EX-10.1
SECURITIES PURCHASE AGREEMENT
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT ("Agreement") is made as of July 3, 2006 by
and between Andain Inc. a company incorporated under the law of the
State of Nevada resident at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
("Purchaser"), and Pangea Investments GmbH, a company incorporated
under the laws of republic of Switzerland, resident at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, the sole shareholder ("Shareholder")
of Impact Active Team Ltd, Inc., an Israeli corporation ("Impact").
RECITALS
WHEREAS, the Shareholder is the owner of all the issued and
outstanding shares of common stock ("Shares") of Impact; and
WHEREAS, Purchaser desires to purchase from the Shareholder, and the
Shareholder desire to sell to Purchaser, all the Shares in accordance
with the provisions of this Agreement.
NOW, THEREFORE, in consideration of the respective covenants contained
herein and intending to be legally bound hereby, the parties hereto
agree as follows:
AGREEMENTS
1. Purchase and Sale.
Subject to the terms and conditions contained in this Agreement, on
the Closing (defined below), the Shareholder shall sell, assign,
transfer and deliver to Purchaser all of the issued and outstanding
shares of Impact. In Consideration for Impact purchased shares, the
Purchaser shall sell, assign, transfer and deliver to the Shareholder
the sum of Two Million Five Hundred Thousand (2,500,000) restricted
shares of common stock ("Purchase Price").
2. Closing.
The closing ("Closing") of the sale and purchase of the Shares shall
take place on June 12, 2006, or at such other date, time or place as
may be agreed upon in writing by the parties hereto, but not later
than December 31, 2006 ("Termination Date"). The date of the Closing
is sometimes herein referred to as the "Closing."
2.1 Items to be Delivered Immediately Prior to or at Closing.
At the Closing:
(a) The Shareholder shall deliver to Purchaser a
certificate or certificates representing all issued and
outstanding shares, duly endorsed in blank or accompanied by
stock powers duly executed in blank.
(b) Purchaser shall deliver to the Shareholder a
certificate or certificates of Two Million Five Hundred Thousand
(2,500,000) restricted shares of the Purchaser's common stock of
as the purchase price. ("Purchase Price").
3. Representations and Warranties of the Shareholder.
The Shareholder, individually as pertains to their particular
shareholder and not jointly, and the other Shareholder hereby
represent and warrant to Purchaser the representations and
warranties, as follows:
3.1. Validity of Transaction.
The Shareholder owns the number of Shares set forth opposite his
name on Exhibit A to this Agreement. The Shareholder has all
requisite power and authority to execute, deliver, and perform
this Agreement and to sell to Purchaser the Shares to be sold by
the Shareholder pursuant hereto. All necessary corporate
proceedings or other similar actions by the Shareholder have
been duly taken to authorize the execution, delivery, and
performance of this Agreement and to authorize the sale of the
Shares by the Shareholder. This Agreement has been duly
authorized, executed, and delivered by the Shareholder, is the
legal, valid, and binding obligation of the Shareholder, and is
enforceable as to the Shareholder in accordance with its terms
except as may be limited by bankruptcy, insolvency, moratorium
or other similar laws affecting creditors' rights generally, and
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
No consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing
with, any federal, state, local, or other governmental authority
or of any court or other tribunal is required by the Shareholder
for the execution, delivery, or performance of this Agreement by
the Shareholder, and except as would not affect the ability of
the Shareholder to perform any of his material obligations under
this Agreement. No consent of any party to any contract,
agreement, instrument, lease, license, arrangement, or
understanding to which the Shareholder is a party, or by which
any of its properties or assets is bound, shall be required for
the execution, delivery, or performance by a Shareholder of this
Agreement, except for such consents as have been obtained at or
prior to the date of this Agreement, and except as would not
affect the ability of the Shareholder to perform any of his
material obligations under this Agreement. The execution,
delivery, and performance of this Agreement by the Shareholder
will not violate, result in a breach of, conflict with, or (with
or without the giving of notice or the passage of time or both)
entitle any party to terminate or call a default under, any such
contract, agreement, instrument, lease, license, arrangement, or
understanding, or violate or result in a breach of any term of
the certificate or articles of incorporation or by-laws (or
other organizational document) of Impact, or violate, result in
a breach of, or conflict with any law, rule, regulation, order,
judgment, or decree binding on a Shareholder or to which any of
his operations, business, properties, or assets is subject,
except as would not affect the ability of such Shareholder to
perform any of its material obligations under this Agreement.
The Shares sold by the Shareholder have been duly authorized and
validly issued and are fully paid and nonassessable and have not
been issued in violation of any preemptive right of stockholders
or rights of first refusal. Upon the transfer of the Shares,
sold by the Shareholder to Purchaser at the Closing, Purchaser
shall acquire good and valid title to such Shares free and clear
of all claims, liens, security interests, pledges, charges,
encumbrances, stockholders' agreements, and voting trusts (other
than any created for and in favor of Purchaser).
3.2 Finder or Broker. The Shareholder has not incurred any fee
as a result of any negotiation with any finder, broker,
intermediary, or similar person in connection with the
transaction contemplated hereby that will result in any
liability to Purchaser.
3.3. Accredited Investor. The Shareholder is a "sophisticated"
or "accredited" investor, as those terms are defined in
Regulation D promulgated under the Securities Act of 1933, as
amended ("Securities Act"). The Shareholder has received all
requested documents from Purchaser, including without
limitation, and has had an opportunity to ask questions of and
receive answers from the officers of Purchaser with respect to
the business, results of operations, financial condition, and
prospects of Purchaser.
