PLAN AND AGREEMENT OF TRIANGULAR MERGER BETWEEN EGPI FIRECREEK, INC., ASIAN VENTURES CORP., M3 LIGHTING, INC., AND STRATEGIC PARTNERS CONSULTING, LLC.
Exhibit
2.1
PLAN
AND AGREEMENT OF TRIANGULAR MERGER
BETWEEN
ASIAN
VENTURES CORP.,
M3
LIGHTING, INC.,
AND
STRATEGIC
PARTNERS CONSULTING, LLC.
EGPI
FIRECREEK, INC., a Nevada corporation (“EGPI”), ASIAN VENTURES CORP., a Nevada
corporation (the “Subsidiary”), M3 LIGHTING, INC., a Georgia corporation (“M3”),
and STRATEGIC PARTNERS CONSULTING, L.L.C., a Georgia limited liability company
(“Strategic Partners”) hereby agree as follows:
WHEREAS,
the Subsidiary is a wholly-owned subsidiary of EGPI; and
WHEREAS,
M3 desires to merge (the “Merger”), subject to the approval of its stockholders
(the “M3 Stockholders”) with and into the Subsidiary; and
WHEREAS,
as a result of the Merger, the M3 Stockholders will receive shares of the common
stock of EGPI, par value $0.001 per share (the “EGPI Common Stock”) in exchange
for all of their shares of the common stock of M3, par value $0.01 per share
(the “M3 Common Stock”);
NOW,
THEREFORE, in consideration of the foregoing and the following mutual covenants
and agreements, the parties agree as follows:
1. Plan
Adopted. A plan of merger whereby M3 merges with and into the
Subsidiary (this “Plan of Merger”), pursuant to the provisions of Chapter 92A of
the Nevada Revised Statutes (the “NRS”), Title 14 of the Georgia Code (the
“O.C.G.A.”), and Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as
amended, is adopted as follows:
(a) M3 shall
be merged with and into the Subsidiary, to exist and be governed by the laws of
the State of Nevada.
(b) The
Subsidiary shall be the surviving corporation (the “Surviving Corporation”) and
its name shall be changed to M3 Lighting, Inc. The Surviving
Corporation will continue to be a wholly-owned subsidiary of EGPI.
(c) When this
Plan of Merger shall become effective, the separate existence of M3 shall cease
and the Surviving Corporation shall succeed, without other transfer, to all the
rights and properties of M3 and shall be subject to all the debts and
liabilities of such corporation in the same manner as if the Surviving
Corporation had itself incurred them. All rights of creditors and all
liens upon the property of each constituent entity shall be preserved
unimpaired, limited in lien to the property affected by such liens immediately
prior to the Merger.
(d) The
Surviving Corporation will be responsible for the payment of all fees and
franchise taxes of the constituent entities payable to the States of Nevada and
Georgia, if any.
(e) The
Surviving Corporation will carry on business with the assets of M3, as well as
the assets of the Subsidiary.
(f) The
Surviving Corporation will be responsible for the payment of the fair value of
shares, if any, required under Chapter 92A of the NRS and Title 14 of the
O.C.G.A.
(g) The M3
Stockholders will surrender all of their shares of the M3 Common Stock in the
manner hereinafter set forth.
1
(h) In
exchange for the shares of the M3 Common Stock surrendered by the M3
Stockholders, EGPI will issue and transfer to them on the basis hereinafter set
forth, shares of the EGPI Common Stock.
(i) A copy of
this Plan of Merger will be furnished by the Surviving Corporation, on request
and without cost, to any stockholder of any constituent
corporation.
(j) The
authorized capital stock of the Subsidiary is 10,000,000 shares of common stock,
par value $0.001 per share (the “Subsidiary Common Stock”), of which one share
is issued and outstanding.
(k) The
authorized capital stock of M3 is 100,000,000 shares of common stock, par value
$0.01 per share, of which 10,200,000 shares are issued and outstanding held by seven M3
Stockholders, all of whom are “accredited investors” as defined in the
Securities Act of 1933, as amended (the “Securities Act”).
2. Effective
Date. The effective date of the Merger (the “Effective Date”)
shall be the date of the filing of Articles of Merger for the Subsidiary and M3
in the States of Nevada and Georgia.
