SHARE EXCHANGE AGREEMENT CONO ITALIANO, INC., A Nevada Corporation CONO ITALIANO, INC., A Delaware Corporation SHAREHOLDERS OF CONO ITALIANO, INC., A Delaware Corporation
CONO
ITALIANO, INC., A Nevada Corporation
CONO
ITALIANO, INC., A Delaware Corporation
SHAREHOLDERS
OF CONO ITALIANO, INC., A Delaware Corporation
THIS
SHARE EXCHANGE AGREEMENT (this “Agreement”), dated as
of the date set forth on the signature page hereto, is entered into by and
between Cono Italiano, Inc. (formerly known as Tiger Renewable Energy Ltd.), a
Nevada corporation having its principal office at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ (the “Public Company”),
Cono Italiano, Inc. a Delaware corporation having its principal office at ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“Cono Italiano”) and
the undersigned shareholders of Cono Italiano (each a “Shareholder,” and
collectively, the “Shareholders”).
WITNESSETH:
WHEREAS,
the Public Company desires to acquire all of the issued and outstanding shares
of Cono Italiano (the “Cono Shares”) from
the Shareholders, and the Shareholder wishes to sell to the Public Company all
of the Cono Shares held of record by the Shareholder;
NOW,
THEREFORE, in consideration of the covenants, promises and representations set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1. Share
Exchange.
1.1 Transfer
of Shares. Subject to the terms and conditions stated herein, at the
Closing (as defined below), (a) the Shareholder shall assign, transfer, convey,
and deliver to the Public Company, and the Public Company shall accept and
acquire, the Cono Shares and any and all rights in such shares to which the
Shareholder is entitled, and by so doing, the Shareholder will be deemed to have
assigned all of his or her right, title and interest in and to all such Cono
Shares to the Public Company; and (b) in exchange for the Cono Shares, the
Public Company shall transfer to the Shareholders, and the Shareholders shall
accept from the Public Company, those shares of the Public Company’s common
stock (the “Exchange
Shares”) on a one-for-one basis for each share of the Cono Shares held of
record on the date of the Closing. If one or more stock certificates
representing the Cono Shares have been issued, such conveyance of the Cono
Shares shall be evidenced by such stock certificate(s), duly endorsed to the
Public Company or accompanied by stock powers duly executed to the order of the
Public Company, or other instruments of transfer in form and substance
reasonably satisfactory to the Public Company.
1.2 Transfer
of Rights to Additional Shares. At the Closing, the Shareholder
relinquishes and forever releases any and all rights, options or warrants of any
nature or kind which the Shareholder may possess to acquire additional Cono
Shares, by virtue of written agreement, verbal understanding or
otherwise. The Shareholder understands and hereby acknowledges that
the number of Exchange Shares they shall receive pursuant to this Agreement
fully reflects their exchange of all Cono Shares they may presently own and
termination of any and all rights they may possess to acquire additional shares
of Cono.
2. Closing
and Deliveries.
2.1 The
Closing. The closing (the “Closing”) of the
transactions contemplated hereunder shall take place simultaneously with the
execution of this Agreement at such place as the parties hereto may agree,
provided, however, time is of the essence and the Closing shall not be later
than ten (10) days from the date of this Agreement.
2.2 Release. The
Shareholder hereby acknowledges, represents and warrants to Cono Italiano, the
Public Company and its shareholders that the Shareholder has no claims against
Cono Italiano or the Public Company and hereby releases and forever discharges
both Cono Italiano and the Public Company and each of its past, present and
future affiliates, stockholders, members, successors and assigns and their
respective officers, directors and employees, from any and all claims, demands,
proceedings, causes of action, court orders, obligations, contracts and
agreements (express or implied), debts or liabilities under or related to Cono
Italiano and the Public Company, including, without limitation, any and all
right, warrant, or other obligation to issue additional Cono Shares to the
Shareholder in the future.
3. Representations
and Warranties.