3.4 Corporate Existence. Impact is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of Israel and has all corporate powers and all
governmental licenses, authorizations, permits, consents and
approvals required to carry on its business as now conducted.
Impact is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction where such
qualification is necessary, except for those jurisdictions where
failure to be so qualified would not, individually or in the
aggregate, be material to the business of Impact. Impact is not
in violation of any of the provisions of its Certificate of
Incorporation, its Bylaws, or any regulations governing them.
3.5. Capitalization.
(a) The authorized equity of Impact consists of Ten Million
(10,000,000) Shares, of which Five Hundred Thousand (500,000)
are issued and outstanding.
(b) To the knowledge of the Shareholder, (i) all outstanding
Shares have been duly authorized and validly issued and are
fully paid and non-assessable and are not subject to preemptive
rights created under the Israel, Switzerland or Nevada laws, its
Certificate of Incorporation, its Bylaws, or any regulations
governing them, or any agreement or document to which Impact is
a party or by which it or its assets are bound, (ii) all
outstanding Shares have been issued and granted in compliance
with all applicable securities law and other legal requirements
and all requirements set forth in applicable agreements or
instruments, and (iii) none of the outstanding Shares is
unvested or is subject to a repurchase option, risk of
forfeiture or other condition.
(c) Other than the Shares, there are no outstanding (i) shares
of equity or voting securities of Impact, (ii) securities of
Impact convertible into or exchangeable for shares of capital
stock or voting securities of Impact or (iii) options or other
rights to acquire from Impact, or other obligation of Impact to
issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting
securities of Impact. There are no registration rights, other
than as set forth in this Agreement, and there is no voting
trust, proxy, rights plan, anti-takeover plan or other agreement
or understanding to which Impact is a party. There are no
outstanding obligations of Impact to repurchase, redeem or
otherwise acquire any Shares.
3.6. Financial Statements.
The Shareholder acknowledges that its books and records of
Impact fairly and correctly set out and disclose in all material
respects, in accordance with generally accepted accounting
principles ("GAAP"), the financial position of Impact as at the
date hereof, and all material financial transactions of the
Impact have been accurately recorded in such books and records.
However, financial statements date within one hundred thirty-
five (135) days of the date of this Agreement shall be required
to be furnished within sixty (60) days from the date of closing
of this transaction.
3.7. No Undisclosed Material Liabilities.
There are no liabilities of Impact of any kind whatsoever,
whether accrued, contingent, absolute, determined or
determinable, and no existing condition, situation or set of
circumstances which could reasonably result in such a liability,
other than:
(a) liabilities recorded in full or reserved for; and
(b) liabilities incurred in the ordinary course of the business
of Impact consistent with past practice, none of which has or
may reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the business, results of
operations, or financial condition of Impact.
3.8. Litigation.
Except those disclosed in Exhibit 3.8 herein, there is no
action, suit, investigation or proceeding (or to the Shareholder
knowledge any basis therefor) pending against, or to the
knowledge of the Shareholder, threatened against or affecting,
the Shareholder, Impact or any of their respective properties
before any court or arbitrator or any governmental body, agency
or official which, individually or in the aggregate, if
determined or resolved adversely in accordance with the
plaintiff's demands, could reasonably be expected to have a
material adverse effect on the business, results of operations,
or financial condition of Impact or which in any manner
challenges or seeks to prevent, enjoin, alter or materially
delay the transactions contemplated by this Agreement.
3.9. Intellectual Property.
Impact has good and valid title to and ownership of all
Intellectual Property (defined herein as trade marks, trade
names or copyrights, patents, domestic or foreign) necessary for
its business and operations. There are no outstanding options,
licenses or agreements of any kind to which Impact is a party or
by which it is bound relating to any Intellectual Property,
whether owned by Impact or another person. To the knowledge of
the Impact, the business of Impact as formerly and presently
conducted did not and does not conflict with or infringe upon
any Intellectual Property right, owned or claimed by another.
3.10. Compliance with Laws and Court Orders.
(a) Impact is not in violation of, and to the knowledge of the
Shareholder is not under investigation with respect to and has
not been threatened to be charged with or given notice of any
violation of, any applicable law, rule, regulation, judgment,
injunction, order or decree, except for violations that have not
had and could not reasonably be expected to have, individually
or in the aggregate, a material adverse effect on the business,
results of operations or financial condition of Impact.
(b) To the knowledge of the Shareholder, each executive officer
and director of Impact has complied with all applicable laws in
connection with or relating to actions within the scope of
Impact's business, except where the failure to comply would not
be material to Impact. No executive officer or director of
Impact is a party to or the subject of any pending or threatened
suit, action, proceeding or investigation by any governmental
entity that would have a material adverse effect on the
business, results of operations or financial condition of Impact.
(c) Impact and each of its officers and directors have complied
in all material respects with the applicable provisions of
▇▇▇▇▇▇▇▇-▇▇▇▇▇. Impact has disclosed any of the information
required to be disclosed by Impact and certain of its officers
to Impact's Board of Directors or any committee thereof pursuant
to the certification requirements contained in Form 10-KSB and
Form 10-QSB under the Exchange Act. From the period beginning
January 1, 2004 to the present, neither Impact nor any of its
Affiliates made any loans to any executive officer or director
of Impact.
3.11. Absence of Liens and Encumbrances; Title to Properties.
Impact has good, valid and marketable title to all properties
and assets used in the conduct of its business free of all
liens, mortgages, pledges, charges, security interests,
encumbrances or other adverse claims of any kind, except as set
forth in its financial statements.
