AGREEMENT CONCERNING THE EXCHANGE OF SECURITIES BY AND AMONG MAPLE MOUNTAIN PUMPKINS AND AGRICULTURE, INC. AND NOUVEAU EDUCATIONAL SYSTEMS, INC. AND THE SECURITY HOLDERS OF NOUVEAU EDUCATIONAL SYSTEMS, INC.
Exhibit
10.1
AGREEMENT
CONCERNING
THE EXCHANGE OF SECURITIES
BY
AND AMONG
MAPLE
MOUNTAIN PUMPKINS AND AGRICULTURE, INC.
AND
NOUVEAU
EDUCATIONAL SYSTEMS, INC. AND
THE
SECURITY HOLDERS OF NOUVEAU EDUCATIONAL SYSTEMS, INC.
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ARTICLE I
– Exchange of Securities
1.1 Issuance
of Securities
1.2 Exemption
from Registration
1.5 Conversion
of Debt to Equity
2.18 Indemnification 6
ARTICLE
III – Representations and Warranties of Shell
3.11 Compliance
with Laws
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3.20 Bulleting
Board Trading Status
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EXHIBITS
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Allocation of
Securities
Subscription
Agreement
Financial
Statements of Nouveau
Material
Contracts of Nouveau
Financial
Statements of Shell
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Exhibit
1.1
Exhibit
1.2
Exhibit
2.5
Exhibit
2.17
Exhibit
3.5
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AGREEMENT
THIS AGREEMENT (“Agreement”) is made
this 2nd day of March 2009, by and between Maple Mountain Pumpkins and
Agriculture, Inc., a Nevada corporation (“Shell”), Nouveau Educational Systems,
Inc., a Nevada corporation (“Nouveau”), and the security holders of Nouveau (the
“Nouveau Security Holders”) who are listed on Exhibit 1.1 hereto and have
executed Subscription Agreements in the form attached in Exhibit 1.2
hereto.
WHEREAS, Shell desires to acquire all
of the issued and outstanding common stock of Nouveau from the Nouveau Security
Holders in exchange for newly issued unregistered shares of common stock of
Shell;
WHEREAS, Nouveau desires to assist
Shell in acquiring all of the issued and outstanding common stock of Nouveau
pursuant to the terms of this Agreement; and
WHEREAS, all of the Nouveau Security
Holders, by execution of Exhibit 1.2 hereto, agree to exchange all of the
securities they hold in Nouveau for an equal number of the securities of
Shell.
NOW, THEREFORE, in consideration of the
mutual promises, covenants and representations contained herein, the parties
hereto agree as follows:
ARTICLE
I
Exchange
of Securities
1.1 Issuance of Securities.
Subject to the terms and conditions of this Agreement, Shell agrees to issue and
exchange 21,899,000 fully paid and non-assessable unregistered shares of Shell’s
$.001 par value common stock (the “Shell Shares”) for all 21,899,000 issued and
outstanding shares of the $.001 par value common stock of Nouveau
(the “Nouveau Shares”) held by the Nouveau Security Holders. All
Shell Shares will be issued directly to the Nouveau Security Holders on the date
the transaction contemplated by this Agreement closes (the “Closing Date”),
pursuant to the schedule set forth in Exhibit 1.1. Shell shall
also issue (i) options to purchase Shell common stock in the same amounts and
upon the same terms and conditions as common stock issuable upon exercise of
outstanding options issued by Nouveau, and (ii) Series A Preferred Stock in the
same amounts and upon the same terms and conditions as the Series A Preferred
Stock issued by Nouveau. The names of the persons holding the
outstanding options and the Series A Preferred Stock and the number of
outstanding options and Series A Preferred Shares are set forth in Exhibit
1.1. Nouveau shall be free to readjust ownership of the Preferred
Shares and the Nouveau Shares so long as the number of such shares shall remain
as described in Exhibit 1.1 below.
1.2 Exemption from Registration.
The parties hereto intend that all Shell common stock to be issued to the
Nouveau Security Holders shall be exempt from the registration requirements of
the Securities Act of 1933, as amended (the “Act”), pursuant to Section 4(2)
and/or Regulation D of the Act and rules and regulations promulgated thereunder,
and that each shareholder of Nouveau receiving the Shell Shares shall be an
“accredited investor” as defined in Rule 501 of Regulation D promulgated by the
Securities and Exchange Commission (the “SEC”). In furtherance
thereof, each of the Nouveau Security Holders will execute and deliver to Shell
on the Closing Date a copy of the Subscription Agreement set forth in Exhibit
1.2 hereto.