3.1 Representations
and Warranties of the Shareholder. As an inducement to the Public
Company to enter into this Agreement and to consummate the transactions
contemplated herein, the Shareholder represents and warrants to the Public
Company as follows, of which all such representations and warranties are true
and complete as of the date of this Agreement and as of the
Closing:
(a) Authority. The
Shareholder has the right, power, authority and capacity to execute and deliver
this Agreement, to consummate the transactions contemplated hereby and to
perform his obligations under this Agreement. This Agreement
constitutes the legal, valid and binding obligations of the Shareholder,
enforceable against the Shareholder in accordance with the terms
hereof.
(b) Ownership. The
Shareholder is the sole record and beneficial owners of all of the issued and
outstanding Cono Shares in the Shareholder’s name, has good and marketable title
to the Cono Shares, free and clear of all Encumbrances (as hereinafter defined),
and has full legal right and power to sell, transfer and deliver the Cono Shares
to the Public Company in accordance with this Agreement. “Encumbrances” shall
mean any liens, pledges, hypothecations, charges, adverse claims, options,
preferential arrangements or restrictions of any kind, including, without
limitation, any restriction of the use, voting, transfer, receipt of income or
other exercise of any attributes of ownership, other than as provided under
applicable securities laws. Upon the execution and delivery of this
Agreement, the Public Company will receive good and marketable title to the Cono
Shares, free and clear of all Encumbrances. There are no
stockholders' agreements, voting trust, proxies, options, warrants, convertible
instruments, rights of first refusal or any other agreements or understandings
with respect to the Cono Shares. As contemplated by this Agreement,
following the Closing, there will be no preemptive or similar rights to purchase
or otherwise acquire shares of the capital stock of Cono Italiano pursuant to
any provision of law, the Certificate of Incorporation or By-Laws (in each case,
as amended and in effect on the date hereof), or any agreement to which any
Shareholder or Cono Italiano is a party.
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(c) No
Conflict. None of the execution, delivery, or performance of this
Agreement, or the consummation of the transactions contemplated hereby,
conflicts or will conflict with, or (with or without notice or lapse of time, or
both) will result in a termination, breach or violation of (i) any instrument,
contract or agreement to which the Shareholder is a party or by which he or she
is bound, or to which the Cono Shares are subject; or (ii) any federal, state,
local or foreign law, ordinance, judgment, decree, order, statute, or
regulation, or that of any other governmental body or authority, applicable to
the Shareholder or the Cono Shares.
(d) No
Consent. No consent, approval, authorization or order of, or any
filing or declaration with any governmental authority or any other person, is
required for the consummation by the Shareholder of any of the transactions
contemplated by the Shareholder under this Agreement.
(e) Own
Account. The Shareholder is acquiring the Exchange Shares for his or
her own account as principal, and not as a nominee or agent; for investment
purposes only, and not with a view to, or for, resale, distribution or
fractionalization thereof in whole or in part; and no other person has a direct
or indirect beneficial interest in such Exchange Shares or any portion
thereof. The Shareholder does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations in the Exchange Shares to such person or to any third
person.
(f) No
Advertisement. The Shareholder is not acquiring the Exchange Shares
as a result of or subsequent to any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, or presented at any seminar or meeting, or pursuant to
any solicitation of a subscription by a person not previously known to the
Shareholder in connection with investment securities generally.
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(g) No
Obligation to Register. The Shareholder understands that the Public
Company is not under any obligation to register the Exchange Shares under the
Securities Act of 1933, as amended (the “Securities Act”), or
to assist the Shareholder in complying with the Securities Act or the securities
laws of any state of the United States or of any foreign
jurisdiction. The Shareholder understands that the Exchange Shares
must be held indefinitely unless such Exchange Shares are registered under the
Securities Act or an exemption from registration is available. The
Shareholder acknowledges that such person is familiar with Rule 144 of the rules
and regulations of the Commission, as amended, promulgated pursuant to the
Securities Act (“Rule
144”), and that the Shareholder has been advised that Rule 144 permits
resales only under certain circumstances. The Shareholder understands
that to the extent that Rule 144 is not available, the Shareholder will be
unable to sell any Exchange Shares without either registration under the
Securities Act or the existence of another exemption from such registration
requirement.