3.12. Material Contracts.
Impact is not a party to or bound by any Contract (as defined
below) that (a) is a material contract, or (b) materially limits
or otherwise materially restricts Impact or that would, after
the Closing, materially limit or otherwise materially restrict
Impact or any of its subsidiaries or any successor thereto,
from engaging or competing in any material line of business in
any geographic area or that contains most favored nation pricing
provisions or exclusivity or non-solicitation provisions with
respect to customers. As used herein, "Contract" shall mean any
written or oral agreement, contract, commitment, lease, license,
contract, note, bond, mortgage, indenture, arrangement or other
instrument or obligation. Impact is not in, or has received
notice of, any violation of or default under (or any condition
which with the passage of time or the giving of notice would
cause such a violation of or default under) any Contract or any
other Contract to which it is a party or by which it or any of
its properties or assets is bound, except for violations or
defaults that would not have a material adverse effect on the
business, results of operations or financial condition of Impact
or, after giving effect to the Closing, Impact or any of its
subsidiaries.
3.13. Taxes.
(a) Impact has timely filed all tax returns required to be filed
on or before the Closing and all such tax returns are true,
correct and complete in all respects. Impact has paid in full on
a timely basis all taxes owed by it, whether or not shown on any
tax return, except where the failure to file such return or pay
such taxes would not have a material adverse effect. No claim
has ever been made by any authority in any jurisdiction where
Impact does not file tax returns that Impact may be subject to
taxation in that jurisdiction.
(b) There are no ongoing examinations or claims against Impact
for taxes, and no notice of any audit, examination or claim for
taxes, whether pending or threatened, has been received. Impact
has not waived or extended the statute of limitations with
respect to the collection or assessment of any tax.
3.14. Full Disclosure.
All documents provided to the Purchaser by Impact are pursuant
to the Securities Exchange Act of 1934, as amended, since
October 1, 2005 ("Impact Exchange Act Documents") (i) were
prepared in accordance with the requirements of the Exchange Act
and the rules and regulations thereunder, (ii) did not at the
time they were stating or contain any untrue statement of a
material fact, and (iii) did not at the time they were stating
or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading. The Impact Exchange Act
Documents do not omit to state a material fact necessary to make
the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as any of
such documents relate to Impact, as to which Impact makes no
representation. So far as Impact or the Shareholder are aware,
from the date as of which information is given in the most
recent report filed by Impact under the Exchange Act to the date
of this Agreement, there has not been any material adverse
change in, or any adverse development which materially affects,
the business, results of operations, or financial condition of
Impact and its subsidiaries taken as a whole.
3.15. Financial Statements.
The audited financial statements and unaudited interim financial
statements of Impact included in Impact's filings under the
Exchange Act (collectively, "Impact Financial Statements") (a)
were prepared in accordance with and accurately reflect in all
material respects, Impact's books and records as of the times
and for the periods referred to therein, (b) complied in all
material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect
thereto in effect during the periods included and (c) fairly
present in all material respects, in conformity with United
States generally accepted accounting principles applied on a
consistent basis during the periods involved (except as may be
indicated in the notes thereto and except in the unaudited
financial statements as may be submitted), the consolidated
financial position of Impact and its consolidated subsidiaries
as of the dates thereof and their consolidated results of
operations and cash flows for the periods then ended (subject to
normal year end adjustments in the case of any unaudited interim
financial statements which were not and are not expected to be
material to Impact).
3.16. Other Stockholders.
Impact has not entered into any agreement with any holders of
Impact Shares, other than this Agreement with the Shareholder,
with respect to the acquisition of Impact Shares by Purchaser.
4. Representations and Warranties of Purchaser.
Purchaser hereby represents and warrants to Impact as follows:
4.1 Validity of Transaction.
Purchaser has all requisite power and authority to execute,
deliver, and perform this Agreement. All necessary corporate
proceedings of Purchaser have been duly taken to authorize the
execution, delivery, and performance of this Agreement. This
Agreement has been duly authorized, executed, and delivered by
Purchaser, is the legal, valid, and binding obligation of
Purchaser, and is enforceable as to Purchaser in accordance with
its terms, except as may be limited by bankruptcy, insolvency,
moratorium, or other similar laws affecting creditors' rights
generally, and subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding
in equity or at law). No consent, authorization, approval,
order, license, certificate, or permit of or from, or
declaration or filing with, any federal, state, local, or other
governmental authority or of any court or other tribunal is
required by Purchaser for the execution, delivery, or
performance of this Agreement by Purchaser, except as would not
affect the ability of Purchaser to perform any of its material
obligations under this Agreement. No consent of any party to
any contract, agreement, instrument, lease, license,
arrangement, or understanding to which Purchaser is a party, or
by which any of its properties or assets is bound, is required
for the execution, delivery, or performance by Purchaser of this
Agreement, except for such consents as have been obtained at or
prior to the date of this Agreement, and except as would not
affect the ability of Purchaser to perform any of its material
obligations under this Agreement. The execution, delivery, and
performance of this Agreement by Purchaser will not violate,
result in a breach of, conflict with, or (with or without the
giving of notice or the passage of time or both) entitle any
party to terminate or call a default under any contract,
agreement, instrument, lease, license, arrangement, or
understanding to which Purchaser is a party, or violate or
result in a breach of any term of the Articles of Incorporation
or By-laws of Purchaser, or violate, result in a breach of, or
conflict with any law, rule, regulation, order, judgment, or
decree binding on Purchaser or to which any of its operations,
business, properties, or assets is subject, except as would not
affect the ability of Purchaser to perform any of its material
obligations under this Agreement.