1.3 Private
Placement. Prior to the Closing Date and as a condition to
closing, Nouveau shall raise up to $3,000,000 (the “Private Placement”) through
the placement of shares of Nouveau’s common stock which will be exchanged for
Shell’s common stock based upon the issuance of one share of Shell common stock
for each $1.00 invested in Nouveau. To date, $1,899,000 has been
raised. The Shell shares so issued will be in addition to the 21,899,000 shares
of Shell common stock to be exchanged and issued hereunder and will include
shares issued subsequent to the date hereof and prior to the Closing
Date.
-1-
1.4 Shell Common Stock
Outstanding. Shell shall have 1,250,000 shares outstanding on the Closing
Date. On the Closing Date, certain Shell stockholders shall sell 25,000,000
shares to Nouveau for an aggregate of $350,000 and Nouveau shall then cancel the
Shell shares so purchased. The purchase price shall be payable at
Closing as follows: A cash payment of $75,000 and delivery of one or
more promissory notes in the aggregate amount of $275,000 (the
“Notes”). Each Note shall bear interest at 6% per annum and shall be
payable on July 1, 2010, subject to prepayment as set forth
below. Each Note shall be convertible into shares of Series A
Preferred Stock at the rate of $1.00 per share. In the event that the
Company or Nouveau raises funds through the sale of equity stock or debt
instruments prior to the maturity date of the Notes, 10% of the gross proceeds
therefrom shall be used to prepay the Notes immediately upon receipt of the
funds by the Company or Nouveau, as applicable. Accordingly,
following the closing of the Agreement, Shell shall have a total of 23,149,000
shares outstanding (excluding any additional shares of Shell to be issued to the
purchasers in the Private Placement), comprised of 21,899,000 shares held by the
Nouveau Security Holders and 1,250,000 shares retained by the original Shell
stockholders.
1.5 Conversion of Debt to Equity.
On or before the Closing Date Nouveau shall cause its control stockholder
and related entities to convert $3,934,517 of debt owed to them by Nouveau for
loans advanced by them to Nouveau into 3,934,517 shares of Nouveau Series A
Preferred Stock which Series A Preferred Stock will be convertible into Nouveau
common stock based upon a purchase price of $1.00 per share of Shell stock and
which shall be duly booked as equity on the balance sheet of
Nouveau. All such securities issued by Shell will be converted into a
like number of Series A Preferred Stock of Shell in accordance with Section 1.1
above and which shall be in addition to the 21,899,000 shares to be issued to
the Nouveau Security Holders hereunder.
ARTICLE
II
Representations
and Warranties of Nouveau
Nouveau hereby represents and warrants
to Shell that:
2.1 Organization. Nouveau is a
corporation duly organized, validly existing and in good standing under the laws
of Nevada, has all necessary corporate powers to own its properties and to carry
on its business as now owned and operated by it, and is duly qualified to do
business and is in good standing in each of the states where its business
requires qualification.
2.2 Capital. The authorized
capital stock of Nouveau consists of 50,000,000 authorized shares of $.001 par
value common stock, of which 21,899,000 shares of common stock are outstanding
and 5,000,000 shares of preferred stock of which approximately 3,934,517 shares
are or shall be outstanding pursuant to Section 1.5 above. All of the
outstanding securities of Nouveau are or will be upon issuance duly and validly
issued, fully paid and non-assessable. There are no outstanding
subscriptions, options, rights, warrants, debentures, instruments, convertible
securities (except as provided in Sections 1.3 and 1.5, above) or other
agreements or commitments obligating Nouveau to issue any additional shares of
its capital stock of any class except for five-year options issued to purchase
up to 4,500,000 shares of Nouveau common stock at $1.00 held by nine executive
officers, directors, senior managers, or general counsel of Nouveau
as designated in Exhibit 1.1.
2.3 Subsidiaries. Nouveau does
not have any subsidiaries or own any interest in any other enterprise except
Capital Pacific University, LLC. Nouveau operates its business under the name
“Nouveau University.”