3. Submission to
Stockholders. This Plan of Merger shall be submitted for
approval separately to the M3 Stockholders and to EGPI, the sole stockholder of
the Subsidiary, in the manner provided by the laws of the States of Nevada and
Georgia.
4. Manner of
Exchange. On the Effective Date, the M3 Stockholders shall
surrender their stock certificates representing all of the issued and
outstanding shares of the M3 Common Stock to the Subsidiary in exchange for
certificates representing the shares of the EGPI Common Stock to which they are
entitled. In exchange, the Subsidiary shall receive all of the issued
and outstanding shares of the M3 Common Stock held by the M3
Stockholders. Following the receipt of the shares of the M3 Common
Stock by the Subsidiary, the shares of the M3 Common Stock shall be
cancelled. The one share of the Subsidiary Common Stock shall remain
issued and outstanding.
5. Basis of
Exchange. The M3 Stockholders currently own 10,200,000 shares
of the M3 Common Stock, which shares constitute all of the issued and
outstanding shares of the capital stock of M3. As a result of the
Merger, subject to adjustment as described below, the M3 Stockholders shall be
entitled to receive, in exchange for all of their M3 Common Stock, 11,934,007
shares of the EGPI Common Stock on the basis of 1.1700006 shares of the EGPI
Common Stock for each share of the M3 Common Stock held by each of the M3
Stockholders. Any fractional number of shares to be received shall be
rounded up to the nearest whole number. Following the Effective Date,
EGPI shall have 23,868,015 shares of the EGPI Common Stock issued and
outstanding, owned as follows: (a) 9,547,206 shares owned by the EGPI
Stockholders; (b) 11,934,007 shares owned by the M3 Stockholders, subject to
adjustment as described below; and (c) 2,386,802 shares owned by Strategic
Partners as described below, subject to adjustment as described
below.
Provided,
however, notwithstanding anything herein contained to the contrary, the basis of
the exchange described herein is based on a Liability Level of EGPI at the
Effective Date (hereinafter defined) of no more than $290,000. At the
$290,000 Liability Level of EGPI at the Effective Date, the M3 Stockholders will
receive 11,943,007 of the EGPI Common Stock. If the Liability Level
of EGPI at the Effective Date exceeds $290,000, the number of shares of the EGPI
Common Stock to be received by the M3 Stockholders shall be equal to 11,934,007
divided by the quotient obtained by dividing $290,000 by the actual Liability
Level of EGPI at the Effective Date. For example, if the Liability
Level of EGPI at the Effective Date is $635,000 rather than $290,000, the
quotient obtained by dividing $290,000 by $635,000 is 0.46. The
11,943,007 number of shares of the EGPI Common Stock will then be divided by
0.46 with a result of 25,943,493. Thereafter, as described below, an
additional 14,009,486 shares of the EGPI Common Stock will be issued to the M3
Stockholders, so that the M3 Stockholders will receive at total of 25,943,493
shares of the EGPI Common Stock as a result of the Merger rather than 11,934,007
shares of the EGPI Common Stock.
2
The
intent of this Agreement is that Strategic Partners shall receive shares of the
EGPI Common Stock on the Effective Date equal to 10 percent of the issued and
outstanding shares of the EGPI Common Stock at the Effective Date. If
the number of shares of the EGPI Common Stock to be received by the M3
Stockholders are increased as described below, then the number of shares of the
EGPI Common Stock to be received by Strategic Partners shall be concomitantly
increased so that Strategic Partners, following all adjustments hereunder, will
own no less than 10 percent of the issued and outstanding shares of the EGPI
Common Stock.
For
administrative purposes, on the Effective Date, the M3 Stockholders will receive
11,934,007 shares of the EGPI Common Stock. Within 120 days following
the Effective Date a determination of the Liability Level of EGPI at the
Effective Date shall be made, and if the Liability Level of EGPI at the
Effective Date is greater than $290,000, then additional shares of the EGPI
Common Stock shall immediately be issued to the M3 Stockholders as described
above. If the Liability Level of EGPI at the Effective Date is less
than $290,000, there shall be no adjustment in the shares of the EGPI Common
Stock to be received by the M3 Stockholders. As used herein, the
Liability Level of EGPI at the Effective Date shall mean all recorded
liabilities of EGPI as reflected on Schedule 15(h)
hereof, plus any unrecorded liabilities that are discovered during the 120 days
following the Effective Date.