4.2 Finder or Broker.
Neither Purchaser nor any person acting on behalf of Purchaser
has negotiated with any finder, broker, intermediary, or similar
person in connection with the transaction contemplated herein.
4.3. Accredited Investor.
Purchaser is an "accredited investor," as that term is defined
in Rule 501 of Regulation D promulgated under the Securities Act.
4.4 Investment Intent.
Purchaser is acquiring the Shares for its own account for
investment and not with a view to, or for sale in connection
with, any public distribution thereof in violation of the
Securities Act, it being understood that Purchaser has the right
to sell such shares in its sole discretion in accordance with
the requirements of the minimum one (1) year hold period under
Rule 144. Purchaser understands that the Shares, as of Closing,
have not been registered for sale under the Securities Act or
qualified under applicable state securities laws and that the
Shares shall be delivered to Purchaser pursuant to one or more
exemptions from the registration or qualification requirements
of such securities laws and that the representations and
warranties contained in this section are given with the
intention that Purchaser may rely thereon for purposes of
claiming such exemptions. Purchaser understands that the Shares
cannot be sold unless registered under the Securities Act and
qualified under state securities laws, or unless an exemption
from such registration and qualification is available.
4.5. Transfer of Shares.
Purchaser shall not sell or otherwise dispose of any Shares
unless (a) a registration statement with respect thereto has
become effective under the Securities Act and such shares have
been qualified under applicable state securities laws or (b)
such registration and qualification are not required and, if
Impact so requests, there is presented to Impact a legal opinion
reasonably satisfactory to Impact to such effect. Purchaser
consents that the transfer agent for the Shares may be
instructed not to transfer any Shares acquired pursuant hereto
unless it receives satisfactory evidence of compliance with the
foregoing provisions, and that there may be endorsed upon any
certificate representing the Shares acquired pursuant hereto
(and any certificates issued in substitution therefor) the
following legend calling attention to the foregoing restrictions
on transferability and stating in substance:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR QUALIFICATION
UNDER THE BLUE SKY LAWS OF ANY JURISDICTION. SUCH
SECURITIES MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR
OTHERWISE DISPOSED OF, BENEFICIALLY OR ON THE RECORDS OF
THE CORPORATION, UNLESS THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
AND QUALIFIED UNDER APPLICABLE BLUE SKY LAWS, OR AN
EXEMPTION FROM SUCH REGISTRATION AND QUALIFICATION IS AVAILABLE."
Impact shall, upon the request of any holder of a certificate
bearing the foregoing legend and the surrender of such
certificate, issue a new certificate without such legend if (i)
the security evidenced by such certificate has been effectively
registered under the Securities Act and qualified under any
applicable state securities law and sold by the holder thereof
in accordance with such registration and qualification or (ii)
such holder shall have delivered to Impact a legal opinion
reasonably satisfactory to Impact to the effect that the
restrictions set forth herein are no longer required or
necessary under the Securities Act or any applicable state law.
4.6. Purchaser's Corporate Existence.
Purchaser is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Nevada and
has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to
carry on its business as now conducted. Purchaser is duly
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where such qualification is
necessary, except for those jurisdictions where failure to be so
qualified would not, individually or in the aggregate, be
materially adverse to the business of Purchaser. Purchaser is
not in violation of any of the provisions of its Articles of
Incorporation or its Bylaws.
4.7. Litigation.
There is no action, suit, investigation or proceeding (or to
Purchaser's knowledge any basis therefor) pending against, or to
the knowledge of Purchaser, threatened against or affecting,
Purchaser or any Purchaser Subsidiary or any of their respective
properties before any court or arbitrator or any governmental
body, agency or official which, individually or in the
aggregate, if determined or resolved adversely in accordance
with the plaintiff's demands, could reasonably be expected to
have a material adverse effect on the business, results of
operations, or financial condition of Purchaser and its
subsidiaries taken as a whole or which in any manner challenges
or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated by this Agreement.
4.8. Compliance with Laws and Court Orders.
(a) Neither Purchaser nor any Purchaser Subsidiary is in
violation of, and has not violated, and to the knowledge of
Purchaser is not under investigation with respect to and has not
been threatened to be charged with or given notice of any
violation of, any applicable law, rule, regulation, judgment,
injunction, order or decree, except for violations that have not
had and could not reasonably be expected to have, individually
or in the aggregate, a material adverse effect on the business,
results of operations or financial condition of Purchaser and
its subsidiaries taken as a whole.
(b) Each executive officer and director of Purchaser has
complied with all applicable laws in connection with or relating
to actions within the scope of Purchaser's business, except
where the failure to comply would not be material to Purchaser.
No executive officer or director of Purchaser is a party to or
the subject of any pending or threatened suit, action,
proceeding or investigation by any governmental entity that
would have a material adverse effect on the business, results of
operations or financial condition of Purchaser and its
subsidiaries taken as a whole, except as disclosed in Purchaser
Exchange Act Documents.