2.4 Directors and Officers. The
names and titles of the directors and officers of Nouveau, or persons designated
to become directors or officers of Shell, are as follows:
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Position
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Chairman
Chief
Executive Officer, President and Director
Chief
Financial Officer
Director
Director
Director
Director
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2.5 Financial Statements. Exhibit
2.5 hereto consists of the audited financial statements of Nouveau for the year
ended March 31, 2008 (the “Nouveau Financial Statements”). The Nouveau Financial
Statements have been prepared in accordance with generally accepted accounting
principles and practices consistently followed by Nouveau throughout the periods
indicated, and fairly present the financial position of Nouveau as of the dates
of the balance sheets included in the Nouveau Financial Statements and the
results of operations for the periods indicated. There are no
material omissions or non-disclosures in the Nouveau Financial
Statements.
2.6 Absence of Changes. Except as
disclosed in the audited financial statements as of March 31, 2008 and 2007
(Exhibit 2.5) and as contemplated by this Agreement, there have not been any
material change in the financial condition or operations of
Nouveau. As used throughout this Agreement, “material”
means: Any change or effect (or development that, insofar as can be
reasonably foreseen, is likely to result in any change or effect) that causes
substantial increase or diminution in the business, properties, assets,
condition (financial or otherwise) or results of operations of a
party. Taken as a whole, material change shall not include changes in
national or international economic conditions or industry conditions generally;
changes or possible changes in statutes and regulations applicable to a party;
or the loss of employees, customers or suppliers by a party as a direct or
indirect consequence of any announcement relating to this
transaction.
2.7 Absence of Undisclosed
Liabilities. As of March 31, 2008, Nouveau did not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in the Nouveau Financial Statements.
2.8 Tax Returns. Nouveau has
filed all federal, state and local tax returns required by law and has paid all
taxes, assessments and penalties due and payable. The provisions for taxes, if
any, reflected in Exhibit 2.5 are adequate for the periods
indicated. There are no present disputes as to taxes of any nature
payable by Nouveau.
2.9 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, Shell, its legal counsel and accountants shall
have the opportunity to meet with Nouveau’s accountants and attorneys to discuss
the financial condition of Nouveau during reasonable business hours and in a
manner that does not interfere with the normal operation of Nouveau’s
business. Nouveau shall make available to Shell all books and records
of Nouveau, provided, however, that Nouveau will be under no obligation to
provide any information subject to confidentiality provisions or waive any
privilege associated with any such information.
2.10 Intellectual Property Rights.
Nouveau owns or has the right to use all trademarks, service marks, trade names,
copyrights and patents material to its business.
2.11 Compliance with Laws. To the
best of Nouveau’s knowledge, Nouveau has complied with, and is not in violation
of, applicable federal, state or local statutes, laws and regulations, including
federal and state securities laws, except where such non-compliance would not
have a material adverse impact upon its business or properties.
-3-
2.12 Litigation. Nouveau is not a
defendant in any suit, action, arbitration or legal, administrative or other
proceeding, or governmental investigation which is pending or, to the best
knowledge of Nouveau, threatened against or affecting Nouveau or its business,
assets or financial condition. Nouveau is not in default with respect
to any order, writ, injunction or decree of any federal, state, local or foreign
court, department, agency or instrumentality applicable to
it. Nouveau is not engaged in any material litigation to recover
monies due to it.
2.13 Authority. The Board of
Directors of Nouveau has authorized the execution of this Agreement and the
consummation of the transactions contemplated herein, and Nouveau has full power
and authority to execute, deliver and perform this Agreement, and this Agreement
is a legal, valid and binding obligation of Nouveau and is enforceable in
accordance with its terms and conditions. By execution of Exhibit
1.2, the Nouveau Security Holders will have agreed to and approved the terms of
this Agreement by the Closing Date.
2.14 Ability to Carry Out
Obligations. To the best of Nouveau’s knowledge, the execution and
delivery of this Agreement by Nouveau and the performance by Nouveau of its
obligations hereunder in the time and manner contemplated will not cause,
constitute or conflict with or result in (a) any breach or violation of any of
the provisions of or constitute a default under any license, indenture,
mortgage, instrument, article of incorporation, bylaw, or other agreement or
instrument to which Nouveau is a party, or by which it may be bound, nor will
any consents or authorizations of any party other than those hereto be required,
(b) an event that would permit any party to any agreement or instrument to
terminate it or to accelerate the maturity of any indebtedness or other
obligation of Nouveau, or (c) an event that would result in the creation or
imposition of any lien, charge or encumbrance on any asset of
Nouveau.