(h) Experience. The
Shareholder is (1) experienced in making investments of the kind described in
this Agreement and the related documents, (2) able, by reason of the business
and financial experience of its officers (if an entity) and professional
advisors (who are not affiliated with or compensated in any way by the Public
Company or any of its affiliates or selling agents), to protect its own
interests in connection with the transactions described in this Agreement, and
the related documents, and (3) able to afford the entire loss of its investment
in the Exchange Shares.
(i) Exemption
from Registration. The Shareholder acknowledges his or her
understanding that the offering and sale of Exchange Shares is intended to be
exempt from registration under the Securities Act. In furtherance
thereof, in addition to the other representations and warranties of the
Shareholder made herein, the Shareholder further represents and warrants to and
agrees with each of the Public Company and their affiliates as
follows:
(1) The
Shareholder realizes that the basis for the exemption may not be present if,
notwithstanding such representations, the Shareholder is acquiring the Exchange
Shares for a fixed or determinable period in the future, or for a market rise,
or for sale if the market does not rise. The Shareholder does not
have such intention.
(2) The
Shareholder has adequate means for providing for his current needs and personal
contingencies and has no need for liquidity with respect to the acquisition of
the Exchange Shares.
(3) The
Shareholder has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of the prospective
investment in the Exchange Shares.
(4) The
Shareholder has been provided an opportunity for a reasonable period of time
prior to the date hereof to obtain additional information concerning the
offering of the Exchange Shares, the Public Company, and all other information
to the extent the Public Company possesses such information or can acquire it
without unreasonable effort or expense.
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(j) Risk. The
Shareholder understands that an investment in the Exchange Shares is a
speculative investment which involves a high degree of risk and the potential
loss of his entire investment.
(k) Net
Worth. The Shareholder’s overall commitment to investments which are
not readily marketable is not disproportionate to the Shareholder’s net worth,
and the acquisition of the Exchange Shares will not cause such overall
commitment to become excessive.
(l) SEC
Documents. The Shareholder has received all documents, records, books
and other information pertaining to the Shareholder’s investment in the Public
Company that has been requested by the Shareholder. The Shareholder
has reviewed or received copies of all reports and other documents filed by the
Public Company with the Securities and Exchange Commission (the “SEC Documents”) under
the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
(m) Reliance. Other
than as set forth herein, the Shareholder are not relying upon any other
information, representation or warranty by the Public Company, or any officer,
director, stockholder, agent or representative of the Public Company in
determining to invest in the Exchange Shares. The Shareholder has
consulted, to the extent deemed appropriate by the Shareholder, with the
Shareholder’s own advisers as to the financial, tax, legal and related matters
concerning an investment in the Exchange Shares and on that basis believes that
his or its investment in the Exchange Shares is suitable and appropriate for the
Shareholder.
(n) No
Governmental Review. The Shareholder is aware that no federal or
state agency has (1) made any finding or determination as to the fairness of
this investment, (2) made any recommendation or endorsement of the Exchange
Shares, the Public Company, or (3) guaranteed or insured any investment in the
Exchange Shares or any investment made by the Public Company.
(o) Price. The
Shareholder understands that the value of the Exchange Shares offered hereby
bear no relation to the assets, book value or net worth of the Public Company
and were determined arbitrarily by the Public Company. The
Shareholder further understands that there is a risk of further dilution of his,
her or its investment in the Public Company.
(p) Compliance
Undertakings. The Shareholder hereby acknowledges that he/she is
acquainted with the requirements of Section 16 and Section 13(d) of the
Securities Exchange Act of 1934 and the rules and regulations issued
thereunder. The Shareholder understands that, as a result of its
acquisition of Shares, and in order to comply with Section 16 and Section 13(d)
and the rules and regulations issued thereunder, certain Shareholders may be
required to file a report on Form 3 and a Schedule 13D and the Shareholder
hereby undertakes and agrees to make such filing in a timely manner if so
required.