4.9. No Undisclosed Material Liabilities.
There are no liabilities of Purchaser or any Purchaser
Subsidiary of any kind whatsoever, whether accrued, contingent,
absolute, determined or determinable, and no existing condition,
situation or set of circumstances which could reasonably result
in such a liability, other than:
(a) liabilities recorded in full or reserved for in the
unaudited financial statements included in the Purchaser
Exchange Act Documents filed with respect to the fiscal period
ended March 31, 2006 ("Purchaser Balance Sheet Date"); and
(b) liabilities incurred in the ordinary course of the business
of Purchaser consistent with past practice since the Purchaser
Balance Sheet Date, none of which has or may reasonably be
expected to have, individually or in the aggregate, a material
adverse effect on the business, results of operations, or
financial condition of Purchaser and its subsidiaries taken as a
whole.
5. Survival Of Representations and Warranties; Indemnification;
5.1. Nature and Survival. The covenants, representations and
warranties of the parties hereunder and all documents delivered
pursuant hereto shall survive the Closing for a period of twelve
months following the Closing and all inspections, examinations
or audits on behalf of the parties whether conducted before or
after the Closing.
5.2. Shareholder Indemnification.
(a) The Shareholder agrees to indemnify and hold harmless
Purchaser against any and all Damages. "Damages," as used
herein, shall include any claim, action, demand, loss, cost,
expense, liability (joint or several), penalty and other damage,
including, without limitation, reasonable counsel fees and other
costs and expenses reasonably incurred in investigation or in
attempting to avoid the same or oppose the imposition thereof or
in enforcing this indemnity, resulting to Purchaser from (i) any
inaccurate representation made by or on behalf of Impact or the
Shareholder in this Agreement or any certificate or other
document referenced in, this Agreement and delivered pursuant
hereto, (ii) the breach of any of the warranties or agreements
made by or on behalf of Impact or the Shareholder in this
Agreement or any certificate or other document referenced in
this Agreement and delivered pursuant hereto, or (iii) the
breach or default in the performance by the Shareholder of any
of the obligations to be performed hereunder. The Shareholder
agrees to pay or reimburse Purchaser for any payment made or
amount payable or loss suffered or incurred by Purchaser at any
time from and after the Closing in respect of any Damages to
which the foregoing indemnity relates.
(b) If any claim shall be asserted against Purchaser by a third
party for which Purchaser intends to seek indemnification from
the Shareholder under this Section, Purchaser shall given
written notice to the Shareholder of the nature of the claim
asserted within forty-five (45) days after any executive officer
of Purchaser learns of the assertion thereof and determines that
Purchaser may have a right of indemnification with respect
thereto, but the failure to give this notice will not relieve
the Shareholder of any liability hereunder in respect of this
claim. Purchaser shall have the exclusive right to conduct,
through counsel of its own choosing, which counsel is approved
by the Shareholder (which approval may not be unreasonably
withheld), the defense of any such claim or action, and may
compromise or settle such claims or actions with the prior
consent of the Shareholder (which shall not be unreasonably
withheld).
5.3. Purchaser Indemnification.
(a) Purchaser shall indemnify and hold the Shareholder harmless
against and in respect of all Shareholder Damages. "Shareholder
Damages" shall mean any claim, action, demand, loss, cost,
expense, liability (joint or several), penalty and other damage,
including, without limitation, reasonable counsel fees, and
other costs and expenses reasonably incurred in investigating or
in attempting to avoid the same or oppose the imposition thereof
or in enforcing this indemnity, resulting to a Shareholder from
(i) any inaccurate representation made by Purchaser in this
Agreement or any certificate or other document referenced in
this Agreement and delivered by it pursuant hereto, (ii) breach
of any of the warranties or agreements made by Purchaser in this
Agreement or any certificate or other document referenced in
this Agreement and delivered by it pursuant hereto, or (iii)
breach or default in the performance by Purchaser of any of the
obligations to be performed by Purchaser hereunder. Purchaser
agrees to pay or reimburse the Shareholder for any payment made
or amount payable or loss suffered or incurred by the
Shareholder at any time from and after the Closing in respect of
any Shareholder Damages to which the foregoing indemnity relates.
(b) If any claim shall be asserted against the Shareholder by a
third party for which the Shareholder intends to seek
indemnification from Purchaser under this Section, the
Shareholder shall given written notice to Purchaser of the
nature of the claim asserted within forty-five (45) days after
the Shareholder learns of the assertion thereof and determines
that the Shareholder may have a right of indemnification with
respect thereto, but the failure to give this notice will not
relieve Purchaser of any liability hereunder in respect of this
claim. The Shareholder shall have the exclusive right to
conduct, through counsel of its own choosing, which counsel is
approved by Purchaser (which approval may not be unreasonably
withheld), the defense of any such claim or action, and may
compromise or settle such claims or actions with the prior
consent of Purchaser (which shall not be unreasonably withheld).
6. Covenants of Shareholder.
6.1. Fulfillment of Closing Conditions.
At and prior to the Closing, the Shareholder shall cause Impact
to use commercially reasonable efforts to fulfill the conditions
specified in this Agreement. In connection with the foregoing,
the Shareholder shall (a) refrain from any actions that would
cause any of their representations and warranties to be
inaccurate in any material respect as of the Closing, (b)
execute and deliver the applicable agreements and other
documents referred to herein, (c) comply in all material
respects with all applicable laws in connection with its
execution, delivery and performance of this Agreement and the
transactions, (d) use commercially reasonable efforts to obtain
in a timely manner all necessary waivers, consents and approvals
required under any laws, contracts or otherwise, and (e) use
commercially reasonable efforts to take, or cause to be taken,
all other actions and to do, or cause to be done, all other
things reasonably necessary, proper or advisable to consummate
and make effective as promptly as practicable the transactions.