2.15 Full Disclosure. None of the
representations and warranties made by Nouveau herein or in any exhibit,
certificate or memorandum furnished or to be furnished by Nouveau, or on its
behalf, contains or will contain any untrue statement of material fact or omit
any material fact the omission of which would be misleading.
2.16 Assets. Nouveau’s assets as
of March 31, 2008 are fully included in Exhibit 2.5 and are not subject to any
claims or encumbrances except as indicated in Exhibit 2.5.
2.17 Material
Contracts. All of Nouveau’s material contracts are attached as
Exhibit 2.17. There exists no event of default or occurrence,
condition or act on the part of Nouveau or, to the knowledge of Nouveau, on the
part of any other party to any contract to which Nouveau is a party, which
constitutes or would constitute (with or without notice or lapse of time or
both) a breach of or default under any of such contracts, or cause or permit
acceleration of any obligation of Nouveau or any other party.
2.18 Indemnification. Nouveau
agrees to indemnify, defend and hold Shell and Shell’s officers and directors
harmless against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorney fees asserted by third
parties against Shell which arise out of, or result from (i) any breach by
Nouveau in performing any of its covenants or agreements under this Agreement or
in any schedule, certificate, exhibit or other instrument furnished or to be
furnished by Nouveau under this Agreement, (ii) a failure of any representation
or warranty in this Article II or (iii) any untrue statement made by Nouveau in
this Agreement.
2.19 Criminal or Civil Acts. For
the period of five years prior to the execution of this Agreement, no executive
officer, director or principal stockholder of Nouveau has been convicted of a
felony crime, filed for personal bankruptcy, been the subject of a Commission or
NASD (FINRA) judgment or decree, or is currently the subject to any
investigation in connection with a felony crime or Commission or NASD
proceeding.
2.20 Restricted
Securities. Nouveau and the Nouveau Security Holders, by
execution of this Agreement and of Exhibit 1.2, acknowledge that all of the
Shell Shares issued by Shell are restricted securities and none of such
securities may be sold or publicly traded except in accordance with the
provisions of the Act.
-4-
ARTICLE
III
Representations
and Warranties of Shell
Shell represents and warrants to
Nouveau that:
3.1 Organization. Shell is a
corporation duly organized, validly existing and in good standing under the laws
of Nevada, has all necessary corporate powers to carry on its business, and is
duly qualified to do business and is in good standing in each of the states
where its business requires qualification.
3.2 Capital. The authorized
capital stock of Shell currently consists of 500,000,000 shares of $.001 par
value common stock, of which 26,250,000 shares are currently outstanding, and,
in accordance with Section 1.4, 1,250,000 shares will be outstanding on the
Closing Date. Shell also has 5,000,000 shares of $.001 par value
preferred stock authorized and none outstanding. All of Shell’s
outstanding securities are duly and validly issued, fully paid and
non-assessable. There are no outstanding subscriptions, options, rights,
warrants, debentures, instruments, convertible securities or other agreements or
commitments obligating Shell to issue any additional shares of its capital stock
of any class except as described in Section 1.1 above; provided that the Shell
has outstanding two convertible promissory notes, each in the amount of $2,500,
and each of which will be paid in full at Closing without
conversion.
3.3 Subsidiaries. Shell does not
have any subsidiaries or own any interest in any other enterprise.
3.4 Directors and Officers.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is the sole executive officer and director of
Shell.
3.5 Financial Statements. Exhibit
3.5 hereto consists of the audited financial statements of Shell for the years
ended December 31, 2008 and 2007 (the “Shell Financial
Statements”). The Shell Financial Statements have been prepared in
accordance with generally accepted accounting principles and practices
consistently followed by Shell throughout the periods indicated, and fairly
present the financial position of Shell as of the dates of the balance sheets
included in the Shell Financial Statements and the results of operations for the
periods indicated. There are no material omissions or non-disclosures
in the Shell Financial Statements.
3.6 Absence of Changes. Since
December 31, 2008, there has not been any material change in the financial
condition or operations of Shell, except as contemplated by this
Agreement.
3.7 Absence of Undisclosed
Liabilities. As of December 31, 2008, Shell did not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in the Shell Financial Statements.
3.8 Tax Returns. Shell has filed
all federal, state and local tax returns required by law and has paid all taxes,
assessments and penalties due and payable.
3.9 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, Nouveau, its legal counsel and accountants
shall have the opportunity to meet with Shell’s accountants and attorneys to
discuss the financial condition of Shell. Shell shall make available
to Nouveau all books and records of Shell.
