, any material indenture, mortgage, deed of trust, or other material
contract, agreement, or instrument to which Millennium Prime, Inc. is a party or
to which any of its properties or operations are subject.
3.09 Governmental
Authorization. Millennium Prime, Inc. licenses, franchises,
permits, and other governmental authorizations that are legally required to
enable it to conduct its business in all material respects as conducted on the
date of this Agreement. Except for compliance with federal and state
securities and corporation laws, as hereinafter provided, no authorization,
approval, consent, or order of, or registration, declaration, or filing with,
any court or other governmental body is required in connection with the
execution and delivery by Millennium Prime, Inc.’s Agreement and the
consummation by Millennium Prime, Inc. of the transactions contemplated
hereby.
3.10 Compliance with Laws and
Regulations. Millennium Prime, Inc. has complied
with all applicable statutes and regulations of any federal, state, or other
governmental entity or agency thereof, except to the extent that noncompliance
would not materially and adversely affect the business, operations, properties,
assets, or conditions of Millennium Prime, Inc., or except to the extent that
noncompliance would not result in the occurrence of any material liability for
Millennium Prime, Inc. To the best of knowledge of Millennium Prime, Inc., the
consummation of this transaction will comply with all applicable statutes and
regulations, subject to the preparation and filing of any forms required by
state and federal securities laws.
3.11 Subsidiary. Millennium
Prime, Inc. does not own, beneficially or of record, any equity Securities in
any other entity.
3.12 Millennium Prime, Inc.
Schedules. Millennium Prime, Inc. has delivered to Millennium Prime, Inc.
the following schedules, which are collectively referred to as the “Millennium
Prime, Inc. Schedules” and which consist of the following separate schedules
dated as of the date of execution of this Agreement, all certified by the chief
executive officer of Millennium Prime, Inc. as complete, true, and
accurate:
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(a)
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A
schedule including copies of the By-laws and Articles of Incorporation
of Millennium Prime, Inc., and all amendments thereto as in effect as of
the date of this Agreement;
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(b)
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A
schedule containing copies of resolutions adopted by the board of
directors of Millennium Prime, Inc. approving this Agreement and the
transactions herein contemplated as referred to in Section
3.02;
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(c)
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A
schedule setting forth the list of Millennium Prime Assets required
pursuant to Section 1.01 hereof;
and
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Millennium
Prime, Inc. shall cause the Millennium Prime, Inc. Schedules and the instruments
delivered to Genio Group , Inc. hereunder to be updated after the date hereof up
to end including a specified date not more than three business days prior to the
Closing Date. Such updated Genio Group , Inc. Schedules, attested to
in the same manner as the original Millennium Prime, Inc. Schedules, shall be
delivered prior to and as a condition precedent to the obligation of Genio Group
, Inc. to close.
ARTICLE
IV
CONDITIONS
PRECEDENT TO OBLIGATIONS OF MILLENNIUM PRIME, INC.
The obligations of Millennium Prime,
Inc. to be performed under this Agreement are subject to satisfaction by Genio
Group, Inc., at or before the Closing Date, of the following
conditions;
4.01 Shareholder
Approval. Millennium Prime, Inc. shall call and hold a meeting
of its shareholders, or obtain the written consent of a majority of its
shareholders, to approve the transactions contemplated by this agreement
including the acquisition of Millennium Prime, Inc. through the share exchange
in accordance with the agreement.
4.02 Accuracy of
Representations. The representations and warranties made by
Genio Group, Inc. in this Agreement were true when made and shall be true at the
closing Date with the same force and affect as if such representations and
warranties were made at and as of the Closing Date (except for changes therein
permitted by this Agreement), and Genio Group, Inc. shall have performed or
complied with all covenants and conditions required by this Agreement to be
performed or complied with by Genio Group , Inc. prior to or at the
Closing. Millennium Prime, Inc. shall be furnished with certificates,
signed by duly authorized officers of Genio Group, Inc. and dated the Closing
Date, to the foregoing effect.