6.2. Access to Information.
From the date of this Agreement to the Closing, the Shareholder
shall give to The Shareholder and its officers, employees,
counsel, accountants and other representatives access to and the
right to inspect, during normal business hours, all of the
assets, records, contracts and other documents relating to
Impact as the other party may reasonably request. Purchaser
shall not use such information for purposes other than in
connection with the transactions contemplated by this Agreement.
6.3. No Solicitation.
From and after the date hereof until the earlier of the
Termination Date or the date of termination of this Agreement
pursuant to Section 12, without the prior written consent of the
Purchaser, the Shareholder shall not, and shall not authorize or
permit their representatives to, directly or indirectly,
solicit, initiate or encourage (including by way of furnishing
information) or take any other action to facilitate knowingly
any inquiries or the making of any proposal that constitutes or
may reasonably be expected to lead to an Acquisition Proposal
(defined below) from any person, or engage in any discussion or
negotiations relating thereto or accept any Acquisition
Proposal. If the Shareholder receive any such inquiries, offers
or proposals, the Shareholder shall (a) notify Purchaser orally
and in writing of any such inquiries, offers or proposals
(including the terms and conditions of any such proposal and the
identity of the person making it), within forty-eight (48) hours
of the receipt thereof, (b) keep Purchaser informed of the
status and details of any such inquiry, offer or proposal, and
(c) give Purchaser five days' advance notice of any agreement to
be entered into with, or any information to be supplied to, any
person making such inquiry, offer or proposal. As used herein,
"Acquisition Proposal" means a proposal or offer (other than
pursuant to this Agreement) for a tender or exchange offer,
merger, consolidation or other business combination involving
any or any proposal to acquire in any manner a substantial
equity interest in, or all or substantially all of the assets of
Impact. Notwithstanding the foregoing, the Shareholder shall
remain free to participate in any discussions or negotiations
regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner, any effort or
attempt by any person to do or seek any of the foregoing to the
extent their fiduciary duties may require.
6.4. Confidentiality.
The Shareholder agree that after receipt (a) all information
received by it pursuant to this Agreement and (b) any other
information that is disclosed by Purchaser to it shall be
considered confidential information until such time as such
information otherwise becomes publicly available. Each party
further agrees that it shall hold all such confidential
information in confidence and shall not disclose any such
confidential information to any third party except as required
by law or regulation (including the listing rules); provided
that to the extent possible Purchaser shall have been provided
with reasonable notice and the opportunity to seek a protective
order to the extent possible prior to such disclosure, other
than its counsel or accountants nor shall it use such
confidential information for any purpose other than its
investment in Purchaser; provided, however, that the foregoing
obligation to hold in confidence and not to disclose
confidential information shall not apply to any information that
(1) was known to the public prior to disclosure by Purchaser,
(2) becomes known to the public through no fault of Impact, (3)
is disclosed to Impact on a non-confidential basis by a third
party having a legal right to make such disclosure or (4) is
independently developed by Impact.
6.5. Transfer of Assets and Business.
The Shareholder shall, and shall cause Impact to, take such
reasonable steps as may be necessary or appropriate, in the
judgment of Purchaser, so that Purchaser shall be placed in
actual possession and control of all of the assets and the
business of Impact, and Impact shall be owned and operated as a
wholly owned subsidiary of Purchaser.
6.6. Disclosure of Fundraising.
The Shareholder shall disclose to Purchaser any fund raising
activities, which shall occur prior to the Closing. Further,
the Shareholder shall assure that all regulations, rules and
laws governing such fundraising are complied with and that such
funds will only be used in the furtherance of Impact's corporate
purpose and business plan. Prior written approval of Purchaser
is required to use funds for any other purposes.
7. Covenants of Purchaser.
7.1. Fulfillment of Closing Conditions.
At and prior to the Closing, Purchaser shall use commercially
reasonable efforts to fulfill the conditions specified in this
Agreement to the extent that the fulfillment of such conditions
is within its control. In connection with the foregoing,
Purchaser shall (a) refrain from any actions that would cause
any of its representations and warranties to be inaccurate in
any material respect as of the Closing, (b) execute and deliver
the applicable agreements and other documents referred to
herein, (c) comply in all material respects with all applicable
laws in connection with its execution, delivery and performance
of this Agreement and the transactions, (d) use commercially
reasonable efforts to obtain in a timely manner all necessary
waivers, consents and approvals required under any laws,
contracts or otherwise, and (e) use commercially reasonable
efforts to take, or cause to be taken, all other actions and to
do, or cause to be done, all other things reasonably necessary,
proper or advisable to consummate and make effective as promptly
as practicable the transactions.
7.2. Access to Information.
From the date of this Agreement to the Closing, Purchaser shall
cause Purchaser to give to the Shareholder and their employees,
counsel, accountants and other representatives access to and the
right to inspect, during normal business hours, all of the
assets, records, contracts and other documents relating to
Purchaser as the other party may reasonably request. The
Shareholder shall not use such information for purposes other
than in connection with the transactions contemplated by this
Agreement.
7.3. Confidentiality.
Purchaser agrees that after receipt (a) all information received
by it pursuant to this Agreement and (b) any other information
that is disclosed by the Shareholder to it shall be considered
confidential information until such time as such information
otherwise becomes publicly available. Each party further agrees
that it shall hold all such confidential information in
confidence and shall not disclose any such confidential
information to any third party except as required by law or
regulation (including the listing rules); provided that to the
extent possible the Shareholder shall have been provided with
reasonable notice and the opportunity to seek a protective order
to the extent possible prior to such disclosure, other than its
counsel or accountants nor shall it use such confidential
information for any purpose other than its investment in Impact;
provided, however, that the foregoing obligation to hold in
confidence and not to disclose confidential information shall
not apply to any information that (1) was known to the public
prior to disclosure by Purchaser, (2) becomes known to the
public through no fault Purchaser, (3) is disclosed to Purchaser
on a non-confidential basis by a third party having a legal
right to make such disclosure or (4) is independently developed
by Purchaser.