3.10 Intellectual Property Rights.
Shell does not have any patents, trademarks, service marks, trade names,
copyrights or other intellectual property rights.
-5-
3.11 Compliance with Laws. To the
best of Shell’s knowledge, Shell has complied with, and is not in violation of,
applicable federal, state or local statutes, laws or regulations including
federal and state securities laws.
3.12 Litigation. Shell is not a
defendant in any suit, action, arbitration, or legal, administrative or other
proceeding, or governmental investigation which is pending or, to the best
knowledge of Shell, threatened against or affecting Shell or its business,
assets or financial condition. Shell is not in default with respect
to any order, writ, injunction or decree of any federal, state, local or foreign
court, department, agency or instrumentality applicable to it. Shell
is not engaged in any material litigation to recover monies due to
it.
3.13 Authority. The sole Director
of Shell has authorized the execution of this Agreement and the transactions
contemplated herein, and Shell has full power and authority to execute, deliver
and perform this Agreement, and this Agreement is the legal, valid and binding
obligation of Shell, and is enforceable in accordance with its terms and
conditions.
3.14 Ability to Carry Out
Obligations. The execution and delivery of this Agreement by Shell and
the performance by Shell of its obligations hereunder will not cause, constitute
or conflict with or result in (a) any breach or violation of any of the
provisions of or constitute a default under any license, indenture, mortgage,
instrument, article of incorporation, bylaw or other agreement or instrument to
which Shell is a party, or by which it may be bound, nor will any consents or
authorization of any party other than those hereto be required, (b) an event
that would permit any party to any agreement or instrument to terminate it or to
accelerate the maturity of any indebtedness or other obligation of Shell, or (c)
an event that would result in the creation or imposition of any lien, charge or
encumbrance on any asset of Shell.
3.15 Full Disclosure. None of the
representations and warranties made by Shell herein, or in any exhibit,
certificate or memorandum furnished or to be furnished by Shell or on its
behalf, contains or will contain any untrue statement of material fact or omit
any material fact the omission of which would be misleading.
3.16 Assets. On the
Closing Date Shell shall have no assets or liabilities.
3.17 Material
Contracts. Shell has no material contracts.
3.18 Indemnification. Shell agrees
to indemnify, defend and hold Nouveau harmless against and in respect of any and
all claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties and reasonable
attorney fees asserted by third parties against Nouveau, which arise out of, or
result from (i) any breach by Shell in performing any of its covenants or
agreements in this Agreement or in any schedule, certificate, exhibit or other
instrument furnished or to be furnished by Shell under this
Agreement, (ii) a failure of any representation or warranty in this
Article III, or (iii) any untrue statement made by Shell in this
Agreement.
3.19 Criminal or Civil Acts. For a
period of five years prior to the execution of this Agreement, no executive
officer, director or principal stockholder of Shell has been convicted of a
felony crime, filed for personal bankruptcy, been the subject of a Securities
and Exchange Commission (“Commission”) or NASD (FINRA) judgment or decree, or is
currently the subject to an investigation in connection with any felony crime or
Commission or NASD proceeding.
3.20 Bulletin Board Trading
Status. Shell shall be in compliance with all requirements for, and its
common stock shall continue to be quoted on, the Electronic Bulletin Board on
the Closing Date, such that the common stock of Shell may continue to be so
quoted without interruption following the Closing Date.
-6-
ARTICLE
IV
Covenants
Prior to the Closing Date
4.1 Investigative Rights. Prior
to the Closing Date, each party shall provide to the other party, and such other
party’s counsel, accountants, auditors and other authorized representatives,
full access during normal business hours and upon reasonable advance written
notice to all of each party’s properties, books, contracts, commitments and
records for the purpose of examining the same. Each party shall
furnish the other party with all information concerning each party’s affairs as
the other party may reasonably request. If during the investigative
period one party learns that a representation of the other party was not
accurate, no such claim may be asserted by the party so learning that a
representation of the other party was not accurate.
4.2 Conduct of Business. Prior to
the Closing Date, each party shall conduct its business in the normal course and
shall not sell, pledge or assign any assets without the prior written approval
of the other party, except in the normal course of business. Neither
party shall amend its Articles of Incorporation or Bylaws (except as may be
described in this Agreement), declare dividends, redeem or sell stock or other
securities. Neither party shall enter into negotiations with any
third party or complete any transaction with a third party involving the sale of
any of its assets or the exchange of any of its common stock.