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3.2 Representations
and Warranties of the Public Company. As an inducement to the
Shareholders to enter into this Agreement and to consummate the transactions
contemplated herein, the Public Company represents and warrants to the
Shareholders as follows, all of which are true and complete as of the date of
this Agreement and as of the Closing, except to the extent set forth on a
disclosure schedule attached hereto referencing the Section and paragraph number
of the provision herein corresponding to such exception:
(a) Organization
of the Public Company. The Public Company is a corporation duly
organized and validly existing and in good standing under the laws of the State
of Nevada, and has all requisite power and authority to own, lease and operate
its properties and to carry on its business as now being
conducted. The Public Company is duly qualified as a foreign
corporation to do business and is in good standing in every jurisdiction in
which the nature of the business conducted or property owned by it makes such
qualification necessary, other than those in which the failure so to qualify
would not have a material adverse effect on the business, operations,
properties, prospects or condition (financial or otherwise) of the Public
Company. The Public Company has, prior to the execution of this
Agreement, made available by reference to filings on the SEC Website, true and
complete copies of its (i) Certificate of Incorporation with all amendments
thereto; and (ii) By-laws, in each case as in effect on the date of
Closing. Public Company is not in default under or in violation of
any provision of its Certificate of Incorporation or By-laws.
(b) Authority. (1)
The Public Company has the requisite corporate power and authority to enter into
and perform its obligations under this Agreement and to issue the Exchange
Shares; (2) the execution and delivery of this Agreement by the Public Company
and the consummation by it of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate action and no further
consent or authorization of the Public Company or its Board of Directors or
stockholders is required; and (3) this Agreement has been duly executed and
delivered by the Public Company and constitutes a valid and binding obligation
of the Public Company enforceable against the Public Company in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
(c) Exemption
from Registration; Valid Issuances. When issued and transferred as
herein provided, the Exchange Shares shall be duly authorized, validly issued,
fully paid, and nonassessable. Neither the sales of the Exchange
Shares pursuant to, nor the Public Company’s performance of its obligations
under, this Agreement shall (1) result in the creation or imposition of any
liens, charges, claims or other encumbrances upon the Exchange Shares or any of
the assets of the Public Company, or (2) entitle the other holders of the common
stock of the Public Company to preemptive or other rights to subscribe to or
acquire the Exchange Shares or other securities of the Public
Company.
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(d) No
General Solicitation or Advertising in Regard to this
Transaction. Neither the Public Company nor any of its affiliates nor
any person acting on its or their behalf (1) has conducted or will conduct any
general solicitation (as that term is used in Rule 502(c) of Regulation D) or
general advertising with respect to any of the Exchange Shares, or (2) made any
offers or sales of any security or solicited any offers to buy any security
under any circumstances that would require registration of the Exchange Shares
under the Securities Act.
(e) No
Conflicts. The execution, delivery and performance of this Agreement
by the Public Company and the consummation by the Public Company of the
transactions contemplated hereby, including without limitation the issuance of
the Exchange Shares, do not and will not (1) result in a violation of the
Certificate of Incorporation or By-Laws of the Public Company, or (2) conflict
with, or constitute a material default (or an event that with notice or lapse of
time or both would become a material default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any material
agreement, indenture, instrument or any "lock-up" or similar provision of any
underwriting or similar agreement to which the Public Company is a party, or (3)
result in a violation of any federal, state, local or foreign law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Public Company or by which any property
or asset of the Public Company is bound or affected (except for such conflicts,
defaults, terminations, amendments, accelerations, cancellations and violations
as would not, individually or in the aggregate, have a material adverse effect
on the business, operations, properties, prospects or condition (financial or
otherwise) of the Public Company) nor is the Public Company otherwise in
violation of, conflict with or in default under any of the
foregoing. The business of the Public Company is not being conducted
in violation of any law, ordinance or regulation of any governmental entity,
except for possible violations that either singly or in the aggregate do not and
will not have a material adverse effect on the business, operations, properties,
prospects or condition (financial or otherwise) of the Public
Company. The Public Company is not required under federal, state or
local law, rule or regulation to obtain any consent, authorization or order of,
or make any filing or registration with, any court or governmental agency in
order for it to execute, deliver or perform any of its obligations under this
Agreement or issue and sell the Exchange Shares in accordance with the terms
hereof (other than any SEC, FINRA or state securities filings that may be
required to be made by the Public Company subsequent to the Closing, any
registration statement that may be filed pursuant hereto, and any shareholder
approval required by the rules applicable to companies whose common stock trades
on the Over The Counter Bulletin Board); provided that, for purposes of the
representation made in this sentence, the Public Company is assuming and relying
upon the accuracy of the relevant representations and agreements of the
Shareholder herein.
