UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
AMENDMENT NO. 2
THE SECURITIES EXCHANGE ACT OF 1934
Catalyst Lighting Group, Inc.
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(Name of Issuer)
Common Stock, par value $.0001 per share
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(Title of Class of Securities)
14887 U 201
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(CUSIP Number)
Timothy J. Keating
5251 DTC Parkway, Suite 1000
Greenwood Village, CO 80111
(720) 889-0131
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 15, 2010
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. |_|
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP No. None
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
KIG Investors I, LLC
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) |_|
(b) |_|
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3. SEC Use Only
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4. Source of Funds (See Instructions) Not applicable
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5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d)
or 2(e) |_|
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6. Citizenship or Place of Organization Delaware
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7. Sole Voting Power 0
Number of ------------------------------------------------
Shares Beneficially
Owned 8. Shared Voting Power 0 (see Item 5)
By Each ------------------------------------------------
Reporting
Person With 9. Sole Dispositive Power 0
------------------------------------------------
10. Shared Dispositive Power 0 (see Item 5)
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
0
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) |_|
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13. Percent of Class Represented by Amount in Row (11) 0%
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14. Type of Reporting Person (See Instructions) OO
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SCHEDULE 13D
CUSIP No. None
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
Keating Investments, LLC
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) |_|
(b) |_|
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3. SEC Use Only
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4. Source of Funds (See Instructions) OO
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5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d)
or 2(e) |_|
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6. Citizenship or Place of Organization Delaware
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7. Sole Voting Power 0
Number of ----------------------------------------------------
Shares Beneficially
Owned 8. Shared Voting Power 1,767,385 (see Item 5)
By Each ----------------------------------------------------
Reporting
Person With 9. Sole Dispositive Power 0
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10. Shared Dispositive Power 1,767,385 (see Item 5)
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,767,385 (1)
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) o
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13. Percent of Class Represented by Amount in Row (11) 40.81%
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14. Type of Reporting Person (See Instructions) OO
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(1) Represents 1,767,385 shares that are owned directly by Keating Investments,
LLC.
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SCHEDULE 13D
CUSIP No. None
--------------
1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
Timothy J. Keating
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) |_|
(b) |_|
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3. SEC Use Only
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4. Source of Funds (See Instructions) OO
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5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d)
or 2(e) |_|
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6. Citizenship or Place of Organization U.S.A.
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7. Sole Voting Power 0
Number of ----------------------------------------------------
Shares Beneficially
Owned 8. Shared Voting Power 1,767,385 (see Item 5)
By Each ----------------------------------------------------
Reporting
Person With 9. Sole Dispositive Power 0
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10. Shared Dispositive Power 1,767,385 (see Item 5)
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,767,385 (2)
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) o
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13. Percent of Class Represented by Amount in Row (11) 40.81%
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14. Type of Reporting Person (See Instructions) IN
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(2) Represents 1,767,385 shares that are owned by Keating Investments, LLC of
which Timothy J. Keating is the manager.
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This Amendment No. 2 to Schedule 13D amends the Schedule 13D originally
filed with the Securities and Exchange Commission on February 7, 2008 and
subsequently amended by Amendment No.1 filed on January 13, 2009 (as amended,
the "Schedule 13D"). Capitalized terms not otherwise defined herein shall have
the meaning ascribed thereto in the Schedule 13D. This Amendment No. 2 to the
Schedule 13D is being filed solely to disclose the information set forth in Item
6 hereto.
Item 1. Security and Issuer
This Schedule 13D relates to the common stock, par value $0.0001 per share
(the "Common Stock") of Catalyst Lighting Group, Inc., a Delaware corporation,
whose principal executive offices are located at 190 Lakeview Way, Vero Beach,
Florida 32963 (the "Issuer"). The Reporting Persons (as defined hereafter) are
making a joint filing pursuant to SEC Rule 13d-1(k)(1) under the Securities
Exchange Act of 1934, as amended.
Item 2. Identity and Background
This Schedule 13D is being filed by KIG Investors I, LLC, a Delaware
limited liability company ("KIG Investors"), Keating Investments, LLC, a
Delaware limited liability company ("Keating Investments") and Mr. Timothy J.
Keating, a citizen of the United States (together, the "Reporting Persons"). KIG
Investors' principal business, prior to its liquidation and dissolution, was
making and managing investments in public companies and was located at 5251 DTC
Parkway, Suite 1000, Greenwood Village, CO 80111. KIG Investors' business has
been ceased in connection with its liquidation and dissolution approved December
29, 2008. Keating Investments' principal business is providing investment
advisory services and is located at 5251 DTC Parkway, Suite 1000, Greenwood
Village, CO 80111. Timothy J. Keating served as the manager of KIG Investors and
currently serves as the President and manager of Keating Investments and is
located at 5251 DTC Parkway, Suite 1000, Greenwood Village, CO 80111.
Each of the Reporting Persons has not, during the last five years, been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors). Each of the Reporting Persons has not, during the last five
years, been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding were or are subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, Federal or state securities laws
or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
As part of KIG Investors' liquidation and dissolution, on January 9, 2009,
KIG Investors distributed all 2,562,015 shares of the Issuer's common stock held
by it to its members pro rata based on their respective membership interests in
KIG Investors. These shares of the Issuer's common stock were acquired by KIG
Investors on or about September 26, 2007, as a result of the conversion of
certain of the Issuer's preferred shares that were acquired by KIG Investors on
or about September 12, 2007. Keating Investments acquired its membership
interests in KIG Investors for a capital contribution of $110,000 on or about
September 9, 2007. As a member of KIG Investors, on January 9, 2009, Keating
Investments received 1,761,385 shares of the Issuers' common stock in the
liquidation and dissolution of KIG Investors.
Item 4. Purpose of Transaction
Except as otherwise described in this Schedule 13D and the exhibits hereto,
the Reporting Persons acquired and are holding the Issuer's Common Shares for
investment purposes only, and the Reporting Persons are not a member of a group
relating to the Issuer.
Except as otherwise described in this Schedule 13D (including Item 6
hereof) and the exhibits hereto, the Reporting Persons are not aware of any
plans or proposals which would result in the acquisition by any person of
additional securities of Issuer or the disposition of securities of the Issuer;
any extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Issuer or any of its subsidiaries; a sale or transfer
of a material amount of assets of the Issuer or any of its subsidiaries; any
change in the present board of directors or management of the Issuer, including
any place or proposals to change the number or term of directors or to fill any
existing vacancies on the Issuer's Board; any material change in the present
capitalization or dividend policy of the Issuer; any other material change in
the Issuer's business or corporate structure; any changes in Issuer's charter,
bylaws or instruments corresponding thereto or other actions which may impede
the acquisition of control of the Issuer by any person; causing a class of
securities of the Issuer to be delisted from national securities exchange or to
cease to be authorized to be quoted in an inter-dealer quotation system of a
registered national securities association; a class of equity securities of the
Issuer becoming eligible for termination of registration pursuant to section
12(g)(4) of the Act; or any action similar to any of those enumerated above.
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Item 5. Interest in Securities of the Issuer
As part of KIG Investors' liquidation and dissolution, on January 9, 2009,
KIG Investors distributed all 2,562,015 shares of the Issuer's common stock held
by it to its members pro rata based on their respective membership interests in
KIG Investors. Accordingly, as a member of KIG Investors, on January 9, 2009,
Keating Investments received 1,761,385 shares of the Company's common stock in
the liquidation and dissolution of KIG Investors.
Pursuant to Rule 13d-3(a), KIG Investors no longer beneficially owned any
shares of the Issuer's common stock.
Pursuant to Rule 13d-3(a), Keating Investments may be deemed the direct
beneficial owner of 1,767,385 shares of the Common Stock, which constitutes
40.81% of the Issuer's outstanding shares. Keating Investments, either directly
or indirectly, has or shares the power to vote or to direct the vote and to
dispose or to direct the disposition of, such shares of Common Stock.
Pursuant to Rule 13d-3(a), Timothy J. Keating may be deemed to be the
indirect beneficial owner of 1,767,385 shares of the Common Stock, which
constitutes 40.81% of the Issuer's outstanding shares. Timothy J. Keating,
either directly or indirectly, has or shares the power to vote or to direct the
vote and to dispose or to direct the disposition of, such shares of Common
Stock.
Transactions effected in the last 60 days: Except as provided in this
Schedule 13D (including Item 6 hereof), there are none.
Other than as set forth above, none of the Reporting Persons named herein
is the beneficial owner of any shares of the Common Stock.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer
On January 15, 2010, Keating Investments entered into a Stock Purchase
Agreement (the "Purchase Agreement") with Woodman Management Corporation, a
California corporation (the "Purchaser") and certain other parties pursuant to
which, among other things, Keating Investments agreed to sell to the Purchaser,
and the Purchaser agreed to purchase from Keating Investments, an aggregate of
1,767,385 shares of Common Stock for a purchase price of $96,169.49, or
approximately $0.054 per share. Pursuant to the Purchase Agreement, certain
other parties agreed to sell to the Purchaser, and the Purchaser agreed to
purchase from such other parties, an aggregate of 2,094,336 shares of Common
Stock for a purchase price of $113,960.02, or approximately $0.054 per share.