6. Restricted
Shares. All shares of the EGPI Common Stock and the EGPI
Series C Preferred Stock (hereinafter defined) to be received by the M3
Stockholders and the shares of the EGPI Common Stock to be issued to Strategic
Partners as hereinafter described shall be restricted in their resale as
provided in the Securities Act, and shall contain a legend as required by Rule
144 promulgated under the Securities Act (“Rule 144”) which shall read as
follows:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH SHARES NOR ANY INTEREST THEREIN MAY BE OFFERED,
SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS A REGISTRATION STATEMENT
WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT.
The
restricted nature of such shares shall not be taken into account or any quoted
price of the shares on the Effective Date. Upon receipt of the EGPI
Common Stock/and or the EGPI Preferred Stock, each M3 Stockholder and Strategic
Partners shall execute a Subscription Agreement in the form attached hereto as
Attachment
A. In that regard, the M3 Stockholders and Strategic Partners
shall acknowledge that EGPI does not have any obligation to register for resale
pursuant to the Securities Act, the shares of the EGPI Common Stock/and or the
EGPI Preferred Stock to be received by them hereunder.
7. Directors and Officers of
the Surviving Corporation.
(a) Following
the Merger, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall serve as the Board of Directors of the Surviving
Corporation for a period of two years. Thereafter, the number of
directors of the Surviving Corporation shall be five members to be elected by
the stockholders of the Surviving Corporation to serve until such time as their
successors have been elected and qualified.
(b) If a
vacancy shall exist on the Board of Directors of the Surviving Corporation on
the Effective Date, such vacancy may be filled by the Board of Directors of the
Surviving Corporation as provided in the Bylaws of the Surviving
Corporation.
(c) All
persons who, on the Effective Date, are executive or administrative officers of
M3 shall be the officers of the Surviving Corporation until the Board of
Directors of the Surviving Corporation shall otherwise determine. The
Board of Directors of the Surviving Corporation may elect or appoint such
additional officers as it may deem necessary or appropriate.
8. Articles of
Incorporation. The Articles of Incorporation of the Subsidiary
existing on the Effective Date, as amended to reflect the change of name to M3
Lighting, Inc., a copy of which is attached hereto as Attachment B shall
continue in full force as the Articles of Incorporation of the Surviving
Corporation until altered, amended, or repealed as provided therein or as
provided by law.
3
9. Bylaws. The
Bylaws of the Subsidiary existing on the Effective Date, as amended to reflect
the change of name to M3 Lighting, Inc., a copy of which is attached hereto as
Attachment C
shall continue in full force as the Bylaws of the Surviving Corporation until
altered, amended, or repealed as provided therein or as provided by
law.
10. Directors and Officers of
EGPI. On the Effective Date, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇, the present four members of the Board
of Directors of M3, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇,
three of the current members of the Board of Directors of EGPI, shall serve as
the Board of Directors of EGPI for a period of two years. Thereafter,
the number of directors of EGPI shall be five members to be elected by the
stockholders of EGPI to serve until such time as their successors have been
elected and qualified. Further, on the Effective Date, the Board of
Directors of EGPI will elect ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇, Chief Executive Officer and
Chief Financial Officer, ▇▇▇▇▇▇▇ ▇▇▇▇▇, President and Chief Operating Officer,
▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Executive Vice
President, ▇▇▇▇▇▇▇ ▇. ▇▇▇, Executive Vice President of Finance, ▇▇▇▇▇ ▇. ▇▇▇,
Executive Vice President and Treasurer, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Secretary and
Controller, as the officers of EGPI, to serve until such time as their
successors have been elected and qualified, and all of the other officers of
EGPI other than such persons shall resign on the Effective
Date. Provided, however, it is understood that the Board of Directors
of EGPI may elect any persons as officers of EGPI at such time as it may
determine, and no person described in this paragraph shall have the right to
continue as an officer of EGPI beyond the period stated by the Board of
Directors of EGPI.
11. Copies of the Plan of
Merger. A copy of this Plan of Merger is on file at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal offices of M3,
and at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal offices of
EGPI and the Subsidiary. A copy of this Plan of Merger will be
furnished to any stockholder of M3, EGPI, or the Subsidiary, on written request
and without cost.