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(f) Litigation
and Other Proceedings. Except as may be set forth in the SEC
Documents, there are no lawsuits or proceedings pending or to the best knowledge
of the Public Company threatened, against the Public Company, nor has the Public
Company received any written or oral notice of any such action, suit, proceeding
or investigation, which would have a material adverse effect on the business,
operations, properties, prospects or condition (financial or otherwise) of the
Public Company. Except as set forth in the SEC Documents, no
judgment, order, writ, injunction or decree or award has been issued by or, so
far as is known by the Public Company, requested of any court, arbitrator or
governmental agency which would have a material adverse effect on the business,
operations, properties, prospects or condition (financial or otherwise) of the
Public Company.
(g) Authorized
Capitalization. The authorized capital stock of the Public Company
consists of: a total of one hundred million (100,000,000) shares of common
stock, par value $.001 per share. The Public Company has issued and
outstanding such options and warrants as are set forth in the SEC
Documents. The
Public Company expects to adopt a new equity incentive plan with a number of
shares of Public Company common stock authorized to be issued thereunder to be
determined by the Board of Directors as customary and reasonable by reference to
similarly-situated public companies.
(h) Full
Disclosure. No representation or warranty made to any Shareholder by
the Public Company in this Agreement omits to state a material fact necessary to
make the statements herein, in light of the circumstances in which they were
made, not misleading. There is no fact known to the Public Company
that has specific application to the Exchange Shares and that materially
adversely affects or, as far as can be reasonably foreseen, materially threatens
the Exchange Shares that has not been set forth in this Agreement or otherwise
disclosed in the Public Company’s publicly available reports and disclosures
filed with the U.S. Securities and Exchange Commission.
3.3 Representations
and Warranties regarding Cono Italiano. As an inducement to the
Public Company to enter into this Agreement and to consummate the transactions
contemplated herein, Cono Italiano represents and warrants to the Public Company
as follows regarding matters pertaining to Cono Italiano, all of which are true
and complete as of the date of this Agreement and as of the Closing, except to
the extent set forth on a disclosure schedule attached hereto referencing the
section and paragraph number of the provision herein corresponding to such
exception:
(a) Organization
of Cono Italiano. Cono Italiano is a corporation duly organized and
validly existing and in good standing under the laws of the state of Delaware,
and has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. Cono
Italiano is duly qualified as a foreign corporation to do business and is in
good standing in every jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary, other than
those in which the failure so to qualify would not have a material adverse
effect on the business, operations, properties, prospects or condition
(financial or otherwise) of Cono Italiano. Cono Italiano has, prior
to the execution of this Agreement, delivered to the Public Company true and
complete copies of its (i) Certificate of Incorporation with all amendments
thereto; and (ii) By-Laws, in each case as in effect on date of the
Closing. Cono Italiano is not in default under or in violation of any
provision of its Certificate of Incorporation or By-Laws.
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(b) Authority. (1)
Cono Italiano has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement; (2) the execution and delivery of
this Agreement by Cono Italiano and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action and no further consent or authorization of Cono Italiano or its
Board of Directors or stockholders is required; and (3) this Agreement has been
duly executed and delivered by Cono Italiano and constitutes a valid and binding
obligation of Cono Italiano enforceable against Cono Italiano in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
(c) Issuances. The
shares of Cono Italiano delivered hereto have been properly issued by Cono
Italiano pursuant to applicable federal and state laws or exemption
therefrom. When delivered as herein provided, the Cono Shares shall
be duly authorized, validly issued, fully paid, and
nonassessable. Neither the transfer of the Cono Shares pursuant to,
nor the Public Company's or Public Company’s performance of Cono Italiano
obligations under, this Agreement shall (1) result in the creation or imposition
of any liens, charges, claims or other encumbrances upon the Cono Shares or any
of the assets of Cono Italiano, or (2) entitle the other holders of the Cono
Shares to any rights to subscribe to or acquire any other Cono Shares or other
securities of the Public Company or the Public Company. The Cono
Shares constitute all of the issued and all outstanding equity interests in Cono
Italiano and there are no direct or indirect rights of any nature or kind issued
or outstanding, contingent or otherwise, to acquire any Cono Shares, including,
without limitation, no options, warrants or instruments convertible into Cono
Shares.