Accordingly, under the Purchase Agreement, the Purchaser has agreed to acquire a
total of 3,861,721 shares of Common Stock representing 89.16% of the outstanding
shares of Common Stock.
In connection with the Purchase Agreement, the Purchaser agreed to assume,
and to pay at the closing of the transactions under the Purchase Agreement
("Closing"), certain obligations of the Company in an aggregate amount of
$30,000 ("Assumed Obligations").
It is anticipated that the closing of the transactions under the Purchase
Agreement (the "Closing") will occur on or about January 29, 2010, assuming all
of the conditions to closing are either met or waived by the parties. There can
be no assurance that the transactions under the Purchase Agreement will actually
be completed. Pursuant to the terms of the Purchase Agreement, at the Closing,
(i) the existing sole director and officer of the Company will resign effective
upon the Closing, (ii) the existing director will appoint the designee of the
Purchaser, Eric P. Stoppenhagen, to serve as the director of the Company, and
(iii) the existing sole director will appoint Mr. Stoppenhagen to serve as the
President, the Chief Financial Officer and Secretary of the Company. As a result
of these transactions, control of the Company will pass to the Purchaser (the
"Change of Control"). Immediately after the Closing, the Reporting Persons will
no longer own any shares of Common Stock.
To the best knowledge of the Reporting Persons as of the date hereof,
except to the extent set forth herein, the Reporting Persons do not have any
other contracts, arrangements, understandings or relationship (legal or
otherwise) with any other Reporting Person or any other person with respect to
any securities of the Issuer.
Item 7. Material to be Filed as Exhibits
Exhibit A: Agreement between the Reporting Persons to file jointly.
Exhibit B: Stock Purchase Agreement, dated January 15, 2010, by and among
Keating Investments, the Purchaser and certain other parties.
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SIGNATURE
After reasonable inquiry and to the best of the undersigned's knowledge and
belief, the undersigned certify that the information set forth in this statement
is true, complete and correct.
Dated: January 19, 2010
KIG INVESTORS I, LLC
By: /s/ Timothy J. Keating
--------------------------
Title: Manager
KEATING INVESTMENTS, LLC
By: /s/ Timothy J. Keating
--------------------------
Title: Manager
/s/ Timothy J. Keating
----------------------
Timothy J. Keating
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Exhibit A
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The undersigned hereby agree as follows:
WHEREAS, the undersigned were and/or may be obligated to file Statements on
Schedule 13D with the United States Securities and Exchange Commission (the
"SEC") to report their beneficial ownership of the Common Stock of Catalyst
Lighting Group, Inc.;
NOW THEREFORE, the undersigned hereby agree that a single Statement on Schedule
13D is to be filed with the SEC on behalf of each of them.
Dated: January 19, 2010
KIG INVESTORS I, LLC
By: /s/ Timothy J. Keating
--------------------------
Title: Manager
KEATING INVESTMENTS, LLC
By: /s/ Timothy J. Keating
--------------------------
Title: Manager
/s/ Timothy J. Keating
Timothy J. Keating
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EXHIBIT B STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of January
15, 2010, is made by and among Keating Investments, LLC, a Delaware limited
liability company ("KI"), Kevin R. Keating ("Keating"), Lionsridge Capital, LLC,
an Illinois limited liability company ("LC"), Garisch Financial, Inc., an
Illinois corporation ("GFI"), and Laurus Master Fund, Ltd., a Cayman Islands
company ("Laurus"), and Woodman Management Corporation, a California corporation
(the "Purchaser"). KI, Keating and LC are referred to herein collectively as the
"Primary Sellers" and individually as a "Primary Seller." The Primary Sellers,
GFI and Laurus are referred to herein collectively as the "Sellers" and
individually as a "Seller."
RECITALS
WHEREAS, KI is the sole record and beneficial owner of 1,767,385 shares
of the common stock, par value $0.0001 per share (the "Common Stock"), of
Catalyst Lighting Group, Inc., a Delaware corporation (the "Company");
WHEREAS, the Purchaser desires to acquire from KI, and KI desires to
sell to the Purchaser, a total of 1,767,385 shares of the Company's Common Stock
(the "KI Shares"), in the manner and on the terms and conditions hereinafter set
forth; and
WHEREAS, Keating is the sole record and beneficial owner of 96,880
shares of the Company's Common Stock; and
WHEREAS, the Purchaser desires to acquire from Keating, and Keating
desires to sell to the Purchaser, a total of 96,880 shares of the Company's
Common Stock (the "Keating Shares"), in the manner and on the terms and
conditions hereinafter set forth; and
WHEREAS, LC is the sole record and beneficial owner of 800,630 shares
of the Company's Common Stock; and
WHEREAS, the Purchaser desires to acquire from LC, and LC desires to
sell to the Purchaser, a total of 800,630 shares of the Company's Common Stock
(the "LC Shares"), in the manner and on the terms and conditions hereinafter set
forth; and
WHEREAS, Laurus is the sole record and beneficial owner of 1,108,172
shares of the Company's Common Stock; and
WHEREAS, the Purchaser desires to acquire from Laurus, and Laurus
desires to sell to the Purchaser, a total of 1,108,172 shares of the Company's
Common Stock (the "Laurus Shares"), in the manner and on the terms and
conditions hereinafter set forth; and
WHEREAS, GFI is the sole record and beneficial owner of 88,654 shares
of the Company's Common Stock; and
WHEREAS, the Purchaser desires to acquire from GFI, and GFI desires to
sell to the Purchaser, a total of 88,654 shares of the Company's Common Stock
(the "GFI Shares"), in the manner and on the terms and conditions hereinafter
set forth; and
WHEREAS, the KI Shares, the Keating Shares, the LC Shares, the Laurus
Shares and the GFI Shares are referred to herein collectively as the "Shares;"
and
1
WHEREAS, the Shares represent 89.16% of the outstanding shares of the
Company's Common Stock; and
WHEREAS, Keating Investments is willing to provide the indemnification
under Section 5.7 hereof; and
WHEREAS, in connection with the Purchaser's purchase of the Shares, the
parties hereto desire to establish certain rights and obligations by and among
themselves.
AGREEMENTS
NOW, THEREFORE, in consideration of these premises, the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION I DEFINITIONS.
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The following terms when used in this Agreement have the following
respective meanings:
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Affiliate" means with respect to any Person, any (i) officer,
director, partner or holder of more than 10% of the outstanding shares or equity
interests of such Person, (ii) any relative of such Person, or (iii) any other
Person which directly or indirectly controls, is controlled by, or is under
common control with such Person. A Person will be deemed to control another
Person if such Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the "Controlled" Person,
whether through ownership of voting securities, by contract, or otherwise.
"Acquisition Proposal" means any offer or proposal for, or indication
of interest in, any acquisition of all or a portion of the Shares or any other
assets or securities of the Company, whether by way of a purchase, merger,
consolidation or other business combination.
"Business Day" means a day other than Saturday, Sunday or statutory
holiday in the State of New York and in the event that any action to be taken
hereunder falls on a day which is not a Business Day, then such action shall be
taken on the next succeeding Business Day.
"Bylaws" mean the Bylaws of the Company.
"Certificate of Incorporation" means the Certificate of Incorporation
of the Company, as amended, and as on file with the Secretary of State of the
State of Delaware on the date of this Agreement.
"Closing Date" has the meaning set forth in Section 3.1 hereof.
"Closing" has the meaning set forth in Section 3.1 hereof.
"Common Stock" has the meaning set forth in the recitals hereto.
"Company" has the meaning set forth in the recitals hereto.
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"Company Closing Obligations" shall have the meaning as used in Section
4.2(j) hereof.
"Corporate Records" shall have the meaning as used in Section 4.2(n)
hereof.
"Encumbrances" shall have the meaning as used in Section 4.1(b) hereof.
"End Date" has the meaning set forth in Section 7.1(b)(i) hereof.
"Fully-Diluted Basis" shall mean the aggregate of all shares of
outstanding Common Stock, all shares of outstanding Preferred Stock on an
as-converted basis, all outstanding options on an as-exercised basis, and all
convertible securities or other conversion rights on an as-converted basis.
"GAAP" means generally accepted accounting principles in the United
States.
"GFI Shares" has the meaning set forth in the recitals hereto.
"Governmental Authority" means the United States, any state or
municipality, the government of any foreign country, any subdivision of any of
the foregoing, or any authority, department, commission, board, bureau, agency,
court, or instrumentality of any of the foregoing.
"Indemnification" shall have the meaning as used in Section 5.7 hereof.
"Information Statement" means the information statement regarding a
change in the majority of directors of the Company pursuant to Rule 14f-1 as
promulgated under the 1934 Act, together with any amendments or supplements
thereof.
"Keating Shares" has the meaning set forth in the recitals hereto.
"KI Shares" has the meaning set forth in the recitals hereto.
"Knowledge" means the actual knowledge of such Person or its
Affiliates.
"Laurus Shares" has the meaning set forth in the recitals hereto.
"LC Shares" has the meaning set forth in the recitals hereto.