12. Additional Consideration for
the Merger. As additional consideration for the Merger, the M3
Stockholders shall receive on the Effective Date 5,000 shares of the EGPI Series
C Preferred Stock as described in Schedule 15(p)
attached hereto. It is understood, that the shares of the Series C
Preferred Stock are non-convertible and each share of the EGPI Series C
Preferred Stock has the voting rights of 21,200 shares of the EGPI Common Stock,
which means that in addition to the voting rights conferred by their shares of
the EGPI Common Stock, the M3 Stockholders will have additional voting rights of
106,000,000 shares of the EGPI Common Stock. Further, in
consideration for its services in connection with this Agreement, Strategic
Partners shall receive 2,386,802 shares of the EGPI Common Stock on the
Effective Date.
13. Conditions
Subsequent. As soon as practicable following the Effective
Date, the conditions specified in subparagraphs (a) to (d) shall have occurred,
and within one year following the Effective Date, the condition specified in
subparagraph (e) shall have occurred:
(a) There
shall be a reverse split of the outstanding shares of the EGPI Common Stock on a
one for six basis.
(b) Malibu
Holding, Inc., a Nevada corporation (a wholly-owned subsidiary of EGPI) shall
change its name to Energy Producers, Inc. (“Energy Producers”). The
Board of Directors of Energy Producers shall be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇ ▇. ▇▇▇. Following the Effective Date
all future energy opportunities presented to EGPI will be pursued through Energy
Producers.
(c) Energy
Producers will be “spun off” (the “Spin Off”), pursuant to applicable securities
laws to those persons who are the EGPI Stockholders immediately before the
Effective Date the Merger. It is anticipated that the Spin Off will
occur within two years from the Effective Date, unless the Board of Directors of
EGPI determines otherwise. Before the Spin Off, all pursuits of
Energy Producers will have to be approved by the Board of Directors of EGPI and
funded by discretionary working capital or self funded on terms acceptable by
EGPI and Energy Producers. The existing staff of EGPI and Strategic
Partners will be available to assist Energy Producers in the development and
pursuit of these opportunities.
4
(d) On the
Effective Date, Strategic Partners shall execute an Administrative Services
Agreement with EGPI to perform accounting/reporting and investor relations
service, a copy of which is attached hereto as Attachment D, with
the assistance of the existing staff of EGPI. The time used in
pursuit of Energy Producers opportunities will be accumulated and billed back
upon successful closure at reasonable and mutually agreed upon
rates.
(e) If within
one year of the Effective Date, EGPI and M3 on a consolidated basis (less the
consolidated effects, if any, of Energy Producers) have not (i) generated at
least $850,000 in revenues, or (ii) acquired an entity or entities with at least
a combined $5,000,000 in revenues, the EGPI Stockholders on the day before the
Effective Date shall be issued shares of the EGPI Common Stock, equal to five
percent of the issued and outstanding shares of the EGPI Common Stock for every
$100,000 or fraction thereof that EGPI and M3 on a consolidated basis (less the
consolidated effects, if any, of Energy Producers) fail to (x) generate at least
$850,000 in revenues or (y) acquire an entity or entities with at least a
combined $5,000,000 in revenues. For example, if after one year
following the Effective Date, there are 30,000,000 shares of the EGPI Common
Stock issued and outstanding and EGPI and M3 on a consolidated basis (less the
consolidated effects, if any, of Energy Producers) have generated only $700,000
in revenues or acquired an entity or entities with only a combined $4,000,000 in
revenues, the EGPI Stockholders on the day before the Effective Date shall
receive 1,500,000 shares of the EGPI Common Stock.
14. Representations and
Warranties of M3. Where a representation contained in this
Agreement is qualified by the phrase “to the best knowledge of M3” (or words of
similar import), such expression means that, after having conducted a due
diligence review, M3 believes the statement to be true, accurate, and complete
in all material respects. Knowledge shall not be imputed nor shall it
include any matters which such person should have known or should have been
reasonably expected to have known. M3 represents and warrants to EGPI
and the Subsidiary as follows:
(a) Power and
Authority. M3 has full power and authority to execute,
deliver, and perform this Agreement and all other agreements, certificates or
documents to be delivered in connection herewith, including, without limitation,
the other agreements, certificates and documents contemplated hereby
(collectively the “Other Agreements”).