(d) No
General Solicitation or Advertising in Regard to this
Transaction. Neither Cono Italiano, nor any of its affiliates nor any
person acting on its or their behalf (1) has conducted or will conduct any
general solicitation (as that term is used in Rule 502(c) of Regulation D) or
general advertising with respect to any of the Cono Shares, or (2) made any
offers or sales of any security or solicited any offers to buy any security
under any circumstances that would require registration of the Cono Shares under
the Securities Act.
(e) No
Conflicts. The execution, delivery and performance of this Agreement
by Cono Italiano and the consummation by Cono Italiano of the transactions
contemplated hereby, do not and will not (1) result in a violation of the
Certificate of Incorporation or By-Laws of Cono Italiano, or (2) conflict with,
or constitute a material default (or an event that with notice or lapse of time
or both would become a material default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any one or more
agreements that individually or in the aggregate are material, indenture,
instrument or any "lock-up" or similar provision of any underwriting or similar
agreement to which Cono Italiano is a party, or (3) result in a violation of any
federal, state, local or foreign law, rule, regulation, order, judgment or
decree (including federal and state securities laws and regulations) applicable
to Cono Italiano or by which any property or asset of Cono Italiano is bound or
affected (except, in the case of (2) and (3), for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a material adverse effect on the
business, operations, properties, prospects or condition (financial or
otherwise) of Cono Italiano or its ability to consummate the transaction
contemplated hereby) nor is Cono Italiano otherwise in violation of, conflict
with or in default under any of the foregoing. The business of Cono
Italiano is not being conducted in violation of any law, ordinance or regulation
of any governmental entity, except for possible violations that either singly or
in the aggregate do not and will not have a material adverse effect on the
business, operations, properties, prospects or condition (financial or
otherwise) of Cono Italiano.
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(f) Litigation
and Other Proceedings. There are no lawsuits or proceedings pending
or, to the best knowledge of the Shareholder or Cono Italiano threatened,
against Cono Italiano, nor has Cono Italiano received any written or oral notice
of any such action, suit, proceeding or investigation, which would have a
material adverse effect on the business, operations, properties, prospects or
condition (financial or otherwise) of Cono Italiano. No judgment,
order, writ, injunction or decree or award has been issued by or, so far as is
known by the Shareholder or Cono Italiano, requested of any court, arbitrator or
governmental agency which would have a material adverse effect on the business,
operations, properties, prospects or condition (financial or otherwise) of Cono
Italiano or its ability to consummate the transaction contemplated
hereby.
(g) Taxes.
(i) Cono
Italiano has timely filed with the appropriate taxing authorities all tax
returns required to have been filed by Cono Italiano on or before the Closing
Date; each such tax return is true, correct and complete in all material
respects; and all taxes of Cono Italiano that are required to have been paid on
or before the Closing Date (whether or not shown on any tax return) have been
timely paid in full.
(ii) There
is no action, suit, proceeding, investigation, audit, claim or assessment
pending or, to the knowledge of the Shareholder, threatened with respect to Cono
Italiano with respect to a liability for taxes or with respect to any tax
return. No deficiency for any tax has been assessed with respect to
Cono Italiano which has not been paid in full.
4. Stock
Legend.