"Lien" means any mortgage, lien, pledge, security interest, easement,
conditional sale or other title retention agreement, or other encumbrance of any
kind.
"Material Adverse Effect" means a change or effect in the condition
(financial or otherwise), properties, assets, liabilities, rights or business of
the Company which change or effect, individually or in the aggregate, could
reasonably be expected to be materially adverse to such condition, properties,
assets, liabilities, rights, operations or business.
"Material Changes" shall have the meaning as used in Section 4.2(g)
hereof.
"Minute Books" shall have the meaning as used in Section 4.2(n) hereof.
"OTCBB" has the meaning set forth in Section 4.2(m) hereof.
"Person" means an individual, corporation, limited liability company,
partnership, joint venture, trust, unincorporated organization, or Governmental
Authority.
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"Purchase Price" shall have the meaning as used in Section 2.1 hereof.
"Returns" shall have the meaning as used in Section 4.2(l) hereof.
"SEC" means the Securities and Exchange Commission.
"SEC Filings" means the Company's annual report, quarterly report and
other publicly-available filings made by the Company with the SEC under Section
13 or Section 15(d) of the 1934 Act.
"Shares" shall have the meaning set forth in the recitals hereto.
"Stockholders" mean the record holders of shares of the Company's
Common Stock.
"Tax" or "Taxes" means any and all federal, state, local and foreign
taxes, including, without limitation, gross receipts, income, profits, sales,
use, occupation, value added, ad valorem, transfer, franchise, withholding,
payroll, recapture, employment, excise and property taxes, assessments,
governmental charges and duties together with all interest, penalties and
additions imposed with respect to any such amounts and any obligations under any
agreements or arrangements with any other person with respect to any such
amounts and including any liability of a predecessor entity for any such
amounts.
SECTION II PURCHASE AND SALE OF COMMON STOCK.
----------------------------------
2.1 Purchase of Common Stock. At the Closing, based upon the
representations, warranties, covenants and agreements of the parties set forth
in this Agreement: (i) the Purchaser shall acquire from KI, and KI shall sell to
the Purchaser, the KI Shares; (ii) the Purchaser shall acquire from Keating, and
Keating shall sell to the Purchaser, the Keating Shares; (iii) the Purchaser
shall acquire from LC, and LC shall sell to the Purchaser, the LC Shares; (iv)
the Purchaser shall acquire from Laurus, and Laurus shall sell to the Purchaser,
the Laurus Shares; and (v) the Purchaser shall acquire from GFI, and GFI shall
sell to the Purchaser, the GFI Shares, all for an aggregate purchase price of
Two Hundred Ten Thousand One Hundred Twenty-Nine U.S. Dollars and Fifty-One U.S.
Cents (US$210,129.51) ("Purchase Price"). The Purchase Price per Share is
approximately $0.05441.
2.2 Payment for Common Stock. At the Closing Date, the Purchaser shall
pay the Purchase Price to the Sellers for their respective Shares as follows:
KI US$ 96,169.49
Keating US$ 5,271.57
LC US$ 43,565.03
Laurus US$ 60,299.45
GFI US$ 4,823.97
--------------
Total US$ 210,129.51
==============
2.3 Payment of Certain Company Obligations. As further consideration
for the purchase of the Shares under this Agreement, the Purchaser agrees to
assume, and at Closing shall pay, certain obligations of the Company in an
aggregate amount of $30,000 ("Assumed Obligations"), as more specifically set
forth on Schedule 4.2(j) hereto.
4
2.4 Manner of Payment. At least one (1) business day prior the Closing,
the Purchaser shall deposit by wire transfer of immediately available funds in
the Escrow Account (as defined in Section 5.14) an amount equal to the sum of
the Purchase Price and the Assumed Obligations, less the amount of the Deposit
(as defined in Section 5.14). On the Closing Date, pursuant to the joint written
instructions of the parties hereto, the Escrow Agent (as defined under Section
5.14 hereof) shall disburse the Purchase Price to the Sellers as set forth in
Section 2.2 hereof by wire transfer of immediately available funds to the
accounts designated by the Sellers. On the Closing Date, pursuant to the joint
written instructions of the parties hereto, the Escrow Agent shall disburse the
Assumed Obligations to the designated payees by wire transfer of immediately
available funds to the accounts designated by the payees.
SECTION III THE CLOSING.
------------
3.1 Closing. The closing of the sale of the Shares pursuant to Section
2.1 hereof and certain of the other transactions contemplated hereby (the
"Closing") shall take place at the offices of the Purchaser's counsel located at
15260 Ventura Boulevard 20th Floor, Sherman Oaks, CA 91403 on the next Business
Day (or such later date as the parties hereto may agree) following the
satisfaction or waiver of the conditions set forth in Section VI hereof (the
"Closing Date"), or at such other time or place as the parties mutually agree.
3.2 Deliveries by the Sellers. At the Closing, the Sellers shall
deliver or cause to be delivered to the Purchaser the following items (in
addition to any other items required to be delivered to the Purchaser pursuant
to any other provision of this Agreement):
(a) original certificates representing the Shares being sold by
the Sellers to the Purchaser pursuant to Section 2.1 hereof, duly recorded on
the books of the Company, along with stock powers for such certificates executed
in blank;
(b) a full and complete release by each Seller of the Company
from any and all liabilities, claims and obligations, arising prior to the
Closing, that such Seller may have against the Company, in a form reasonably
acceptable to the Purchaser, provided, however, that Keating shall retain any
statutory or other rights to indemnification provided to him as a result of his
service as an officer and director of the Company;
(c) a full and complete release, executed by both KIG Investors
I, LLC ("KIG") and GFI, of the Company's obligations under that certain
Agreement, dated as of September 13, 2007, by and between Garisch, KIG and the
Company ("GFI Consulting Agreement");
(d) the termination of that certain Agreement, dated as of
October 1, 2007, by and between Vero Management, L.L.C. ("Vero") and the Company
duly executed by Vero, which shall provide for a full and complete release of
any of the Company liabilities and obligations thereunder;
(e) the termination and waiver of Laurus' right to consent to any
future issuance of the Company's securities pursuant to Section 3 (second
paragraph) of that certain Settlement and Release Agreement, dated as of August
22, 2007, by and between Laurus and the Company, duly executed by Laurus;
(f) with respect to any Seller that is organized as a corporation
or limited liability company (other than Laurus), the minutes of a meeting of
the board of directors or managers of such Seller, as the case may be, or a
written consent or action in lieu thereof, authorizing such Seller's entrance
into this Agreement and the transfer of such Seller's Shares to the Purchaser as
contemplated herein; and
5
(g) with respect to Laurus, the written approval of the
liquidation of Laurus authorizing the entrance into this Agreement by Laurus
Capital Management, LLC on behalf of Laurus and the transfer of the Laurus
Shares to the Purchaser as contemplated herein.
3.3 Deliveries by Primary Sellers. At the Closing, the Primary Sellers
shall deliver or cause to be delivered to the Purchaser the following items (in
addition to any other items required to be delivered to the Purchaser pursuant
to any other provision of this Agreement):
(a) resignation of Keating from his position as sole director and
sole officer of the Company;
(b) duly executed corporate actions accepting the resignation
pursuant to Section 3.3(a), appointing Eric Stoppenhagen as the sole director of
the Company and as the President, Chief Financial Officer and Secretary of the
Company;
(c) all records and documents relating to the Company, wherever
located, including, but not limited to, all books, records, government filings,
Tax Returns, consent decrees, orders, and correspondence, financial information
and records, electronic files containing any financial information and records,
and other documents used in or associated with the Company, to the extent such
records and documents have not been previously delivered to the Purchaser; and
(d) a joint instruction letter signed by the Primary Sellers and
addressed to the Escrow Agent directing, at the Closing, the disbursement of the
Purchase Price from the Escrow Account to the Sellers and the payment of the
Assumed Obligations from the Escrow Account to the designated payees.
3.4 Deliveries by the Purchaser. At the Closing, the Purchaser shall
deliver or cause to be delivered to the Sellers (in addition to any other items
required to be delivered to the Sellers pursuant to any other provision of this
Agreement):
(a) a release by the Company of the Sellers from any and all
liabilities, claims and obligations arising prior to the Closing that the
Company may have against the Sellers (the "Company Release"); provided, however,
that the Company Release in favor of KI shall not cover any claims for which the
Purchaser or Company may be indemnified hereunder;
(b) the minutes of a meeting of the Board of Directors of the
Purchaser, or a written consent in lieu thereof, authorizing the Purchaser's
entrance into this Agreement and the purchase of the Shares from the Sellers as
contemplated herein; and
(c) a joint instruction letter signed by the Purchaser and
addressed to the Escrow Agent directing, at the Closing, the disbursement of the
Purchase Price from the Escrow Account to the Sellers and the payment of the
Assumed Obligations from the Escrow Account to the designated payees.
SECTION IV REPRESENTATIONS AND WARRANTIES.