(b) Binding
Effect. Upon execution and delivery by M3, this Agreement and
the Other Agreements shall be and constitute the valid, binding and legal
obligations of M3, enforceable against M3 in accordance with the terms hereof
and thereof, except as the enforceability hereof or thereof may be subject to
the effect of (i) any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors’ rights generally,
and (ii) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(c) Effect. Neither
the execution and delivery of this Agreement or the Other Agreements nor full
performance by M3 of its obligations hereunder or thereunder will violate or
breach, or otherwise constitute or give rise to a default under, the terms or
provisions of the Articles of Incorporation or Bylaws of M3 or, subject to
obtaining any and all necessary consents, of any contract, commitment or other
obligation of M3 or necessary for the operation of M3’s business (the
“Business”) following the Merger or any other material contract, commitment, or
other obligation to which M3 is a party, or create or result in the creation of
any encumbrance on any of the property of M3. Except as otherwise
disclosed to EGPI before the date of this Agreement and disclosed on Schedule 14(c)
attached hereto, M3 is not in violation of its Articles of Incorporation, its
Bylaws, or of any indebtedness, mortgage, contract, lease, or other agreement or
commitment.
(d) No
Consents. No consent, approval or authorization of, or
registration, declaration or filing with any third party, including, but not
limited to, any governmental department, agency, commission or other
instrumentality, will, except such consents, if any, delivered or obtained on or
prior to the Effective Date, be obtained or made by M3 prior to the Effective
Date to authorize the execution, delivery and performance by M3 of this
Agreement or the Other Agreements.
(e) Capitalization. M3
is authorized by its Articles of Incorporation to issue 100,000,000 shares of
the M3 Common Stock. There are no other shares of any class
authorized or outstanding. As of the date of this Agreement, there
are 10,200,000 shares of the M3 Common Stock duly and validly issued and
outstanding, fully paid, and non-assessable. Other than as disclosed
herein, there are no outstanding options, contracts, commitments, warrants,
preemptive rights, agreements or any rights of any character affecting or
relating in any manner to the issuance of the M3 Common Stock or other
securities or entitling anyone to acquire the M3 Common Stock or other
securities of M3.
5
(f) Stock
Ownership. On the Effective Date, M3 will have seven
stockholders, all of whom are “accredited investors” as defined in the
Securities Act, who will have good, absolute, and marketable title to 10,200,000
shares of the M3 Common Stock as described herein, which constitute 100 percent
of the issued and outstanding shares of the M3 Common Stock. M3 has
the complete and unrestricted right, power and authority to cause the Merger
pursuant to this Agreement. The delivery of the M3 Common Stock to
the Subsidiary as herein contemplated will vest in the Subsidiary good, absolute
and marketable title to the shares of the M3 Common Stock as described herein,
free and clear of all liens, claims, encumbrances, and restrictions of every
kind, except those restrictions imposed by applicable securities laws or this
Agreement.
(g) Organization and Standing of
M3. M3 is a duly organized and validly existing Georgia
corporation in good standing, with all requisite corporate power and authority
to carry on the Business as presently conducted in each of the jurisdictions
where it is currently doing business. M3 has qualified to do business
in the states reflected on Schedule 14(g)
attached hereto.
(h) Employees. M3
has no employees.
(i) Financial
Statement. M3, within 50 days following the Effective Date,
will furnish EGPI and the Subsidiary an audited consolidated balance sheet of M3
as of December 31, 2007 and December 31, 2008, and the related consolidated
statement of income and retained earnings for the period covered thereby (the
“Financial Statement”). The Financial Statement (i) will be in
accordance with the books and records of M3; (ii) fairly present the financial
condition of M3 at such date and the results of its operations for the period
therein specified; (iii) prepared in accordance with generally accepted
accounting principles applied upon a basis consistent with prior accounting
periods; and (iv) with respect to all contracts and commitments of M3, reflect
adequate reserves for all reasonably anticipated losses and costs in excess of
anticipated income. Specifically, but not by way of limitation, the
Financial Statement will disclose all of the debts, liabilities, and obligations
of any nature (whether absolute, accrued, contingent, or otherwise and whether
due or to become due) of M3 on the dates therein specified (except such debts,
liabilities, and obligations as are not required to be reflected therein in
accordance with generally accepted accounting principles).