7.4. Disclosure of Fundraising.
Purchaser shall disclose to Impact any fund raising activities,
which shall occur prior to the Closing. Further, Purchaser
shall assure that all regulations, rules and laws governing such
fundraising are complied with and that such funds will only be
used in the furtherance of Purchaser's corporate purpose and
business plan. Prior written approval of the Shareholder shall
be required to use funds for any other purposes.
8. Mutual Covenants.
8.1. Disclosure of Certain Matters. The Shareholder on the one
hand, and Purchaser, on the other hand, shall give Purchaser and
the Shareholder, respectively, prompt notice of any event or
development that occurs prior to the Closing that (a) had it
existed or been known on the date hereof would have been
required to be disclosed by such party under this Agreement, (b)
would cause any of the representations and warranties of such
party contained herein to be inaccurate or otherwise misleading,
except as contemplated by the terms hereof, or (c) gives any
such party any reason to believe that any of the conditions set
forth in this Agreement will not be satisfied prior to the
Termination Date.
8.2. Public Announcements. The Shareholder and Purchaser shall
consult with each other before issuing any press release or
making any public statement with respect to this Agreement and
the transactions and, except as may be required by applicable
law or regulation, a party hereto shall not issue any such press
release or make any such public statement without the consent of
the other party hereto.
8.3. Confidentiality. If the transactions are not consummated,
each party shall treat all information obtained in its
investigation of another party or any affiliate thereof, and not
otherwise known to them or already in the public domain, as
confidential and shall not use or otherwise disclose such
information to any third party except as required by law or
regulation (including the listing rules), and shall return to
such other party or affiliate all copies made by it or its
representatives of confidential information provided by such
other party or affiliate.
9. Conditions Precedent to Obligations of Impact.
All obligations of Impact to consummate the Transactions are subject
to the satisfaction prior thereto of each of the following conditions:
9.1. Representations and Warranties.
The representations and warranties of Purchaser contained in
this Agreement shall be true and correct on the date hereof and
(except to the extent such representations and warranties speak
as of an earlier date) shall also be true and correct on and as
of the Closing with the same force and effect as if made on and
as of the Closing.
9.2. Agreements, Conditions and Covenants.
Purchaser shall have performed or complied with all agreements,
conditions and covenants required by this Agreement to be
performed or complied with by it on or before the Closing.
9.3. Legality.
No law or court order shall have been enacted, entered,
promulgated or enforced by any court or governmental authority
that is in effect and has the effect of making the purchase and
sale of the assets illegal or otherwise prohibiting the
consummation of such purchase and sale.
10. Conditions Precedent to Obligations of Purchaser.
All obligations of Purchaser to consummate the transactions are
subject to the satisfaction (or waiver) prior thereto of each of the
following conditions:
10.1. Representations and Warranties.
The representations and warranties of the Shareholder contained
in this Agreement shall be true and correct on the date hereof
and (except to the extent such representations and warranties
speak as of an earlier date) shall also be true and correct on
and as of the Closing, except for changes contemplated by this
Agreement, with the same force and effect as if made on and as
of the Closing.
10.2. Agreements, Conditions and Covenants.
The Shareholder shall have performed or complied in all material
respects with all agreements, conditions and covenants required
by this Agreement to be performed or complied with by them on or
before the Closing.
10.3. Legality.
No law or court order shall have been enacted, entered,
promulgated or enforced by any court or governmental authority
that is in effect and (a) has the effect of making the purchase
and sale of the assets illegal or otherwise prohibiting the
consummation of such purchase and sale or (b) has a reasonable
likelihood of causing a material adverse effect.
11. Post-Closing Obligations.
11.1. Audit. The Shareholder shall cause an audit of Impact
to be completed within sixty (60) days of the Closing to comply
with applicable provisions of Regulation S-X in connection with
the acquisition of one company by another.
11.2. SEC Filings.
The Shareholder shall assist the Purchaser to file with the SEC
within the time prescribed by the applicable rules, all
necessary forms with respect to the transfer of the Shares from
his name to that of Purchaser. Conversely, Purchaser shall file
all form within the prescribed times with respect to the
acquisition of the Shares.
12. Termination
12.1. Grounds for Termination.
This Agreement may be terminated at any time before the Closing:
(a) By mutual written consent of the Shareholder and Purchaser;
(b) By the Shareholder or Purchaser if the Closing shall not
have been consummated on or before the Termination Date;
provided, however, that the right to terminate this Agreement
shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before the
Termination Date;
(c) By the Shareholder or Purchaser if a court of competent
jurisdiction or governmental, regulatory or administrative agency
or commission shall have issued a court order (which court order
the parties shall use commercially reasonable efforts to lift)
that permanently restrains, enjoins or otherwise prohibits the
transactions, and such court order shall have become final and
non-appealable;
(d) By Purchaser, if the Shareholder shall have breached, or
failed to comply with, any of its obligations under this
Agreement or any representation or warranty made by the
Shareholder shall have been incorrect when made, and such breach,
failure or misrepresentation is not cured within twenty (20) days
after notice thereof, including failure to keep the Purchaser
current in its filings and honor existing agreements; and
(e) By the Shareholder, if Purchaser shall have breached, or
failed to comply with any of its obligations under this Agreement
or any representation or warranty made by it shall have been
incorrect when made, and such breach, failure or
misrepresentation is not cured within twenty (20) days after
notice thereof, and in either case, any such breaches, failures
or misrepresentations, individually or in the aggregate, results
or would reasonably be expected to affect materially and
adversely the benefits to be received by the Shareholder hereunder.