-------------------------------
4.1 Representations and Warranties of the Sellers. Each Seller,
severally, and not jointly with any other Seller, represents and warrants to the
Purchaser, only with respect to the Shares owned by such Seller, that:
6
(a) Capacity of the Seller; Authorization; Execution of
Agreements. Each Seller has all requisite power, authority and capacity to enter
into this Agreement and to perform the transactions and obligations to be
performed by it hereunder. With respect to any Seller that is organized as a
limited liability company or corporation, the execution and delivery of this
Agreement by such Seller, and the performance by such Seller of the transactions
and obligations contemplated hereby, including, without limitation, the sale of
their respective Shares to the Purchaser hereunder, have been duly authorized by
all requisite action of such Seller. This Agreement constitutes a valid and
legally binding agreement of each Seller, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws of the United States (both
state and federal), affecting the enforcement of creditors' rights or remedies
in general from time to time in effect and the exercise by courts of equity
powers or their application of principles of public policy. Except as set forth
in Section 3.2(d) hereof, no corporate proceedings or other action on the part
of any Seller that is organized as a limited liability company or corporation
(including the approval of such Seller's board of directors, managers,
shareholders or members) are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby.
(b) Title to Shares. KI is the sole record and beneficial owner
of the KI Shares and has sole managerial and dispositive authority with respect
to the KI Shares. Keating is the sole record and beneficial owner of the Keating
Shares and has sole managerial and dispositive authority with respect to the
Keating Shares. LC is the sole record and beneficial owner of the LC Shares and
has sole managerial and dispositive authority with respect to the LC Shares.
Laurus is the sole record and beneficial owner of the Laurus Shares and has sole
managerial and dispositive authority with respect to the Laurus Shares. GFI is
the sole record and beneficial owner of the GFI Shares and has sole managerial
and dispositive authority with respect to the GFI Shares. No Seller has granted
any person a proxy with respect to the Shares owned by such Seller that has not
expired or been validly withdrawn. The sale and delivery by the Sellers of the
Shares to the Purchaser pursuant to this Agreement will vest in the Purchaser
legal and valid title to the Shares, free and clear of all Liens, security
interests, adverse claims or other encumbrances of any character whatsoever,
other than encumbrances created by the Purchaser and restrictions on the resale
of the Shares under applicable securities laws ("Encumbrances").
(c) Brokers, Finders, and Agents. No Seller is, directly or
indirectly, obligated to anyone acting as broker, finder or in any other similar
capacity in connection with this Agreement or the transactions contemplated
hereby. No Person has or, immediately following the consummation of the
transactions contemplated by this Agreement, will have, any right, interest or
valid claim against the Company, the Sellers or the Purchaser for any
commission, fee or other compensation as a finder or broker in connection with
the transactions contemplated by this Agreement, nor are there any brokers' or
finders' fees or any payments or promises of payment of similar nature, however
characterized, that have been paid or that are or may become payable in
connection with the transactions contemplated by this Agreement, as a result of
any agreement or arrangement made by the Sellers.
(d) Disclosure. Each Seller acknowledges and agrees that the
Purchaser does not make and has not made (i) any representations or warranties
with respect to the transactions contemplated hereby other than those
specifically set forth in Section 4.3, or (ii) any statement, commitment or
promise to the Sellers or any of their representatives which is or was an
inducement to the Sellers to enter into this Agreement, other than as set forth
in this Agreement.
4.2 Representations and Warranties of the Primary Sellers. Subject to
the limitations and qualifications contained in Section 4.2(p) hereof, the
Primary Sellers jointly and severally represent and warrant to the Purchaser,
with respect to the Company, that:
7
(a) Organization and Standing. The Company is duly incorporated
and validly existing under the laws of the State of Delaware, and has all
requisite corporate power and authority to own or lease its properties and
assets and to conduct its business as it is presently being conducted. The
Company does not own any equity interest, directly or indirectly, in any other
Person or business enterprise. The Company is qualified to do business and is in
good standing in each jurisdiction in which the failure to so qualify could
reasonably be expected to have a Material Adverse Effect upon its assets,
properties, financial condition, results of operations or business. The Company
has no subsidiaries. Except as set forth in Section 3.3(b) hereof, no corporate
proceedings on the part of the Company (including the approval of the Company's
Board of Directors or shareholders) are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby.
(b) Capitalization. At the date of this Agreement, the authorized
capital stock of the Company consists of (i) 200,000,000 shares of Common Stock,
of which 4,331,131 shares are issued and outstanding, and (ii) 10,000,000 shares
of preferred stock, par value of $0.0001 per share ("Preferred Stock"), of which
no shares are issued and outstanding. The Company has no other class or series
of equity securities authorized, issued, reserved for issuance or outstanding.
There are (x) no outstanding options, offers, warrants, conversion rights,
contracts or other rights to subscribe for or to purchase from the Company, or
agreements obligating the Company to issue, transfer, or sell (whether formal or
informal, written or oral, firm or contingent), shares of capital stock or other
securities of the Company (whether debt, equity, or a combination thereof) or
obligating the Company to grant, extend, or enter into any such agreement and
(y) no agreements or other understandings (whether formal or informal, written
or oral, firm or contingent) which require or may require the Company to
repurchase any of its Common Stock. There are no preemptive or similar rights
granted by the Company with respect to the Company's capital stock. There are no
anti-dilution or price adjustment provisions contained in any security issued by
the Company. Except as set forth on Schedule 4.2(b) hereto, the Company is not a
party to, and, to the Knowledge of the Primary Sellers, without inquiry, no
Stockholder is a party to, any registration rights agreements, voting
agreements, voting trusts, proxies or any other agreements, instruments or
understandings with respect to the voting of any shares of the capital stock of
the Company, or any agreement with respect to the transferability, purchase or
redemption of any shares of the capital stock of the Company. The sale of the
Shares to the Purchaser does not obligate the Company to issue any shares of
capital stock or other securities to any Person (other than the Purchaser) and
will not result in a right of any holder of Company securities, by agreement
with the Company, to adjust the exercise, conversion, exchange or reset price
under such securities. The outstanding Common Stock is all duly and validly
authorized and issued, fully paid and nonassessable. The Primary Sellers will
cause the Company not to issue, or resolve or agree to issue, any securities to
any party, other than the Purchaser, prior to the Closing. The Shares represent
89.16% of the outstanding Common Stock of the Company, on a Fully-Diluted Basis.
(c) Status of Shares. The Shares (i) have been duly authorized,
validly issued, fully paid and are nonassessable, and will be such at the
Closing, (ii) were issued in compliance with all applicable United States
federal and state securities laws, and will be in compliance with such laws at
the Closing, (iii) subject to restrictions under this Agreement, and applicable
United States federal and state securities laws, have the rights and preferences
set forth in the Certificate of Incorporation, as amended, and will have such
rights and preferences at the Closing, and (iv) are free and clear of all
Encumbrances and will be free and clear of all Encumbrances at the Closing
(other than Encumbrances created by the Seller or Purchaser and restrictions on
the resale of the Shares under applicable securities laws).
(d) Conflicts; Defaults. The execution and delivery of this
Agreement by the Sellers and the performance by the Sellers of the transactions
and obligations contemplated hereby and thereby to be performed by it do not (i)
violate, conflict with, or constitute a default under any of the terms or
provisions of, the Certificate of Incorporation, as amended, the Bylaws, or any
8
provisions of, or result in the acceleration of any obligation under, any
contract, note, debt instrument, security agreement or other instrument to which
the Company is a party or by which the Company, or any of the Company's assets,
is bound; (ii) result in the creation or imposition of any Encumbrances or
claims upon the Company's assets or upon any of the shares of capital stock of
the Company; (iii) constitute a violation of any law, statute, judgment, decree,
order, rule, or regulation of a Governmental Authority applicable to the
Company; or (iv) constitute an event which, after notice or lapse of time or
both, would result in any of the foregoing.
(e) Securities Laws. The Company has complied in all material
respects with applicable federal securities laws, rules and regulations,
including the Sarbanes-Oxley Act of 2002, as amended, as such laws, rules and
regulations apply to the Company and its securities. All shares of capital stock
of the Company have been issued in accordance with applicable federal securities
laws, rules and regulations. There are no stop orders in effect with respect to
any securities of the Company that have been communicated to the Company's
transfer agent.
(f) SEC Filings. The SEC Filings, when filed, complied in all
material respects with the requirements of Section 13 or Section 15(d) of the
1934 Act, as such sections were applicable as of the dates when filed, and did
not, as of the dates when filed, contain an untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading. The financial statements of the Company
included in the SEC Filings complied in all material respects with the rules and
regulations of the SEC with respect thereto as in effect at the time of filing.
Such financial statements were prepared in accordance with GAAP applied on a
consistent basis during the periods covered by such financial statements, except
as may be otherwise specified in such financial statements or the notes thereto,
and fairly present in all material respects the financial position of the
Company as of and for the dates thereof and for the periods indicated, and the
results of operations and cash flows for the periods then ended, subject, in the
case of unaudited statements, to normal, immaterial, year-end audit adjustments.
All material agreements to which the Company is a party or to which the property
or assets of the Company are subject and which are required to be disclosed
pursuant to the 1934 Act are included as part of or specifically identified in
the SEC Filings.