4.03 Officer’s
Certificates. Millennium Prime, Inc. shall have
been furnished with certificates dated the Closing Date and signed by the duly
authorized chief executive officer of Genio Group, Inc. to the best knowledge no
litigation, proceeding, investigation, or inquiry is pending or, to the best
knowledge of Genio Group, Inc. threatened, which might result in an action to
enjoin or prevent the consummation of the transactions contemplated by this
Agreement. Furthermore, the certificate of such officer shall
represent that:
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(a)
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This
Agreement has been duly approved by Genio Group , Inc. board of directors
and has been duly executed and delivered in the name and on behalf of
Genio Group , Inc. by its duly authorized officers pursuant to, and in
compliance with, authority granted by the board of directors of Genio
Group , Inc. pursuant to a unanimous
consent;
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(b)
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There
has been no material adverse change in Genio Group, Inc. up to and
including the date of the
certificate;
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(c)
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All
conditions required by this Agreement has been met, satisfied, or
performed by Genio Group, Inc.;
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(d)
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All
authorizations, consents, approvals, registrations, and/or filings with
any governmental body, agency, or court required in connection with the
execution and delivery of the documents by Genio Group, Inc. have been
obtained and are in full force and effect or, if not required to have been
obtained, will be in full force and effect by such time as may be
required; and
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(e)
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There
is no material action, suit, proceeding, inquiry, or investigation at law
or in equity by any public board or body pending or threatened against
Genio Group , Inc., wherein an unfavorable decision, ruling, or finding
could have an adverse effect on the financial condition of Genio Group ,
Inc., the operation of Genio Group , Inc., or the acquisition and
reorganization contemplated herein, or any agreement or instrument by
which Genio Group , Inc. is bound or in any way contests the existence of
Genio Group , Inc.
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4.04 No Material Adverse
Change. Prior to the Closing Date, there shall not has
occurred any material adverse change in the financial condition, business, or
operations of Genio Group, Inc., nor shall any event have occurred which, with
the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business, or operations of Genio
Group, Inc.
4.05 Good
Standing. Millennium Prime, Inc. shall have received a
certificate of good standing from the secretary of state of Delaware, dated as
of the date within five days prior to the Closing Date, certifying that
Millennium Prime, Inc. is in good standing as a corporation in the State of
Delaware.
4.06 Other
Items. Millennium Prime, Inc. shall have received such further
documents, certificates, or instruments relating to the transactions
contemplated hereby as Millennium Prime, Inc. may reasonably
request.
ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF GENIO GROUP INC
The
obligations of Genio Group, Inc. under this Agreement are subject to the
satisfaction, by Millennium Prime, Inc., at or before the Closing Date, of the
following conditions;
5.01 Shareholder
Approval. Genio Group, Inc. shall: (i) file an information
statement contained on Form 14C with respect to the transactions contemplated by
this Agreement with the Securities Exchange Commission and mail the statement to
its shareholders in accordance with applicable federal and state laws, and (ii)
obtain the written consent of a majority of its shareholders, to approve the
transactions contemplated by this agreement.
5.02 Accuracy of
Representations. The representations and warranties made by
Millennium Prime, Inc. in this Agreement were true when made and shall be true
at the Closing Date with the same force and affect as if such representations
and warranties were made at and as of the Closing Date (except for changes
therein permitted by this Agreement), and Millennium Prime, Inc. shall have
performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by Millennium Prime, Inc. prior to or
at the Closing. Genio Group, Inc. shall be furnished with a
certificate, signed by a duly authorized officer of Millennium Prime, Inc. and
dated the Closing Date, to the foregoing effect.