12.2. Effect of Termination.
If this Agreement is terminated pursuant to Section 12.1, the
agreements contained in Section 8.3 shall survive the
termination hereof and any party may pursue any legal or
equitable remedies that may be available if such termination is
based on a breach of another party.
13. General Matters.
13.1. Entire Agreement; Amendment
This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and
thereof. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject
matter hereof and thereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to
herein and therein. This Agreement may be amended, modified or
supplemented only by a written instrument duly executed by each of
the parties hereto.
13.2. Benefits; Successors.
This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective heirs, legal
representatives, successors and permitted assigns of the
parties. Nothing in this Agreement shall confer any rights upon
any person other than the Shareholder and Purchaser and their
respective heirs, legal representatives, successors and
permitted assigns.
13.3. Assignment; Waiver.
No party hereto shall assign this Agreement or any right,
benefit or obligation hereunder. Any term or provision of this
Agreement may be waived at any time by the party entitled to the
benefit thereof by a written instrument duly executed by such
party. However, failure of any party to exercise any right or
remedy under this Agreement or otherwise, or delay by a party in
exercising such right or remedy, shall not operate as a waiver
thereof.
13.4. Further Assurances.
At and after the Closing, the Shareholder and Purchaser shall
execute and deliver any and all documents and take any and all
other actions that may be deemed reasonably necessary by their
respective counsel to complete the transactions.
13.5. Interpretation.
Unless the context of this Agreement clearly requires otherwise,
(a) references to the plural include the singular, the singular
the plural, the part the whole, (b) references to any gender
include all genders, (c) "or" has the inclusive meaning
frequently identified with the phrase "and/or," (d) "including"
has the inclusive meaning frequently identified with the phrase
"but not limited to" and (e) references to "hereunder" or
"herein" relate to this Agreement. The section and other
headings contained in this Agreement are for reference purposes
only and shall not control or affect the construction of this
Agreement or the interpretation thereof in any respect. Section,
subsection, Schedule and Exhibit references are to this
Agreement unless otherwise specified. Each accounting term used
herein that is not specifically defined herein shall have the
meaning given to it under GAAP. Any reference to a party's
being satisfied with any particular item or to a party's
determination of a particular item presumes that such standard
will not be achieved unless such party shall be satisfied or
shall have made such determination in its sole or complete
discretion.
13.6. Severability.
If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability
of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in
any other jurisdiction.
13.7. Counterparts.
This Agreement may be executed in two or more counterparts, each
of which shall be binding as of the date first written above,
and all of which shall constitute one and the same instrument.
Each such copy shall be deemed an original.
13.8. Schedules.
Any items listed or described on Schedules shall be listed or
described under a caption that identifies the Sections of this
Agreement to which the item relates.
13.9. Notices.
All notices that are required or permitted hereunder shall be in
writing and shall be sufficient if personally delivered or sent
by mail, facsimile message or Federal Express or other delivery
service. Any notices shall be deemed given upon the earlier of
the date when received at, or the third day after the date when
sent by registered or certified mail or the day after the date
when sent by Federal Express to, the address or fax number set
forth below, unless such address or fax number is changed by
notice to the other party hereto:
If to Pangea Investments GmbH:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇(▇▇) ▇▇▇ ▇▇▇▇
If to Purchaser:
Andain Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
With copies to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, A Professional Law Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
13.10. Arbitration.
Any and all disputes relating to this Agreement or its breach
shall be settled by arbitration, by a single arbitrator, in
Reno, Nevada, in accordance with the then-current rules of
JAMS/Endispute; the parties waive any right they may have under
any statute or law to cause such proceeding to be transferred to
any other venue. Judgment upon the award entered by the
arbitrator may be entered in any court having jurisdiction
thereof. Costs of arbitration, including reasonable attorneys'
fees and costs incurred, as determined by the arbitrator,
together with reasonable attorneys' fees and costs incurred by
the prevailing party in court enforcement of the arbitration
award, must be paid to the prevailing party by the party
designated by the arbitrator or court. Service of the Petition
to Confirm Arbitration and written notice of the time and place
of the hearing thereon shall be in the same manner provided in
this Agreement.
Should one party either dismiss or abandon his claim or
counterclaim before hearing thereon, the other party shall be
deemed the "prevailing party" pursuant to this Agreement.
Should both parties receive judgment or award of their
respective claims, the party in whose favor the larger judgment
or award is rendered shall be deemed the "prevailing party"
pursuant to this Agreement.
13.11. Governing Law.
The laws of the State of Nevada shall govern all issues
concerning the relative rights of the Company and its
stockholders. All other questions shall be governed by and
interpreted in accordance with the laws of the State of Nevada
without regard to the principles of conflict of laws.
IN WITNESS WHEREOF, this Acquisition Agreement has been executed by
the parties hereto as of the day and year first written above.
PURCHASER
ANDAIN INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, President
SHAREHOLDER OF IMPACT
PANGEA INVESTMENTS GMBH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President