OPTION AGREEMENT
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EXHIBIT 10.1
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“THIS AGREEMENT, AS WELL AS THE SECURITIES THAT
ARE THE SUBJECT OF THIS AGREEMENT, HAS BEEN ISSUED IN RELIANCE UPON THE
EXEMPTION FROM REGISTRATION AFFORDED BY SECTION 4(2) OF THE SECURITIES ACT OF
1933, AS AMENDED. AND MAY NOT BE TRANSFERRED WITHOUT AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION TO THE EFFECT THAT ANY SUCH PROPOSED TRANSFER IS
IN ACCORDANCE WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS.”
This
Option Agreement (the “Option”) is made and entered into as of the 30th day of
December, 2008, by and between ubroadcast, Inc., a Nevada corporation
(“Optionor”), and Diamond I, Inc., a Delaware corporation (“Optionee”), in light
of the following:
WHEREAS,
Optionor is a privately held company engaged in e-commerce and desires to attain
public ownership status in order to pursue its business plans for growth and
capital formation; and
WHEREAS,
Optionee is a publically traded company with its stock trading in the OTC
Bulletin Board under the symbol “DMOI”; and
WHEREAS,
Optionee wishes to obtain an option to engage Optionor in a Plan and Agreement
Merger and requires some period of time in which to carry out a due diligence
investigation of Optionor; and
WHEREAS,
Optionor desires to conclude an agreement leading to a merger with Optionee in a
transaction known as a reverse merger but is unwilling to delay its progress
toward public ownership to provide Optionor a due diligence period, unless it is
compensated for such period of delay during which time it would be required to
forego other merger opportunities; and
WHEREFORE,
the agreement of the parties, the promises of each being consideration for the
promises of the other, the parties agree as follows:
X. XXXXX
OF OPTION
Optionor,
for the consideration and subject to the terms and conditions set forth herein,
hereby grants to Optionee a paid-for option (the “Option”) to require Optionor
to execute and enter into a Plan and Agreement of Merger in the form Exhibit “A”
attached hereto and by this reference incorporated into the Agreement as if
fully set forth herein.
II. CONSIDERATION
FOR OPTION
Optionee
agrees to issue to Optionor 200,000,000 of its $0.001 par value common stock
(the “Option Stock”) immediately upon the mutual execution of the Agreement as
and for full payment for the Option.
III. MANNER
AND TIME OF EXERCISE OF OPTION
Optionee
shall exercise this Option by giving written notice of exercise thereof in
writing delivered to Optionor on or before the close of business on January 15,
2008.
IV. THE
OPTION STOCK
The
Option Stock will, when issued, be valid issued, fully paid and non-assessable
common stock of Optionee. The Option Stock shall constitute “restricted
securities”, as that term is defined in the Rules and Regulations of the
Securities and Exchange Commission. Optionor consents to the placement on any
certificate or certificates representing the Option Stock a legend in the
following, or similar form:
“THESE SECURITIES HAVE BEEN
ISSUED IN RELIANCE UPON THE EXEMPTION FROM REGISTRATION AFFORDED BY SECTION 4(2)
OF THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED WITHOUT AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION TO THE EFFECT THAT ANY SUCH
PROPOSED TRANSFER IS IN ACCORDANCE WITH ALL APPLICABLE LAWS. RULES AND
REGULATIONS.”
Optionor
agrees that it is acquiring the Option Stock for its own account, for investment
and with no view toward distribution.
The
Option Stock will be delivered to Optionor upon the mutual execution of this
Agreement.
V. OPTIONOR’S
COOPERATION AND ASSISTANCE
Optionor
shall cooperate with Optionee in completing its due diligence investigation and
shall offer all reasonable assistance to Optionee in that regard. Optionor shall
make available for inspection and/or copying its corporate minutes, documents,
and all other records, financial or otherwise, designated by Optionee as
necessary to its investigation. The failure or refusal to provide such
assistance by Optionor that Optionor is required to provide hereunder shall, at
Optionee’s option, extend the time for Optionee’s exercise of the Option
provided for herein.
VI. REPRESENTATIONS
AND WARRANTIES
A. By
Optionor:
(1) Optionor
is a development-stage company.
(2) The
execution and performance of this Agreement by Optionor will not result in any
violation or be in conflict with any agreement to which it is a party.
(3) The
execution and performance of this Agreement has been duly authorized by the
board of directors of Optionor.
B. By
Optionee:
(1) Optionee
is a development-stage company without significant revenues and is substantially
illiquid and does not possess adequate capital to pursue its business
plan.
(2) The
execution and performance of this Agreement by Optionee will not result in any
violation or be in conflict with any agreement to which it is a party.
(3) The
execution and performance of this Agreement has been duly authorized by the
board of directors of Optionee.
VII. MISCELLANEOUS
Notice.
All notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed to have been duly given or made as of the date
delivered via e-mail or facsimile or mailed if delivered personally or mailed by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice, except that notices of changes of address
shall be effective upon receipt):
If
to
Optionor: ubroadcast,
Inc.
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx Xxxxxxxxxx,
00000
E-mail
Address: xxxx@x0xx.xxx; xxxxx@x0xx.xxx
Facsimile:
(000) 000-0000
If
to
Optionee: Diamond
I, Inc.
0000
Xxxxxx Xxxx, Xxxxx 000
Xxxxx
Xxxxx Xxxxxxxxx 00000
E-mail
Address: xxxxxxx@xxx.xxx
Facsimile:
000-000-0000
Assignment.
This Agreement, including any rights contained herein, may not be assigned,
encumbered or transferred by either party without the written consent of the
other party.
Arbitration.
In the event of a dispute between the parties hereto that arises out of this
Agreement, the parties hereby agree to submit such dispute to arbitration before
the American Arbitration Association (the "Association") at its Dallas, Texas,
offices. in accordance with the then-current rules of the Association; the award
given by the arbitrators shall be binding and a judgment can be obtained on any
such award in any court of competent jurisdiction. It is expressly agreed that
the arbitrators, as part of their award, can award attorneys fees to the
prevailing party.
Governing
Law. This Agreement shall be deemed to be a contract made under. governed by and
construed in accordance with the substantive laws of the State of
Texas.
Counterparts.
This Agreement may be executed simultaneously in counterparts, each of which
when so executed and delivered shall be taken to be an original; but such
counterparts shall together constitute but one and the same documents.
Successors
and Assigns. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon. the successors,
assigns and administrators of the parties hereto.
Entire
Agreement. This Agreement, the other agreements and the other documents
delivered pursuant hereto and thereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
IN
WITNESS WHEREOF, the parties have signed this Agreement as of the day and year
first above written.
DIAMOND
I,
INC. UBROADCAST,
INC.
By:
/s/ XXXXX
XXXXXX By:
/s/ XXXX XXXXXXXXXXX
Xxxxx
Xxxxxx
President Name:
Xxxx Xxxxxxxxxxx
Title:
President