5.03 Officer’s
Certificates. Genio Group, Inc. shall have been furnished with
certificates dated the Closing Date and signed by the duly authorized chief
operating officer of Millennium Prime, Inc. to the effect that no
litigation, proceeding, investigation, or inquiry is pending or, to the best
knowledge of Millennium Prime, Inc., threatened, which might result in an action
to enjoin or prevent the consummation of the transactions contemplated by this
Agreement. Furthermore, these certificates shall represent, to the
best knowledge of the officer, that:
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(a)
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This
Agreement has been duly approved by Millennium Prime, Inc.’s board of
directors and shareholders and has been duly executed and delivered in the
name and on behalf of Millennium Prime, Inc. by its duly authorized
officers pursuant to, and in compliance with, authority granted to it by
the board of directors of Millennium Prime, Inc., pursuant to a unanimous
consent of its board of directors and a majority vote of its
stockholders:
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(b)
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Except
as provided or permitted herein, there have been no material adverse
changes in Millennium Prime, Inc. up to and including the date
of the certificate;
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(c)
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All
authorizations, consents, approvals, registrations, and/or filing with any
governmental body agency, or court required in connection with the
execution and delivery of the documents by Millennium Prime, Inc. have
been obtained and are in full force and effect or, if not required to have
been obtained will be in full force and effect by such time as may be
required: and
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(d)
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Except
as otherwise disclosed in Schedule 3.06, there is no material action,
suit, proceeding, inquiry, or investigation at law or in equity by any
public board or body pending or threatened against Millennium Prime, Inc.,
wherein an unfavorable decision, ruling, or finding would have an adverse
effect on the financial condition of Millennium Prime, Inc. the operation
of Millennium Prime, Inc., or the acquisition and reorganization
contemplated herein, or any material agreement or instrument by which
Millennium Prime, Inc. is bound.
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5.04 No Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred, any material adverse change in the financial condition, business or
operations of Millennium Prime, Inc., nor shall any event have occurred, which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business, or operations of Millennium
Prime, Inc.
5.05 Good
Standing. Genio Group, Inc. shall have received a certificate
of good standing from the appropriate authority, dated as of a date within five
days prior to the Closing Date, certifying that Millennium Prime, Inc. is in
good standing as a corporation in the state of Nevada.
5.06 Other
Items. Genio Group, Inc. shall have received such further
documents, certificates, or instruments relating to the transactions
contemplated hereby as Genio Group, Inc. may reasonably request.
ARTICLE
VI
SPECIAL
COVENANTS
6.01 Activities of Genio Group ,
Inc. and Millennium Prime, Inc.
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(a)
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From
and after the date of this Agreement until the Closing Date and except as
set forth in the respective schedules to be delivered by Genio Group, Inc.
and Millennium Prime, Inc. pursuant hereto or as permitted or contemplated
by this Agreement, Genio Group, Inc. and Millennium Prime, Inc. will
each:
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(i)
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carry
on its business in substantially the same manner as it has
heretofore;
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(ii)
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Maintain
in full force and effect insurance comparable in amount and in scope of
coverage to that now maintained by
it;
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(iii)
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Perform
in all material respects all of its obligations under material contracts,
leases, and instruments relating to or affecting its assets, properties,
and business;
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(iv)
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Use
its best efforts to maintain and preserve its business organization
intact, to retain its key employees, and to maintain its relationships
with its material suppliers and
customers;
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(v)
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Duly
and timely file for all taxable periods ending on or prior to the Closing
Date all federal, state, county, and local tax returns required to be
filed by or on behalf of such entity or for which such entity may be held
responsible and shall pay, or cause to be paid, all taxes required to be
shown as due and payable on such returns, as well as all installments of
tax due and payable during the period commencing on the date of this
Agreement and ending on the Closing Date;
and
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(vi)
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Fully
comply with and perform in all material respects all obligations and
duties imposed on it by all federal and state laws and all rules,
regulations, and orders imposed by federal or state governmental
authorities.
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(b)
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From
and after the date of this Agreement and except as provided herein until
the Closing Date, Millennium Prime, Inc. will
not:
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(i)
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make
any change in its Articles of Incorporation or
bylaws;
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(ii)
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Enter
into or amend any material contract, agreement, or other instrument of any
of the types described in such party’s schedules, except that a party may
enter into or amend any contract, agreement, or other instrument in the
ordinary course of business; and Enter into any agreement for the sale of
Millennium Prime, Inc. securities without the prior approval of Genio
Group, Inc.