(g) Material Changes. Since the date of the latest audited
financial statements included within the SEC Filings, except as specifically
disclosed in the SEC Filings, (i) there has been no event that could result in a
Material Adverse Effect, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of the business of a shell corporation
consistent with past practice, and (B) liabilities not required to be reflected
in the Company's financial statements pursuant to GAAP as required to be
disclosed in filings made with the SEC, (iii) the Company has not altered its
method of accounting or the identity of its auditors, except as disclosed in its
SEC Filings, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock, and (v) the Company has not issued any equity securities ("Material
Changes").
(h) Absence of Litigation. There is no action, suit, claim,
proceeding, inquiry or investigation before or by any court, public board,
government agency, self-regulatory organization or body pending or threatened in
writing against or affecting the Company.
(i) Brokers, Finders, and Agents. The Company is not, directly or
indirectly, obligated to anyone acting as broker, finder or in any other similar
capacity in connection with this Agreement or the transactions contemplated
hereby. No Person has or, immediately following the consummation of the
transactions contemplated by this Agreement, will have, any right, interest or
valid claim against the Company, the Sellers or the Purchaser for any
commission, fee or other compensation as a finder or broker in connection with
the transactions contemplated by this Agreement, nor are there any brokers' or
9
finders' fees or any payments or promises of payment of similar nature, however
characterized, that have been paid or that are or may become payable in
connection with the transactions contemplated by this Agreement, as a result of
any agreement or arrangement made by the Company. Notwithstanding the foregoing,
the Assumed Obligations to be paid by the Purchaser at Closing (as specifically
set forth on Schedule 4.2(j) hereof) are payable to certain payees that have
provided consulting services to the Company in connection with the transactions
contemplated hereunder.
(j) Absence of Businesses and Liabilities. The Company is not
engaged in any business and is currently a "shell company" as defined under SEC
rules. The Company has no liabilities or obligations of any kind or nature,
except as set forth on: (i) Schedule 4.2(j) hereto, as may be updated and
supplemented by the Primary Sellers at any time prior to the Closing ("Company
Closing Obligations"), and (ii) the other schedules to this Agreement. As of the
date of this Agreement, the Company's only assets consist of cash and cash
equivalents and, at Closing, the Company shall have no assets.
(k) No Agreements. Except as set forth on Schedule 4.2(k) hereto,
the Company is not a party to any agreement, commitment or instrument, whether
oral or written, which imposes any obligations or liabilities on the Company
after the Closing.
(l) Taxes.
(i) The Company has timely filed all federal, state, local
and foreign returns, estimates, information statements and reports relating to
Taxes ("Returns") required to be filed by the Company with any Tax authority
prior to the date hereof, except such Returns which are not material to the
Company. All such Returns are true, correct and complete and the Company has no
basis to believe that any audit of the Returns would cause a Material Adverse
Effect upon the Company or its financial condition. The Company has paid all
Taxes shown to be due on such Returns.
(ii) All Taxes that the Company is required by law to
withhold or collect have been duly withheld or collected, and have been timely
paid over to the proper governmental authorities to the extent due and payable.
(iii) The Company has no material Tax deficiency
outstanding, proposed or assessed against the Company, and the Company has not
executed any unexpired waiver of any statute of limitations on or extending the
period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Returns of the
Company by any Tax authority is known by the Company to be presently in
progress, nor has the Company been notified of any request for such an audit or
other examination.
(v) No adjustment relating to any Returns filed by the
Company has been proposed in writing, formally or informally, by any Tax
authority to the Company or any representative thereof.
(vi) The Company has no liability for any Taxes for its
current fiscal year, whether or not such Taxes are currently due and payable.
(m) OTC Bulletin Board Quotation. The Common Stock is quoted on
the Over-the-Counter Bulletin Board (the "OTCBB"). There is no known action or
known proceeding pending or threatened in writing against the Company by the
Nasdaq or the Financial Industry Regulatory Authority with respect to any
intention by such entities to prohibit or terminate the quotation of the Common
Stock on the OTCBB.
10
(n) Corporate Records. All records and documents relating to the
Company known to the Primary Sellers, including, but not limited to, the books,
shareholder lists, government filings, Tax Returns, consent decrees, orders, and
correspondence, financial information and records (including any electronic
files containing any financial information and records), and other documents
used in or associated with the Company (the "Corporate Records") are true,
complete and accurate in all material respects. The minute books of the Company
known to the Primary Sellers contain true, complete and accurate records of all
meetings and consents in lieu of meetings of the Board of Directors of the
Company (and any committees thereof), similar governing bodies and shareholders
(the "Minute Books"). Copies of such Corporate Records of the Company and the
Minute Books currently in the possession of the Company, have been heretofore
delivered to the Purchaser; the original Corporate Records and Minute Books, to
the extent such original Corporate Records and Minute Books exist, will be
delivered to the Purchaser at Closing pursuant to Section 3.3(c).
(o) Disclosure. Each Primary Seller acknowledges and agrees that
the representations and warranties by such Primary Seller in this Section 4.2
are true and complete in all material respects and do not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements contained therein not
misleading, under the circumstance under which they were made.
(p) Knowledge Qualification. All representations and warranties
by the Primary Sellers contained in this Section 4.2 are hereby qualified and
limited by, and are hereby made subject to, the Knowledge of the Primary Sellers
to the extent such representations and warranties cover or relate to
liabilities, obligations, claims, losses, expenses, damages, actions, liens and
deficiencies of the Company or its Affiliates due to or arising out of actions
or inactions of the Company or its Affiliates taken prior to August 23, 2007;
provided, however, the Primary Sellers had used commercially reasonable efforts
in obtaining such Knowledge.
4.3 Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Sellers that:
(a) Organization and Standing. The Purchaser is duly incorporated
and validly existing under the laws of the State of California, and has all
requisite corporate power and authority to own or lease its properties and
assets and to conduct its business as it is presently being conducted. The
Purchaser is qualified to do business and is in good standing in each
jurisdiction in which the failure to so qualify could reasonably be expected to
have a Material Adverse Effect upon its assets, properties, financial condition,
results of operations or business. Except as set forth in Section 3.4(c) hereof,
no corporate proceedings on the part of the Purchaser (including the approval of
the Purchaser's Board of Directors or shareholders) are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby.
(b) Capacity of the Purchaser; Authorization; Execution of
Agreements. The Purchaser has all requisite power, authority and capacity to
enter into this Agreement and to perform the transactions and obligations to be
performed by it hereunder. The execution and delivery of this Agreement by the
Purchaser, and the performance by the Purchaser of the transactions and
obligations contemplated hereby, including, without limitation, the purchase of
the Shares from the Sellers hereunder, have been duly authorized by all
requisite corporate action of the Purchaser. This Agreement constitutes a valid
and legally binding agreement of the Purchaser, enforceable in accordance with
11
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws of the United
States (both state and federal), affecting the enforcement of creditors' rights
or remedies in general from time to time in effect and the exercise by courts of
equity powers or their application of principles of public policy.
(c) Investment Intent. The Shares being purchased hereunder by
the Purchaser are being purchased for its own account and are not being
purchased with the view to, or for resale in connection with, any distribution
or public offering thereof within the meaning of the 1933 Act. The Purchaser
understands that such Shares have not been registered under the 1933 Act by
reason of their issuance in a transaction exempt from the registration and
prospectus delivery requirements of the 1933 Act pursuant to Section 4(2)
thereof, the provisions of Rule 506 of Regulation D promulgated thereunder,
and/or such other available exemption from registration, and under the
securities laws of applicable states and agrees to deliver to the Sellers, if
requested by the Sellers, an investment letter in customary form. The Purchaser
further understands that the certificates representing such Shares shall bear a
legend substantially similar to the following and agrees that it will hold such
Shares subject thereto:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
PORTION HEREOF OR INTEREST HEREIN MAY BE SOLD, ASSIGNED,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS THE SAME
IS REGISTERED UNDER SAID ACTS AND APPLICABLE STATE SECURITIES
LAWS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE AND THE COMPANY SHALL HAVE RECEIVED, AT THE EXPENSE
OF THE HOLDER HEREOF, EVIDENCE OF SUCH EXEMPTION REASONABLY
SATISFACTORY TO THE COMPANY (WHICH MAY INCLUDE, AMONG OTHER
THINGS, AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY).
(d) Accredited Investor. The Purchaser, and each of the
stockholders of the Purchaser, is an "accredited investor" as defined in Rule
501(a) of Regulation D promulgated under the 1933 Act.
(e) Suitability and Sophistication. The Purchaser, and each of
the stockholders of the Purchaser, has (i) such knowledge and experience in
financial and business matters that it is capable of independently evaluating
the risks and merits of purchasing the Shares it is purchasing; (ii)
independently evaluated the risks and merits of purchasing such Shares and has
independently determined that the Shares are a suitable investment for it; and
(iii) sufficient financial resources to bear the loss of its entire investment
in such Shares. The Purchaser has had an opportunity to review the SEC Filings
of the Company.