4.3 Confidential
Information. Each party will treat all non-public,
confidential and trade secret information received from the other party as
confidential, and such party shall not disclose or use such information in a
manner contrary to the purposes of this Agreement. Moreover, all such
information shall be returned to the other party in the event this Agreement is
terminated.
4.4 Notice of
Non-Compliance. Each party shall give prompt notice to the
other party of any representation or warranty made by it in this Agreement
becoming untrue or inaccurate in any respect or the failure by it to comply with
or satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement.
4.5 Audited Financial
Statements. Nouveau shall prepare financial statements for the
years ended March 31, 2008 and 2007, and for the nine month periods ended
December 31, 2008 and 2007. The financial statements shall be
prepared in accordance with generally accepted accounting principles and
practices consistently followed by Nouveau throughout the periods
indicated. In addition, the financial statements of Nouveau for the
years ended March 31, 2008 and 2007 shall be audited by an independent
registered public firm duly registered with the Public Company Accounting
Oversight Board. The financial statements for the years ended March
31, 2008 and 2007 and the interim financial statements for the nine-month
periods ended December 31, 2008 and 2007 shall also meet the requirements of
Article VIII of Regulation S-X. The financial statements required
pursuant to this Section 4.5 shall be completed, the audit reports issued, and
the financial statements delivered to Shell not less than one business day prior
to the Closing Date.
ARTICLE
V
Conditions
Precedent to Shell’s Performance
5.1 Conditions. Shell’s
obligations hereunder shall be subject to the satisfaction at or before the
Closing Date of all the conditions set forth in this Article V. Shell
may waive any or all of these conditions in whole or in part without prior
notice; provided, however, that no such waiver of a condition shall constitute a
waiver by Shell of any other condition of or any of Shell’s other rights or
remedies, at law or in equity, if Nouveau shall be in default of any of its
representations, warranties or covenants under this Agreement.
-7-
5.2 Accuracy of Representations.
Except as otherwise permitted by this Agreement, all representations and
warranties by Nouveau in this Agreement or in any written statement that shall
be delivered to Shell by Nouveau under this Agreement shall be true and accurate
on and as of the Closing Date as though made at that time.
5.3 Performance. Nouveau shall
have performed, satisfied and complied with all covenants, agreements and
conditions required by this Agreement to be performed or complied with by it on
or before the Closing Date.
5.4 Absence of Litigation. No
action, suit or proceeding, including injunctive actions, before any court or
any governmental body or authority, pertaining to the transaction contemplated
by this Agreement or to its consummation, shall have been instituted or
threatened against Nouveau on or before the Closing Date.
5.5 Officer’s Certificate.
Nouveau shall have delivered to Shell a certificate dated the Closing Date
signed by the Chief Executive Officer of Nouveau certifying that each of the
conditions specified in this Article has been fulfilled and that all of the
representations set forth in Article II are true and correct as of the Closing
Date.
5.6 Other Conditions. Nouveau
shall have completed the Private Placement as required under Section 1.3 and the
conversion of its debt to equity as required under Section 1.5.
ARTICLE
VI
Conditions
Precedent to Nouveau’s Performance
6.1 Conditions. Nouveau’s
obligations hereunder shall be subject to the satisfaction at or before the
Closing Date of all the conditions set forth in this Article VI. Nouveau may
waive any or all of these conditions in whole or in part without prior notice;
provided, however, that no such waiver of a condition shall constitute a waiver
by Nouveau of any other condition of or any of Nouveau’s rights or remedies, at
law or in equity, if Shell shall be in default of any of its representations,
warranties or covenants under this Agreement.
6.2 Accuracy of Representations.
Except as otherwise permitted by this Agreement, all representations and
warranties by Shell in this Agreement or in any written statement that shall be
delivered to Nouveau by Shell under this Agreement shall be true and accurate on
and as of the Closing Date as though made at that time.
6.3 Performance. Shell shall have
performed, satisfied and complied with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by it on or before
the Closing Date.
6.4 Absence of Litigation. No
action, suit or proceeding before any court or any governmental body or
authority, pertaining to the transaction contemplated by this Agreement or to
its consummation, shall have been instituted or threatened against Shell on or
before the Closing Date.
6.5 Officer’s Certificate. Shell
shall have delivered to Nouveau a certificate dated the Closing Date signed by
the Chief Executive Officer of Shell certifying that each of the conditions
specified in this Article has been fulfilled and that all of the representations
set forth in Article III are true and correct as of the Closing
Date.