(j) Present
Status. Since the dates reflected on the Financial Statement,
except as reflected on Schedule 14(j)
attached hereto, M3 has not (i) incurred any material obligations or material
liabilities, absolute, accrued, contingent, or otherwise, except current trade
payables; (ii) discharged or satisfied any liens or encumbrances, or paid any
obligations or liabilities, except current Financial Statement liabilities and
current liabilities incurred since the dates reflected on the Financial
Statement, in each case, in the ordinary course of business; (iii) declared or
made any stockholder payment or distribution or purchased or redeemed any of its
securities or agreed to do so; (iv) mortgaged, pledged, or subjected to lien,
encumbrance, or charge any of its assets except as shall be removed prior to or
at the Effective Date; (v) canceled any debt or claim; (vi) sold or transferred
any assets of a material value except sales from inventory in the ordinary
course of business; (vii) suffered any damage, destruction, or loss (whether or
not covered by insurance) materially affecting its properties, business, or
prospects; (viii) waived any rights of a material value; (ix) entered into any
transaction other than in the ordinary course of business. Further,
since the date reflected on the Financial Statement, except as reflected on
Schedule 14(k)
attached hereto, there has not been any change in or any event or condition
(financial or otherwise) affecting the property, assets, liabilities,
operations, or prospects of M3, other than changes in the ordinary course of its
business, none of which has (either when taken by itself or taken in conjunction
with all other such changes) been materially adverse.
(k) Tax Returns and
Audits. As of the date of this Agreement, except as reflected
on Schedule
14(k) attached hereto, M3 has duly filed all federal, state, and local
tax returns as required to be filed by it (including, but not limited to, all
payroll or other employment related tax returns), and has paid all federal,
state and local taxes, including, but not limited to all payroll and employment
taxes, required to be paid with respect to the periods covered by such
returns. Except as reflected on Schedule 14(k)
attached hereto, M3 has not been delinquent in the payment of any tax,
assessment, or governmental charge, and has not had any tax deficiencies
proposed or assessed against it and has not executed any waiver of the statute
of limitations on the assessment or collection of any tax.
6
(l) Litigation. Other
than as reflected on Schedule 14(l)
attached hereto, M3 has disclosed all litigation, arbitrations, claims,
governmental or other proceedings (formal or informal), or investigations
pending, threatened, or in prospect (or any basis therefor known to M3) with
respect to M3, or any of its business, properties, or assets prior to the
execution of this Agreement. Except as reflected on Schedule 14(l)
attached hereto, M3 is not affected by any present or threatened strike or other
labor disturbance or, to the best knowledge of M3, is any union attempting to
represent any employee of M3 as collective bargaining agent. M3 is
not in material violation of, or in material default with respect to, any law,
rule, regulation, order, judgment, or decree; nor is M3 required to take any
action in order to avoid such a violation or default.
(m) Compliance with Laws and
Regulations. Except as otherwise disclosed in Schedule 14(m)
attached hereto, to the best knowledge of M3, M3 is in material compliance, with
all laws, ordinances, codes, restrictions, regulations (environmental and
otherwise) and other legal requirements applicable to the conduct of the
Business, the noncompliance with which would be likely to have a material
adverse effect on the Business; and there are no lawsuits or proceedings pending
or, to its best knowledge, threatened with respect to the
foregoing.
(n) No
Defaults. Other than as reflected on Schedule 14(n)
attached hereto, to the best knowledge of M3, M3 is not in default under any
provision, of any lease, contract, commitment, obligation, note, bond,
debenture, mortgage, indenture, security agreement, guaranty, or other
instrument of indebtedness, and no existing condition exists which, with the
giving of notice or the passage of time, or both, would constitute such a
default, in either case, which default is or would be likely to have a material
adverse effect on the Business.
(o) Permits and
Approvals. Except as otherwise disclosed on Schedule 14(o)
attached hereto, to the best knowledge of M3, M3 has all permits and approvals
required for the conduct of the Business and is not in material default under
any permit, approval or qualification, which default is likely to have a
material adverse effect on M3 or the Business, nor is there any existing
condition which, with the giving of notice or the passage of time, or both,
would constitute such a material default; (ii) other than those items listed on
Schedule 14(o)
attached hereto, no permit, approval or qualification of any government or
governmental unit, agency, board, body or instrumentality, whether federal,
state or local, is necessary for the conduct of the Business as same has been
and is being conducted; and (iii) there is no lawsuit or proceeding pending or
threatened with respect to any of the foregoing.