Each
certificate representing the Exchange Shares shall be stamped or otherwise
imprinted with legends substantially in the following form (in addition to any
legend required by applicable state securities or "blue sky" laws)(the use of
the term “Cono Italiano, Inc.” in this legend refers to the Public
Company):
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THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE "SECURITIES") HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
(1)(A) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE ACT (IF AVAILABLE) OR ANOTHER THEN AVAILABLE EXEMPTION UNDER THE ACT AND
STATE SECURITIES LAWS, OR (B) IN A TRANSACTION THAT DOES NOT REQUIRE
REGISTRATION UNDER THE ACT OR ANY APPLICABLE STATE LAWS, AND WHEREIN THE ISSUER
SHALL HAVE RECEIVED AN OPINION OF COUNSEL THAT REGISTRATION OF SUCH SECURITIES
UNDER THE ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS
NOT REQUIRED, OR (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE
TIME OF SUCH TRANSFER); AND (2) PRIOR TO ANY SUCH TRANSFER, IT WILL FURNISH TO
THE ISSUER AND THE TRANSFER AGENT FOR THE COMMON STOCK SUCH CERTIFICATIONS,
LEGAL OPINIONS, OR OTHER INFORMATION AS THE ISSUER OR SUCH TRANSFER AGENT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE ACT OR STATE SECURITIES LAWS; AND (3) IT WILL DELIVER TO
EACH PERSON TO WHOM THE SECURITIES EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. FURTHERMORE, HEDGING
TRANSACTIONS INVOLVING THE SECURITIES EVIDENCED HEREBY MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE ACT.
The
Public Company agrees to reissue certificates representing any of the Exchange
Shares without the legend set forth above if at such time, prior to making any
transfer of any such Exchange Shares, such holder thereof shall give written
notice to the Public Company describing the manner and terms of such transfer
and removal as the Public Company may reasonably request. Such
proposed transfer and removal will not be effected until: (a) either (i) the
Public Company has received an opinion of counsel reasonably satisfactory to the
Public Company, to the effect that the registration of the Exchange Shares under
the Securities Act is not required in connection with such proposed transfer;
(ii) a registration statement under the Securities Act covering such proposed
disposition has been filed by the Public Company with the Commission and has
become effective under the Securities Act; (iii) the Public Company has received
other evidence reasonably satisfactory to the Public Company that such
registration and qualification under the Securities Act and state securities
laws are not required; or (iv) the holder provides the Public Company with
reasonable assurances that such security can be sold pursuant to Rule 144 under
the Securities Act; and (b) either (i) the Public Company has received an
opinion of counsel reasonably satisfactory to the Public Company, to the effect
that registration or qualification under the securities or "blue sky" laws of
any state is not required in connection with such proposed disposition; or (ii)
compliance with applicable state securities or "blue sky" laws has been effected
or a valid exemption exists with respect thereto.
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5. Broker. The
parties acknowledge that no broker is entitled to a brokerage
commission/finder's fee as a result of the transactions contemplated by this
Agreement.
6. Miscellaneous.
(a) Notices. All
notices or other communications required or permitted hereunder shall be in
writing. Any notice, request, demand, claim or other communication
hereunder shall be deemed duly given (i) if by personal delivery, when so
delivered; (ii) if mailed, three (3) business days after having been sent by
registered or certified mail, return receipt requested, postage prepaid and
addressed to the intended recipient as set forth below; or (iii) if sent through
an overnight delivery service in circumstances to which such service guarantees
next day delivery, the day following being so sent to the address of the
intended recipient as first set forth above. Any party may change the
address to which notices and other communications hereunder are to be delivered
by giving the other parties notice in the manner herein set forth.
| Notice Address of Public Company: | Cono
Italiano, Inc.
▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Chief
Executive Officer
|
||
| Notice Address of Cono Italiano: | Cono
Italiano, Inc.
▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Chief
Executive Officer
|
||
| Notice Address of Shareholders: | As set forth on Annex A hereto. |
(b) Choice
of Law. This Agreement shall be governed, construed and enforced in
accordance with the laws of the State of New York and the federal laws of United
States applicable therein, without giving effect to principles of conflicts of
law.
(c) Jurisdiction. The
parties hereby irrevocably consent to the in personam jurisdiction of the state
or federal courts located in the State of New York, in connection with any
action or proceeding arising out of or relating to this Agreement or the
transactions and the relationships established thereunder. The
parties hereby agree that such courts shall be the venue and exclusive and
proper forum in which to adjudicate such matters and that they will not contest
or challenge the jurisdiction or venue of these courts.