6.6 Payment of Liabilities. On or
before the Closing Date, Shell shall have paid all outstanding obligations and
liabilities of Shell through the Closing Date, including obligations created
subsequent to the execution of this Agreement.
6.7 Director of Shell. On the
Closing Date, the sole Director of Shell shall resign and elect as directors the
Nouveau directors as set forth in Section 2.4. At least ten days
prior to the Closing Date, Shell shall prepare, file and mail to its
shareholders an information statement pursuant to Rule 14f-1 promulgated by the
SEC (the “Information Statement”). Nouveau shall cooperate with
counsel for Shell and shall provide information reasonably requested by Shell
for the Information Statement in a timely manner.
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6.8 Officers of Shell. On the
Closing Date, the newly constituted Board of Directors of Shell shall elect the
officers of Nouveau as set forth in Section 2.4 and Shell’s existing executive
officer shall resign.
6.9 Cancellation of Shell Common
Stock. On the Closing Date, Nouveau shall cancel the 25,000,000 shares of
common stock purchased by it from certain stockholders of Shell pursuant to
Section 1.4.
ARTICLE
VII
Closing
7.1 Closing. The closing of this
Agreement shall be held at the offices of ▇▇▇▇ ▇. Agron at any mutually
agreeable time and date on or prior to April 1, 2009, unless extended by mutual
agreement. At the closing:
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(a)
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Nouveau
shall deliver to Shell (i) copies of Exhibit 1.2 executed by the Nouveau
Security Holders, (ii) certificates representing the outstanding Nouveau
Shares duly endorsed to Shell, (iii) funds in the amount of $75,000 and
duly executed Notes for the selling stockholder(s) pursuant to Section
1.4; (iv) the officer’s certificate described in Section 5.5, (v) signed
minutes of its directors approving this Agreement;
and
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(b)
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Shell
shall deliver to the Nouveau Security Holders (i) stock certificates
representing an aggregate of 21,899,000 shares of Shell’s common stock
exchanged hereunder together with one share of Shell common stock for each
$1.00 invested in the Nouveau Private Placement, all pursuant to the
computations set forth in Exhibit 1.1 hereto, (ii) stock certificates
representing approximately 3,934,517 shares of Shell’s Series A Preferred
Stock and option grant forms representing the right to purchase up to
4,500,000 shares of Shell’s common stock for $1.00 per share, (iii) the
officer’s certificate described in Section 6.5, (iv) signed minutes of its
sole director approving this Agreement, and (v) resignations of its sole
executive officer and director pursuant to Sections 6.7 and
6.8.
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7.2 Breakup Fee. If
for any reason Nouveau is unwilling or unable to close this Agreement on or
before date set forth in Section 7.1 above, and so long as Shell is willing and
reasonably able to close, Nouveau shall pay a breakup fee of $25,000 to Shell to
cover its estimated expenses in connection with this Agreement. Upon
execution of this Agreement Nouveau shall deposit $25,000 into escrow with
counsel for Shell with instructions to release such funds to Shell in the event
closing does not occur by the date set forth in Section 7.1 above, so long as
Shell is willing and reasonably able to close. In the event that
closing occurs by such date, such funds shall be released from escrow as
designated by Shell and credited against the $350,000 payable pursuant to
Section 1.4 above.
ARTICLE
VIII
Covenants
Subsequent to the Closing Date
8.1 OTCBB Listing. Following the
Closing Date, Shell shall use its best efforts to continue Shell’s common stock
quotation on the Electronic Bulletin Board.
8.2 Form 8-K. Within four
business days of Closing, new management of Shell shall cause to be filed with
the SEC a report on Form 8-K to provide the information required pursuant to
Item 2.01 of Form 8-K, including, but not limited to, the Form 10 information
required by Item 2.01(f) and the financial statements and pro forma financial
information required by Item 9.01.
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ARTICLE
IX
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Miscellaneous
9.1 Captions and Headings. The
Article and Section headings throughout this Agreement are for convenience and
reference only and shall not define, limit or add to the meaning of any
provision of this Agreement.
9.2 No Oral Change. This
Agreement and any provision hereof may not be waived, changed, modified or
discharged orally, but only by an agreement in writing signed by the party
against whom enforcement of any such waiver, change, modification or discharge
is sought.