(f) Brokers, Finders, and Agents. The Purchaser is not, directly
or indirectly, obligated to anyone acting as broker, finder, or in any other
similar capacity in connection with this Agreement or the transactions
contemplated hereby. No Person has or, immediately following the consummation of
the transactions contemplated by this Agreement, will have, any right, interest
or valid claim against the Company, the Sellers or the Purchaser for any
commission, fee or other compensation as a finder or broker in connection with
the transactions contemplated by this Agreement, nor are there any brokers' or
finders' fees or any payments or promises of payment of similar nature, however
characterized, that have been paid or that are or may become payable in
connection with the transactions contemplated by this Agreement, as a result of
any agreement or arrangement made by the Purchaser.
(g) Disclosure. The Purchaser acknowledges and agrees that the
representations and warranties by the Purchaser in this Section 4.3 are true and
complete in all material respects and do not contain any untrue statement of a
12
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements contained therein not misleading, under the
circumstance under which they were made. The Purchaser acknowledges and agrees
that the Sellers do not make and have not made (i) any representations or
warranties with respect to the transactions contemplated hereby other than those
specifically set forth in Sections 4.1 and 4.2, or (ii) any statement,
commitment or promise to the Purchaser or any of its representatives which is or
was an inducement to the Purchaser to enter into this Agreement, other than as
set forth in this Agreement.
4.4 Rule 144. The Purchaser acknowledges that the Shares it will be
purchasing must be held indefinitely unless subsequently registered under the
1933 Act or unless an exemption from such registration is available. The
Purchaser is aware of the provisions of Rule 144 promulgated under the 1933 Act
which permit limited resale of shares purchased in a private placement subject
to the satisfaction of certain conditions, including, among other things, the
availability of certain current public information about the Company, the resale
occurring not less than six months after a party has purchased and paid for the
security to be sold, the sale being effected through a "broker's transaction" or
in transactions directly with a "market maker" and the number of shares being
sold during any three-month period not exceeding specified limitations. The
Purchaser further acknowledges and agrees that: (i) the Company is currently a
"shell company" as defined under SEC rules, (ii) the Shares being acquired by
the Purchaser were originally issued by the Company to the Sellers when the
Company was a "shell company," and (iii) the resale of the Shares are subject to
the satisfaction of additional conditions and requirements under Rule 144(i)(2)
applicable to the shares of "shell companies" and "former shell companies."
SECTION V COVENANTS OF THE PARTIES.
-------------------------
5.1 Commercially Reasonable Efforts. Subject to the terms and
conditions hereof, each party shall use commercially reasonable efforts to take,
or cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement as promptly as
practicable after the date hereof, including (i) preparing and filing as
promptly as practicable all documentation to effect all necessary SEC filings
and other documents and to obtain as promptly as practicable all consents,
waivers, licenses, orders, registrations, approvals, permits and authorizations
necessary or advisable to be obtained from any Person and/or any Governmental
Authority in order to consummate any of the transactions contemplated by this
Agreement, (ii) executing and delivering such other documents, instruments and
agreements as any party hereto shall reasonably request, and (iii) taking all
reasonable steps as may be necessary to obtain all such material consents,
waivers, licenses, orders, registrations, approvals, permits and authorizations.
Notwithstanding the foregoing, in no event shall any party have any obligation,
in order to consummate the transactions contemplated hereby, to: (i) take any
action(s) that would result in Material Adverse Changes in the benefits to the
Sellers on the one hand or to the Purchaser on the other of this Agreement, or
(ii) dispose of any material assets or make any material change in its business
other than as contemplated by this Agreement, or (iii) expend any material
amount of funds or otherwise incur any material burden other than those
contemplated by this Agreement.
5.2 Certain Filings; Cooperation in Receipt of Consents.
(a) The Primary Sellers and the Purchaser shall reasonably
cooperate with one another in (i) determining whether any other action by or in
respect of, or filing with, any Governmental Authority is required, or any
actions, consents, approvals or waivers are required to be obtained from parties
to any material contracts, in connection with the consummation of the
transactions contemplated hereby, and (ii) taking or seeking any such other
actions, consents, approvals or waivers or making any such filings, furnishing
13
information required in connection therewith. Each party shall permit the other
party to review any communication given by it to, and shall consult with each
other in advance of any meeting or conference with, any Governmental Authority
or, in connection with any proceeding by a private party, with any other Person,
and to the extent permitted by the applicable Governmental Authority or other
Person, give the other party the opportunity to attend and participate in such
meetings and conferences, in each case in connection with the transactions
contemplated hereby.
(b) The Primary Sellers shall use their commercially reasonable
efforts to cause the Company to timely file all reports required to be filed by
it pursuant to Section 13 of the 1934 Act and all other documents required to be
filed by it with the SEC under the 1933 Act or the 1934 Act from the date of
this Agreement to the Closing; provided, however, that the Purchaser shall cause
the Company to file the Post-Closing 8-K as set forth in Section 5.10 hereof.
5.3 Public Announcements. The parties shall consult with each other
before issuing, and provide each other a reasonable opportunity to review and
comment upon, any press release or public statement with respect to this
Agreement and the transactions contemplated hereby and, except as may be
required by applicable law, shall not issue any such press release or make any
such public statement prior to such consultation.
5.4 Access to Information; Notification of Certain Matters.
(a) From the date hereof to the Closing and subject to applicable
law, the Primary Sellers shall (i) give to the Purchaser or its counsel
reasonable access to the books and records of the Company, and (ii) furnish or
make available to the Purchaser and its counsel such financial and operating
data and other information about the Company as such Persons may reasonably
request.
(b) Each party hereto shall give notice to each other party
hereto, as promptly as practicable after the event giving rise to the
requirement of such notice, of:
(i) any communication received by such party from, or given
by such party to, any Governmental Authority in connection with any of the
transactions contemplated hereby;
(ii) any notice or other communication from any Person
alleging that the consent of such Person is or may be required in connection
with the transactions contemplated by this Agreement; and
(iii) any actions, suits, claims, investigations or
proceedings commenced or, to its Knowledge, threatened against, relating to or
involving or otherwise affecting such party or any of its Affiliates that, if
pending on the date of this Agreement, would have been required to have been
disclosed, or that relate to the consummation of the transactions contemplated
by this Agreement; provided, however, that the delivery of any notice pursuant
to this Section 5.4(b) shall not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
5.5 Board of Directors and Officers. The Primary Sellers shall cause
the Company to appoint Eric Stoppenhagen as the sole director of the Company and
as the President, Chief Financial Officer and Secretary of the Company at the
Closing and obtain any necessary resignations from the Company's current
directors and officers effective as of the Closing.
5.6 Interim Operations of the Company. During the period from the date
of this Agreement to the Closing, the Primary Sellers shall cause the Company to
conduct its business only in the ordinary course of business consistent with
past practice, except to the extent otherwise necessary to comply with the
provisions hereof and with applicable laws and regulations. Additionally, during
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the period from the date of this Agreement to the Closing, except as required
hereby in connection with this Agreement, the Primary Sellers shall not permit
the Company to do any of the following without the prior consent of the
Purchaser: (i) amend or otherwise change its Certificate of Incorporation or
Bylaws, (ii) issue, sell or authorize for issuance or sale (including, but not
limited to, by way of stock split or dividend), shares of any class of its
securities or enter into any agreements or commitments of any character
obligating it to issue such securities, other than in connection with the
exercise of outstanding warrants or outstanding stock options granted to
directors, officers or employees of the Company prior to the date of this
Agreement; (iii) declare, set aside, make or pay any dividend or other
distribution (whether in cash, stock or property) with respect to its common
stock, (iv) redeem, purchase or otherwise acquire, directly or indirectly, any
of its capital stock, (v) enter into any material contract or agreement or
material transaction or make any material capital expenditure other than those
relating to the transactions contemplated by this Agreement, (vi) create, incur,
assume, maintain or permit to exist any indebtedness except as otherwise
incurred in the ordinary course of business, consistent with past practice, or
except for the Company Closing Obligations, (vii) pay, discharge or satisfy
claims or liabilities (absolute, accrued, contingent or otherwise) other than in
the ordinary course of business consistent with past practice, or except for the
Company Closing Obligations, (viii) cancel any material debts or waive any
material claims or rights, (ix) make any loans, advances or capital
contributions to, or investments in financial instruments of any Person, (x)
assume, guarantee, endorse or otherwise become responsible for the liabilities
or other commitments of any other Person, (xi) alter in any material way the
manner of keeping the books, accounts or records of the Company or the
accounting practices therein reflected other than alterations or changes
required by GAAP or applicable law, (xii) enter into any indemnification,
contribution or similar contract pursuant to which the Company may be required
to indemnify any other Person or make contributions to any other Person, (xiii)
amend or terminate any existing contracts in any manner that would result in any
material liability to the Company for or on account of such amendment or
termination, or (xiv) change any existing or adopt any new tax accounting
principle, method of accounting or tax election except as provided herein or
agreed to in writing by the Purchaser.