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(d) Entire
Agreement. This Agreement sets forth the entire agreement and
understanding of the parties in respect of the transactions contemplated hereby
and supersedes all prior and contemporaneous agreements, arrangements and
understandings of the parties relating to the subject matter
hereof. No representation, promise, inducement, waiver of rights,
agreement or statement of intention has been made by any of the parties which is
not expressly embodied in this Agreement, such other agreements, notes or
instruments related to this transaction executed simultaneously herewith, or the
written statements, certificates, schedules or other documents delivered
pursuant to this Agreement or in connection with the transactions contemplated
hereby.
(e) Assignment. Each
party's rights and obligations under this Agreement shall not be assigned or
delegated, by operation of law or otherwise, without the other party's prior
consent, and any such assignment or attempted assignment shall be void, of no
force or effect, and shall constitute a material default by such
party.
(f) Amendments. This
Agreement may be amended, modified, superseded or cancelled, and any of the
terms, covenants, representations, warranties or conditions hereof may be
waived, only by a written instrument executed by each party, in the case of a
waiver, by the party waiving compliance.
(g) Waivers. The
failure of any party at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later time to enforce
the same. No waiver by any party of any condition, or the breach of
any term, covenant, representation or warranty contained in this Agreement,
whether by conduct or otherwise, in any one or more instances shall be deemed to
be or construed as a further or continuing waiver of any such condition or
breach or a waiver of any other term, covenant, representation or warranty of
this Agreement.
(h) Further
Assurances. The parties shall from time to time do and perform such
additional acts and execute and deliver such additional documents and
instruments as may be required or reasonably requested by any party to
establish, maintain or protect its rights and remedies or to effect the purposes
of this Agreement.
(i) Interpretation.
All references to “material” or “materiality” herein shall refer to matters,
understandings, agreements, actions, courses of dealing, courses of operations,
or events, which individually or in the aggregate exceed $200,000. All
references to “knowledge” means those facts or circumstances actually known
after due inquiry. No ambiguity in any provision hereof shall be construed
against parties by reason of the fact it was drafted by such party or its
counsel. References to “including” means including without limiting
the generality of any description preceding such term. Nothing expressed
or implied in this Agreement is intended, or shall be construed, to confer upon
or give any person other than the parties any rights or remedies under or by
reason of this Agreement.
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(j) Binding
Effect; Benefits. This Agreement shall inure to the benefit of, and
be binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to or shall confer upon any person
other than the parties hereto, and their respective heirs, legal
representatives, successors and permitted assigns, any rights, remedies,
obligations or liabilities under, in connection with or by reason of this
Agreement.
(k) Reporting. The
Shareholder and Cono Italiano acknowledge that the Public Company is a public
corporation subject to U.S. Federal securities laws. The Shareholder
and Cono Italiano acknowledge that they will not engage in any trading in the
Public Company’s securities until after public announcement of the acquisition
in form and date to be mutually agreed upon by the Shareholder and the Public
Company. The Shareholder furthermore agree to use commercially
reasonable efforts to promptly comply and assist the Public Company with any and
all requests for information as necessary to comply with the Public Company’s
filing requirements with the U.S. Securities and Exchange Commission and the
Public Company’s public reporting obligations.
(l) Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, and all of which shall constitute one and the same
instrument. This Agreement shall be accepted, effective and binding, for
all purposes, when the parties shall have signed and transmitted to each other,
by facsimile, electronic mail or otherwise, copies of the signature pages
hereto, which shall have the same full force and effect as an original
thereof.
[Signature
Pages Follow]
14
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
______ day of ________________, 20___.
|
CONO
ITALIANO, INC., A Nevada Corporation
(Referred
to herein as the “Public Company)
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
CONO
ITALIANO, INC., A Delaware Corporation
(Referred
to herein as “Cono Italiano”)
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| SHAREHOLDER OF CONO ITALIANO, INC. | |||
|
|
(Signature)
|
||
| Print Name: | |||
| Title: | |||
15
Annex A
Name
and Notice Address for Exchanging Shareholder of Cono Italiano,
Inc.
16