9.3 Non-Waiver. The failure of
any party to insist in any one or more cases upon the performance of any of the
provisions, covenants or conditions of this Agreement or to exercise any option
herein contained shall not be construed as a waiver or relinquishment for the
future of any such provisions, covenants or conditions. No waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other subsequent breach.
9.4 Time of Essence. Time is of
the essence of this Agreement and of each and every provision
hereof.
9.5 Entire Agreement. This
Agreement contains the entire Agreement and understanding between the parties
hereto and supersedes all prior agreements and understandings.
9.6 Choice of Law. This Agreement
and its application shall be governed by the laws of the state of
Nevada.
9.7 Counterparts. This Agreement
may be executed simultaneously in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
9.8 Notices. All notices,
requests, demands and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given on the date of service if
served personally on the party to whom notice is to be given, or on the third
day after mailing if mailed to the party to whom notice is to be given, by first
class mail, registered or certified, postage prepaid, and properly addressed as
follows:
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Shell:
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Maple Mountain
Pumpkins and Agriculture, Inc.
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇
▇▇▇▇▇▇▇, President
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Nouveau:
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Nouveau
Educational Systems, Inc.
▇▇▇▇▇
▇. ▇▇▇▇
▇▇.
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇
▇▇▇▇▇▇ Noone, President
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9.9 Binding Effect. This
Agreement shall inure to and be binding upon the heirs, executors, personal
representatives, successors and assigns of each of the parties to this
Agreement.
9.10 Mutual Cooperation. The
parties hereto shall cooperate with each other to achieve the purpose of this
Agreement and shall execute such other and further documents and take such other
and further actions as may be necessary or convenient to effect the transaction
described herein.
9.11 Finders. There are no finders
in connection with this transaction.
-10-
9.12 Announcements. The
parties will consult and cooperate with each other as to the timing and content
of any public announcements regarding this Agreement.
9.13 Expenses. Each party will
bear their own expenses, including legal fees incurred in connection with this
Agreement.
9.14 Survival of Representations and
Warranties. The representations, warranties, covenants and agreements of
the parties set forth in this Agreement or in any instrument, certificate,
opinion or other writing providing for in it, shall survive the Closing
Date.
9.15 Exhibits. As of the execution
hereof, the parties have provided each other with the exhibits described
herein. Any material changes to the exhibits shall be immediately
disclosed to the other party.
9.16 Termination, Amendment and
Waiver.
(a) Termination. This
Agreement may be terminated at any time prior to the Closing Date:
(1) By
mutual written consent of Nouveau and Shell;
(2) By
either Nouveau or Shell;
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(i)
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If
any court of competent jurisdiction or any governmental, administrative or
regulatory authority, agency or body shall have issued an order, decree or
ruling or taken any other action permanently enjoining, restraining or
otherwise prohibiting the transactions contemplated by this Agreement;
or
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(ii)
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If
the transaction shall not have been consummated on or before April 1,
2009.
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(3) By
Nouveau, if Shell breaches any of its representations or warranties hereof or
fails to perform in any material respect any of its covenants, agreements or
obligations under this Agreement; and
(4) By
Shell, if Nouveau breaches any of its representations or warranties hereof or
fails to perform in any material respect any of its covenants, agreements or
obligations under this Agreement.
(b) Effect of
Termination. In the event of termination of this Agreement by
either Shell or Nouveau, as provided herein, this Agreement shall forthwith
become void and have no effect, without any liability or obligation on the part
of Nouveau or Shell.
(c) Extension;
Waiver. At any time prior to the Closing Date, the parties
may, to the extent legally allowed, (a) extend the time for the performance of
any of the obligation of the other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto or waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part
of a party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. The failure
of any party to this Agreement to assert any of its rights under this Agreement
or otherwise shall not constitute a waiver of such rights.
(d) Procedure for Termination,
Amendment, Extension or Waiver. A termination of this
Agreement, an amendment of this Agreement or an extension or waiver shall, in
order to be effective, require in the case of Nouveau or Shell, action by its
respective Board of Directors.
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IN WITNESS WHEREOF, the parties have
executed this Agreement Concerning the Exchange of Securities on the date
indicated above.
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Maple
Mountain Pumpkins and
Agriculture,
Inc.
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Nouveau
Educational Systems, Inc.
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| By: | /s/ ▇▇▇ ▇▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Noone | |||
| ▇▇▇ ▇▇▇▇▇▇▇, President | ▇▇▇▇▇ ▇▇▇▇▇▇ Noone, President | |||||