5.7 Indemnification. KI hereby agrees to indemnify and hold harmless
the Purchaser and the Company (the "Indemnified Parties") from and against any
and all liabilities, obligations, claims, losses, expenses, damages, actions,
liens and deficiencies (including reasonable attorneys' fees) which exist, or
which may be imposed on, incurred by or asserted against the Indemnified Parties
due to or arising out of any breach or inaccuracy of any representation or
warranty of any Primary Seller under Section 4.2 hereof, or any covenant,
agreement or obligation of any Primary Seller hereunder or in any other
certificate, instrument or document contemplated hereby or thereby ("Damages"),
for a period of six (6) months from the Closing Date (the "Indemnification," and
the period herein is referred to as the "Indemnification Period"). KI shall not
be obligated to pay to the Indemnified Parties any amounts for Indemnification
for Damages in excess of US$50,000 ("Cap"). KI shall not be obligated to make
any payment for Indemnification in respect of any claims for Damages that are
made by the Indemnified Parties after the expiration of the Indemnification
Period; provided, however, that the obligations of KI under the Indemnification
shall remain in full force and effect, subject to the Cap, in respect of any
claims for Damages which are made prior to, and remain pending at, the
expiration of the Indemnification Period. In addition, KI covenants that it
shall have no liquidation, dissolution, winding up or any other similar action
of itself within the Indemnification Period. For the abundance of clarity,
Lionsridge, Keating, Laurus and GFI are not responsible for any indemnification
to the Indemnified Parties for any Damages. The indemnification provided by this
Section 5.7 shall be the sole remedy of the Indemnified Parties for any Damages;
provided, however, that no remedies of the Indemnified Parties for any breach by
any of the Sellers of the representations and warranties contained in Section
4.1 shall be limited in any way by this Section 5.7.
5.8 Information Statement. The Primary Sellers shall cause the Company
to file the Information Statement with the SEC, and to mail the Information
Statement to its Stockholders, within two (2) Business Days after the execution
and delivery of this Agreement by the parties. The Information Statement shall
be prepared by the Company, and prior to filing with the SEC, shall be subject
to the Purchaser's review and comment.
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5.9 Stockholder Filings. The Purchaser and the Primary Sellers shall,
at their own cost and expense, make any stockholder filings with the SEC to the
extent, and in the time period, required by SEC rules as a result of the
transactions contemplated by this Agreement.
5.10 Post-Closing 8-K. Following the Closing, the Purchaser shall, at
its own cost and expense, cause the Company to timely file a Current Report on
Form 8-K with the SEC disclosing the change of control of the Company and the
purchase of the Shares contemplated hereunder and any other information required
in connection therewith ("Post-Closing 8-K").
5.11 Assignment of Registration Rights. Effective as of the Closing,
each of the Sellers hereby assigns and transfers to the Purchaser all of its
rights under those certain Registration Rights Agreements to which each Seller
is party as listed on Schedule 4.2(b), with respect to the Shares being sold to
the Purchaser hereunder, and the Purchaser hereby accepts such assignment. The
Purchaser shall become, and is hereby made, a party to each such Registration
Rights Agreement as a Holder (as such term is defined in the Registration Rights
Agreement) and shall, and hereby agrees to, be bound by all of the terms and
conditions set forth in the Registration Rights Agreement applicable to it as a
Holder, with respect to the Shares being acquired by it hereunder.
5.12 Interim Actions of the Parties.
(a) Until the earlier of the Closing Date or the termination of
this Agreement pursuant to Section VII hereof, neither the Sellers nor any of
their respective Affiliates shall, directly or indirectly (i) take any action to
solicit or initiate any Acquisition Proposal, or (ii) continue, initiate or
engage in negotiations concerning any Acquisition Proposal with, or disclose any
non-public information relating to the Company, or afford access to the
properties, books or records of the Company to, any corporation, partnership,
person or other entity (except the Purchaser and its Affiliates) that may be
considering or has made an Acquisition Proposal.
(b) Until the earlier of the Closing Date or the termination of
this Agreement pursuant to Section VII hereof, neither the Purchaser nor any of
its Affiliates shall, directly or indirectly, take any action to solicit or
pursue new offers or continue negotiations with or from any person other than
the Primary Sellers concerning the acquisition of a controlling interest in a
public shell company.
(c) Until the earlier of the Closing Date or the termination of
this Agreement pursuant to Section VII hereof, neither the Sellers, the
Purchaser, nor any of their respective Affiliates shall engage directly or
indirectly in any transaction involving any of the securities of the Company
other than as contemplated by this Agreement.
5.13 Payment of Liabilities. Prior to or at the Closing, KI shall pay,
or shall cause the Company to pay, in full each of the Company Closing
Obligations, as well as any additional liabilities or obligations incurred by
the Company since the date of this Agreement, including any and all liabilities
or obligations incurred by the Company in connection with the transactions
contemplated by this Agreement; provided, however, that the Assumed Obligations
shall be paid by the Purchaser at the Closing pursuant to Section 2.3 hereof.
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5.14 Deposit. The Purchaser and the Primary Sellers acknowledge that
$25,000 ("Deposit") was deposited into an escrow account ("Escrow Account") by
the Purchaser pursuant to an Escrow Agreement between the Purchaser, the Primary
Sellers and Escrow, LLC ("Escrow Agent") dated December 18, 2009. The Deposit
shall be disbursed from the Escrow Account and paid: (i) to the Primary Sellers,
if the transactions contemplated by this Agreement fail to close due to a
material breach of any representation, warranty, covenant, agreement or
obligation of the Purchaser hereunder or in any other certificate, instrument or
document contemplated hereby or thereby by the Purchaser ("Purchaser's Breach"),
(ii) to the Purchaser, if the transactions contemplated by this Agreement fail
to close for any reason other than the Purchaser's Breach, or (iii) to the
Sellers as partial payment of the Purchase Price, if the transactions
contemplated by this Agreement close. The Deposit shall be held and disbursed
pursuant to the terms of the Escrow Agreement and this Agreement, and the
Purchase Price shall be held and disbursed pursuant to the terms of the Escrow
Agreement, this Agreement and the joint instruction letter delivered by the
parties under Sections 3.3(e) and 3.4(d) hereof.
SECTION VI CONDITIONS.
-----------
6.1 Conditions to the Obligations of Each Party. The obligations of the
Sellers and the Purchaser to consummate the transactions contemplated by this
Agreement are subject to the satisfaction of the following conditions:
(a) No Governmental Authority of competent authority or
jurisdiction shall have issued any order, injunction or decree, or taken any
other action, that is in effect and restrains, enjoins or otherwise prohibits
the consummation of the transactions contemplated hereby; and
(b) The parties shall have obtained or made all consents,
approvals, actions, orders, authorizations, registrations, declarations,
announcements and filings contemplated by this Agreement.
6.2 Conditions to the Obligations of the Sellers. The obligations of
the Sellers to consummate the transactions contemplated by this Agreement are
subject to the satisfaction of the following further conditions:
(a) The Purchaser shall have performed in all material respects
all of its obligations hereunder required to be performed by it at or prior to
the Closing;
(b) The representations and warranties of the Purchaser contained
in this Agreement shall have been true and correct when made and in all material
respects at and as of the time of the Closing as if made at and as of such time
(except to the extent any such representation or warranty expressly speaks as of
an earlier date, in which case it shall be true and correct as of such date);
(c) The Sellers shall have received a certificate signed by the
Purchaser to the foregoing effect; and
(d) The Purchaser shall have delivered to the Primary Sellers
written instruments, in forms reasonably satisfactory to the Primary Sellers,
evidencing the Purchaser's deposit into the Escrow Account, by wire transfer of
immediately available funds at least one (1) business day prior to the Closing,
all funds necessary to satisfy the Purchaser's obligations to the Sellers under
Section 2.2 hereof and to those certain payees under the Assumed Obligations
under Section 2.3.
6.3 Conditions to the Obligations of the Purchaser. The obligations of
the Purchaser to consummate the transactions contemplated by this Agreement are
subject to the satisfaction of the following further conditions:
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(a) The Sellers shall have performed in all material respects all
of their obligations hereunder required to be performed by them at or prior to
the Closing;
(b) At least ten (10) days have expired since the filing of the
Information Statement with the SEC, and any comments received from the SEC
during such ten (10) day period have been responded to, or otherwise handled, to
the mutual satisfaction of the Primary Sellers and the Purchaser.
(c) The representations and warranties of each Seller contained
in this Agreement shall have been true and correct when made and at and as of
the time of the Closing as if made at and as of such time (except to the extent
any such representation or warranty expressly speaks as of an earlier date, in
which case it shall be true and correct as of such date);
(d) The Purchaser shall have received a certificate signed by
each Seller to the foregoing effect;
(e) The Shares being sold to the Purchaser hereunder for the
Purchase Price shall represent 89.16% of the issued and outstanding shares of
the Company's Common Stock on a Fully-Diluted Basis;
(f) The Primary Sellers shall have delivered to the Purchaser
written instruments, in forms reasonably satisfactory to the Purchaser,
evidencing the payment of the Company Closing Obligations, subject to the
provisions of this Agreement, as well as any additional liabilities or
obligations incurred by the Company since the date of this Agreement, including
any and all liabilities or obligations incurred by the Company in connection
with the transactions contemplated by this Agreement (other than the Assumed
Obligations).
SECTION VII TERMINATION.