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6.02 Access to Properties and
Records. Until the Closing Date, Millennium Prime,
Inc. will afford to the other party’s officers and authorized
representatives full access to the properties, books, and records of the other
party in order that each party may have full opportunity to make such reasonable
investigation as it shall desire to make of the affairs of Millennium Prime,
Inc. and will furnish the other party with such additional financial and other
information as to the business and properties of Millennium Prime, Inc. as shall
from time to time reasonably request.
6.03 Indemnification by
Millennium Prime, Inc. and the Millennium Prime,
Inc. Stockholders. Millennium Prime, Inc., and each
of the Millennium Prime, Inc. Stockholders will jointly and severally
indemnify and hold harmless Genio Group, Inc. and its directors and officers,
and each person, if any, who controls Genio Group, Inc. within the meaning of
the Securities Act, from and against any and all losses, claims, damages,
expenses, liabilities, or actions to which any of them may become subject under
applicable law (including the Securities Act and the Securities Exchange Act)
and will reimburse them for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any claims or actions,
whether or not resulting in liability, insofar as such losses, claims, damages,
expenses, liabilities, or actions arise out of or are based upon any untrue
statement or alleged untrue statement of material fact contained in any
application or statement filed with a governmental body or arising out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary in order to make the statements
therein not misleading, but only insofar as any such statement or omission was
made in reliance upon and in conformity with information furnished in writing by
Millennium Prime, Inc. expressly for use therein. The indemnity
agreement contained in this Section 6.03 shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of Genio
Group, Inc. and shall survive the consummation of the transactions contemplated
by this Agreement for a period of six (6) months.
6.04 Indemnification by Genio
Group, Inc. Genio Group , Inc. will indemnify and hold
harmless Millennium Prime, Inc., the Millennium Prime, Inc. Stockholders, from
and against any and all losses, claims, damages, expenses, liabilities, or
actions to which any of them may become subject under applicable law (including
the Securities Act of 1933 and the Securities Exchange Act of 1934) and will
reimburse them for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any claims or actions, whether or not
resulting in liability, insofar as such losses, claims, damages, expenses,
liabilities, or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any application or
statement filed with a governmental body or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary in order to make the statements therein not
misleading, but only insofar as any such statement or omission was made in
reliance upon and in conformity with information furnished in writing by Genio
Group , Inc. expressly for use therein. The indemnity agreement
contained in this Section 6.04 shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of Millennium
Prime, Inc. and shall survive the consummation of the transactions contemplated
by this Agreement for a period of six months.
6.05 The Acquisition of Genio
Group , Inc. Common Stock. Genio Group, Inc. and Millennium
Prime, Inc. understand and agree that the consummation of this Agreement
including the issuance of the Genio Stock to Millennium Prime, Inc. in exchange
for the Millennium Prime, Inc. Assets as contemplated hereby constitutes the
offer and sale of securities under the Securities Act and applicable state
statutes. Genio Group , Inc., and Millennium Prime, Inc., agree that
such transactions shall be consummated in reliance on exemptions from the
registration and prospectus delivery requirements of such statutes that depend,
among other items, on the circumstances under which such securities are
acquired.
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(a)
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In
order to provide documentation for reliance upon exemption from the
registration and prospectus delivery requirements for such transactions,
the signing of this Agreement and the delivery of appropriate separate
representations shall constitute the parties acceptance of, and
concurrence in, the following representations and
warranties:
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(i)
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Millennium
Prime, Inc. acknowledges that neither the SEC nor the securities
commission of any state or other federal agency has made any determination
as to the merits of acquiring Genio Group , Inc. Common Stock, and that
this transaction involves certain
risks.
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(ii)
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Millennium
Prime, Inc. has received and read the Agreement and understand the risks
related to the consummation of the transactions herein
contemplated.
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(iii)
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Millennium
Prime, Inc. has such knowledge and experience in business and financial
matters is capable of evaluating each
business.