------------
7.1 Termination. This Agreement may be terminated at any time prior to
the Closing by written notice by the terminating party to the other party
(except if such termination is pursuant to Section 7.1(a)):
(a) by mutual written agreement of the Purchaser and all of the
Sellers;
(b) by either the Purchaser or by all of the Sellers, if
(i) the transactions contemplated by this Agreement shall
not have been consummated by February 5, 2010 (the "End Date"); provided,
however, that this date will be automatically extended by the number of days
reasonably needed for the Company, the Purchaser and the Primary Sellers to
review and respond to any SEC comment letters sent to the Company in respect of
the Information Statement; provided further, however, that the right to
terminate this Agreement under this Section 7.1(b)(i) shall not be available to
any party whose breach of any provision of or whose failure to perform any
obligation under this Agreement has been the cause of, or has resulted in, the
failure of the transactions to occur on or before the End Date; or
(ii) a judgment, injunction, order or decree of any
Governmental Authority having competent jurisdiction enjoining either a Seller
or the Purchaser from consummating the transactions contemplated by this
Agreement is entered and such judgment, injunction, judgment or order shall have
become final and nonappealable and, prior to such termination, the parties shall
have used their respective commercially reasonable efforts to resist, resolve or
lift, as applicable, such judgment, injunction, order or decree; provided,
18
however, that the right to terminate this Agreement under this Section
7.1(b)(ii) shall not be available to any party whose breach of any provision of
or whose failure to perform any obligation under this Agreement has been the
cause of such judgment, injunction, order or decree.
(c) by all of the Sellers:
(i) if a breach of or failure to perform any representation,
warranty, covenant or agreement on the part of the Purchaser set forth in this
Agreement shall have occurred which would cause the conditions set forth in
Section 6.2(a) not to be satisfied, and any such condition shall be incapable of
being satisfied by the End Date or such breach or failure to perform has not
been cured within ten days after notice of such breach or failure to perform has
been given by the Sellers to the Purchaser.
(d) by the Purchaser:
(i) if a breach of or failure to perform any representation,
warranty, covenant or agreement on the part of either of the Sellers set forth
in this Agreement shall have occurred which would cause the conditions set forth
in Section 6.3 not to be satisfied, and any such condition is incapable of being
satisfied by the End Date or such breach or failure to perform has not been
cured within ten days after notice of such breach or failure to perform has been
given by the Purchaser to the Sellers.
7.2 Effect of Termination. If this Agreement is terminated pursuant to
Section 7.1, except as set forth in Section 7.3 below, there shall be no
liability or obligation on the part of the Purchaser or the Sellers, or any of
their respective officers, directors, shareholders, agents or Affiliates, except
that the provisions of this Section 7.2, Section 7.3 and Section VIII of this
Agreement shall remain in full force and effect and survive any termination of
this Agreement and except that, notwithstanding anything to the contrary
contained in this Agreement, no parties shall be relieved of or released from
any liabilities or damages arising out of its material breach of or material
failure to perform its obligations under this Agreement. Upon termination of
this Agreement, the Deposit shall be disbursed pursuant to the terms of the
Escrow Agreement and Section 15.14 of this Agreement.
7.3 Expenses. Whether or not the transactions contemplated by this
Agreement are consummated, all fees and expenses of any party hereto incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such fees and expenses.
SECTION VIII MISCELLANEOUS.
--------------
8.1 Waivers and Amendments. This Agreement may be amended or modified
in whole or in part only by a writing which makes reference to this Agreement
executed by all of the parties hereto. The obligations of any party hereunder
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the party
claimed to have given the waiver; provided, however, that any waiver by any
party of any violation of, breach of, or default under any provision of this
Agreement or any other agreement provided for herein shall not be construed as,
or constitute, a continuing waiver of such provision, or waiver of any other
violation of, breach of or default under any other provision of this Agreement
or any other agreement provided for herein.
8.2 Entire Agreement. This Agreement (together with any Schedules
and/or any Exhibits hereto) among the Sellers and the Purchaser, the Escrow
Agreement and the other agreements and instruments expressly provided for
herein, together set forth the entire understanding of the parties hereto and
19
supersede in their entirety all prior contracts, agreements, arrangements,
communications, discussions, representations, and warranties, whether oral or
written, including the Letter of Intent between the Primary Sellers and the
Purchaser dated December 18, 2009, among the parties with respect to the subject
matter hereof.
8.3 Governing Law and Submission to Jurisdiction. This Agreement shall
in all respects be governed by and construed in accordance with the internal
substantive laws of the State of Delaware without giving effect to the
principles of conflicts of law thereof. Each of the parties irrevocably agrees
that any legal action or proceeding arising out of or relating to this Agreement
brought by any other party or its successors or assigns shall be brought and
determined in any Delaware State or federal court sitting in Delaware (or, if
such court lacks subject matter jurisdiction, in any appropriate Delaware State
or federal court), and each of the parties hereby irrevocably submits to the
exclusive jurisdiction of the aforesaid courts for itself and with respect to
its property, generally and unconditionally, with regard to any such action or
proceeding arising out of or relating to this Agreement and the transactions
contemplated hereby. Each of the parties agrees not to commence any action, suit
or proceeding relating thereto except in the courts described above in Delaware,
other than actions in any court of competent jurisdiction to enforce any
judgment, decree or award rendered by any such court in Delaware as described
herein. Each of the parties hereby irrevocably and unconditionally waives, and
agrees not to assert, by way of motion or as a defense, counterclaim or
otherwise, in any action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby, (a) any claim that it is not
personally subject to the jurisdiction of the courts in Delaware as described
herein for any reason, (b) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
and (c) that (i) the suit, action or proceeding in any such court is brought in
an inconvenient forum, (ii) the venue of such suit, action or proceeding is
improper or (iii) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
8.4 Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and be deemed to have been duly given
(a) when personally delivered or sent by facsimile transmission (the receipt of
which is confirmed in writing), (b) one Business Day after being sent by a
nationally recognized overnight courier service or (c) five Business Days after
being sent by registered or certified mail, return receipt requested, postage
prepaid, to the parties at their respective addresses set forth below.
If to the Sellers: Keating Investments, LLC
5251 DTC Parkway, Suite 1000
Greenwood Village, Colorado 80111
Facsimile: (720) 889-0135
Attn: Mr. Timothy Keating, Manager
Mr. Kevin R. Keating
190 Lakeview Way
Vero Beach, Florida 32963
Facsimile: (772) 231-5947
20
Lionsridge Capital, LLC
2395 Woodglen Drive
Aurora, Illinois 60502
Attn: Frederic M. Schweiger, Manager
Facsimile: (630) 692-0647
Laurus Master Fund, Ltd
335 Madison Avenue, 10th Floor
New York, NY 10017
Attn: David Grin
Facsimile: (212) 541-4434
Garisch Financial, Inc.
2395 Woodglen Drive
Aurora, Illinois 60502
Attn: Frederic M. Schweiger, President
Facsimile: (630) 692-0647
if to the Purchaser Woodman Management Corporation
3940 Laurel Canyon Blvd., Suite 327
Studio City, CA 91604
Attn: David Weiner
Facsimile: (818) 474-7589
And
Any party by written notice to the
other may change the address or the
persons to whom notices or copies
thereof shall be directed.
8.5 Counterparts; Facsimile and Electronic Signatures. This Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original, and all of which together will constitute one and the same
instrument. The signature pages hereto in facsimile copy or other electronic
means, including e-mail attachment, shall be deemed an original for all
purposes.
8.6 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns, except that the Sellers may not assign or transfer their
rights hereunder without the prior written consent of the Purchaser, and the
Purchaser may not assign or transfer its rights under this Agreement without the
consent of the Sellers.
8.7 Third Parties. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any Person other than
the parties hereto and their successors and assigns any rights or remedies under
or by reason of this Agreement.
8.8 Schedules. The Schedules and Exhibits attached to this Agreement
are incorporated herein and shall be part of this Agreement for all purposes.
8.9 Headings. The headings in this Agreement are solely for convenience
of reference and shall not be given any effect in the construction or
interpretation of this Agreement.
21
8.10 Interpretation. Whenever the context may require, any pronoun used
herein shall include the corresponding masculine, feminine or neuter forms, and
the singular form of nouns, pronouns and verbs shall include the plural and vice
versa.
[Signature Page Follows]
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SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
BY AND AMONG
THE SELLERS AND THE PURCHASER
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first above written.
THE SELLERS:
Keating Investments, LLC,
a Delaware limited liability company
By: /s/ Timothy J. Keating
---------------------------------
Timothy J. Keating, Manager
Lionsridge Capital, LLC,
an Illinois limited liability company
By: /s/ Frederic M. Schweiger
---------------------------------
Frederic M. Schweiger, Manager
Garisch Financial, Inc,
an Illinois corporation
By: /s/ Frederic M. Schweiger
---------------------------------
Frederic M. Schweiger, President
Laurus Master Fund, Ltd.,
a Cayman Islands company
By: Laurus Capital Management, LLC
By: /s/ Scott Bluestein
---------------------------------
Name (print): Scott Bluestein
-----------------------
Title: Authorized Signatory
------------------------------
/s/ Kevin R. Keating
-------------------------------------
Kevin R. Keating, Individually
THE PURCHASER:
Woodman Management Corporation
a California corporation
By: /s/ David Weiner
---------------------------------
David Weiner, President
23