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(iv)
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Millennium
Prime, Inc has been provided with copies of all materials and information
requested by them or their representatives, including any information
requested to verify any information furnished (to the extent such
information is available or can be obtained without unreasonable effort or
expense), and the parties have been provided the opportunity for direct
communication regarding the transactions contemplated
hereby.
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(v)
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All
information which Millennium Prime, Inc. has provided to Genio Group, Inc.
or their representatives concerning their suitability and intent to hold
shares in Genio Group, Inc. following the transactions contemplated hereby
is complete, accurate, and correct.
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(vi)
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Millennium
Prime, Inc. understands that the share exchange of the Genio Stock has not
been registered and that the exchange will be made pursuant to an
exemption from registration under the Securities Act as well as under
certain state statutes for transactions not involving any public offering
and that any disposition of the subject Genio Stock may, under certain
circumstances, be inconsistent with this
exemption.
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(vii)
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Millennium
Prime, Inc. acknowledges that the shares of Genio Stock must be held and
may not be sold, transferred, or otherwise disposed of for value unless
they are subsequently registered under the Securities Act or an Exemption
from registration is available. Genio Group, Inc. is not under any
obligation to register the Genio Stock under the Securities Act. Genio
Group, Inc.’s registrar and transfer agent will maintain a stop transfer
order against the registration and transfer of the Genio Stock held by
Millennium Prime, Inc. and the certificates representing the Genio Stock
will bear a legend in substantially the following form so restricting the
sale of such securities:
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THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND ARE
“REGISTRICTED SECURITIES” WITHIN THE MEANING OF RULE 144 PROMULGATED UNDER
THE SECURITIES ACT. THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION.
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(ix)
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Subject
to compliance with federal and state securities laws, Genio Group, Inc.
may refuse to register further transfers or resale of the Genio Stock in
the absence of compliance with Rule 144 unless the Millennium Prime, Inc.
or it’s assignees furnish Genio Group, Inc. with an opinion of counsel
acceptable to Genio Group Inc. stating that the transfer is
proper. Further, unless such opinion states that the shares of
Genio Stock are free of any restrictions under the Securities Act, Genio
Group, Inc. may refuse to transfer the securities to any transferee who
does not furnish in writing to Genio Group, Inc. the same representations
and agree to the same conditions with respect to such Genio Stock as set
forth herein. Genio Group, Inc. may also refuse to transfer the Genio
Stock if it does not believe that the transferee’s representations are not
accurate.
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(b)
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Millennium
Prime, Inc. acknowledges that the basis for relying on exemptions from
registration or qualification are factual, depending on the conduct of the
various parties, and that no legal opinion or other assurance will be
required or given to the effect that the transactions contemplated hereby
are in fact exempt from registration or
qualification.
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6.06 Genio Group, Inc.
Liabilities. Immediately prior to the Closing Date, Genio
Group, Inc. shall have no material assets or liabilities (except as expressly
provided in the company's filings), other then than fees due to the share
exchange and accrued consulting fee notes owed to Xxxxxx X.
Xxxxxxxx.
6.07 Sales of Securities Under
Rule 144, If Applicable. Genio Group, Inc. will use its best
efforts to at all times satisfy the current public information requirements of
Rule 144 promulgated under the Securities Act.
6.08 New Board of Directors and
Officers. Upon the closing of the transactions contemplated by
this Agreement, the current board of directors and officers of Genio Group, Inc.
shall resign and in their place nominees of Millennium Prime, Inc. shall be
appointed, subject to the approval of the suitability and qualifications of such
nominees.
6.09 Genio Group, Inc.
Capitalization. For a period of Twenty Four months from the Closing Date,
except with respect to the Reverse Stock Split, Genio Group, Inc. will not
engage in any reverse split of its issued and outstanding Common Stock without
the prior written approval of the holders of a majority in interest of the
issued and outstanding Genio Stock on the date of this Agreement.
ARTICLE
VII
MISCELLANEOUS
7.01 Brokers. Except
as otherwise provided herein, Genio Group, Inc., and Millennium Prime, Inc.,
agree that there were no finders or brokers involved in bringing the parties
together or who were instrumental in the negotiation, execution, or consummation
of this Agreement. Further, Genio Group, Inc., and Millennium Prime, Inc. each
agree to indemnify the other against any claim by any third person for any
commission, brokerage, or finder’s fee or other payment with respect to this
Agreement or the transactions contemplated hereby based on any alleged agreement
or understanding between such party and such third person, whether express or
implied, from the actions of such party.
The
covenants set forth in this section shall survive the Closing Date and the
consummation of the transactions herein contemplated.
7.02 No Representation Regarding
Tax Treatment. No representation or warranty is being made by
any party to any other regarding the treatment of this transaction for federal
or state income taxation. Each party has relied exclusively on its
own legal, accounting, and other tax adviser regarding the treatment of this
transaction for federal and state income taxes and on representation, warranty,
or assurance from any other party or such other party’s legal, accounting, or
other adviser.
7.03 Governing
Law. This Agreement shall be governed by, enforced and
construed under and in accordance with the laws of the State of
Delaware.
7.04 Notices. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered, if sent by facsimile or telecopy
transmission or other electronic communication confirmed by registered or
certified mail, postage prepaid, or if sent by prepaid overnight courier
addressed as follows:
If
to Genio Group, Inc.:
000
Xxxxxx Xxxx Xxxxx
Xxxxxx
Xxxx, XX 00000
If
to Millennium Prime, Inc.:
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, Xx 00000
or such
other addresses as shall be furnished in writing by any party in the manner for
giving notices, hereunder, and any such notice or communication shall be deemed
to have been given as of the date so delivered or sent by facsimile or telecopy
transmission or other electronic communication, or one day after the date so
sent by overnight courier.
7.05 Attorney’s
Fees. In the event that any party institutes any action or
suit to enforce this Agreement or to secure relief from any default hereunder or
breach hereof, the breaching party or parties shall reimburse the non-breaching
party or parties from all costs, including reasonable attorneys fees, incurred
in connection therewith and in enforcing or collecting any judgment rendered
therein.
7.06 Schedules /
Knowledge. Whenever in any section of this Agreement reference
is made to information set forth in the schedules provided by Genio Group, Inc.
or Millennium Prime, Inc. such reference is to information specifically set
forth in such schedules and clearly marked to identify the section of this
Agreement to which the information relates. Whenever any representation is made
to the “knowledge” of any party, it shall be deemed to be a representation that
no officer or director of such party, after reasonable investigation, has any
knowledge of such matters.
7.07 Entire
Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof. All
previous agreements between the parties, whether written or oral, have been
merged into this Agreement. The Agreement alone fully and completely
expresses the agreement of the parties relating to the subject matter
hereof. There are no other courses of dealing, understandings,
agreements, representations, or warranties, written or oral, except as set forth
herein.
7.08 Survival
Termination. The representations, warranties, and covenants of
the respective parties shall survive the Closing Date and the consummation of
the transactions herein contemplated for a period of six months from the Closing
Date, unless otherwise provided herein.
7.09 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
7.10 Amendment or
Waiver. Every right and remedy provided herein shall
be
cumulative
with every other right and remedy, whether conferred herein, at law, or in
equity, and such remedies may be enforced concurrently, and no waiver by any
party of the performance of any obligation by the other shall be construed as a
waiver of the same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance thereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
IN
WITNESS WHEREOF, the corporate parties hereto have caused this Agreement to be
executed by their respective officers, hereunto duly authorized, as of the date
first above written.
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Genio
Group, Inc.
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Witness:
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A
Delaware Corporation
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||||
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By:
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By:
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Xxxxxx
X. Xxxxxxxx, President
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||||
| Millennium Prime, Inc. |
Witness:
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| A Nevada Corporation | ||||
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By:
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By:
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Xxxx
X. Xxxxxxxx, President
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||||
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Millennium
Prime, Inc. Stockholders
|
||||
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By:
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||||
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Xxxx
X. Xxxxxxxx
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||||
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By:
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||||
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Xxxx
Xxxxxxxxx
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