(p) Properties. Except
as reflected on Schedule 14(p)
attached hereto, M3 has good and marketable title in fee simple absolute to all
real properties and good title to all other properties and assets used in its
business or owned by it (except real and other properties and assets as are held
pursuant to leases or licenses), free and clear of all liens, mortgages,
security interests, pledges, charges, and encumbrances, other than as shown on
the Financial Statement, including, but not limited to a tax lien for unpaid
real estate taxes. Moreover:
(i) No real
property owned, leased, licensed, or used by M3 lies in an area which is, or to
the best knowledge of M3 will be, subject to zoning, use, or building code
restrictions which would prohibit, and no state of facts relating to the actions
or inaction of another person or entity or their ownership, leasing, licensing,
or use of that real property in the business in which M3 is now engaged or the
business in which it contemplates engaging.
(ii) The real
and other properties and assets owned, leased, or licensed by M3 constitute all
such properties and assets which are necessary to the business of M3 as
presently conducted or as it contemplates conducting.
(q) Patents and
Trademarks. Except as reflected on Schedule 14(q)
attached hereto, to the best of the best knowledge of M3, M3 owns, possesses and
has good title to all of the copyrights, trademarks, trademark rights, patents,
patent rights, and licenses necessary in the conduct of the
Business. Except as reflected on Schedule 14(q)
attached hereto, to the best knowledge of M3, M3 is not infringing upon or
otherwise acting adversely to the rights of any person, under, or in respect to,
any copyrights, trademarks, trademark rights, patents, patent rights, or
licenses owned by any person or entity, and there is no claim or pending or
threatened action with respect thereto. M3 has the unrestricted right
to use (free and clear of any rights or claims of others) all trade secrets,
customer lists, manufacturing and other processes incident to the manufacture,
use or sale of any and all products presently sold by it.
7
(r) Compliance with
Environmental Laws. Except as otherwise disclosed on Schedule 14(r)
attached hereto, to the best knowledge of M3, M3 has not violated and is not in
violation of the Federal Clean Air Act (42 U.S.C. 7401, et seq.), Federal Water
Pollution Control Act (33 U.S.C. 1251, et seq.), the Federal Resource
Conservation and Recovery Act of 1976 (42 U.S.C. 6901, et seq.), the Federal
Comprehensive Environmental Responsibility, Clean Up and Liability Act of 1980
(42 U.S.C. 9601, et seq.), the Federal Toxic Substance Control Act of 1976 (15
U.S.C. 2601, et seq.) or any state or local laws or ordinances regulating the
subjects covered by the federal statutes identified above, including rules and
regulations thereunder. Prior to the Effective Date, M3 either
directed, participated in and/or authorized that studies of the environmental
status of M3’s properties and operations of the Business be prepared, which
studies are listed or otherwise described in Schedule 14(r) hereto
(collectively the “Studies”). The Studies, as well as those other
matters, correspondence, reports and the like disclosed in Schedule 14(r)
hereto, have been delivered to EGPI and the counsel for EGPI and environmental
consultants and are incorporated herein by reference as though set out
herein.
(s) Absence of Certain Changes
or Events. Except as otherwise disclosed on Schedule 14(s)
attached hereto, since December 31, 2008, there has not been any change in or
any event or condition (financial or otherwise) affecting the property, assets
(including cash and all accounts receivable), liabilities, operations, or
prospects of M3, other than changes in the ordinary course of its business, none
of which has (either when taken by itself or taken in conjunction with all other
such changes) been materially adverse.
(t) Purchase and Outstanding
Bids. No purchase commitments of M3 are in excess of normal,
ordinary, and usual requirements of its business, or were made at any price in
excess of the then current market price or contained terms and conditions more
onerous than those usual and customary in the industry.
(u) Insurance
Policies. There are in full force all policies of fire,
liability, and other forms of insurance pertaining to the properties and assets
of M3. Such policies are in an amount and against such losses and
risks as are generally maintained by comparable businesses, copies of which have
been delivered to EGPI upon the execution of this Agreement.
(v) Employment
Contracts. Except as disclosed in Schedule 14(v)
hereto, M3 has no employment contract, written or otherwise, with any employee
or former employee.
(w) Compliance with Laws and
Regulations. To the best knowledge of M3, M3 is in material
compliance, with all laws, ordinances, codes, restrictions, regulations and
other legal requirements applicable to the conduct of the Business, the
noncompliance with which would be likely to have a material adverse effect on
the Business; and there are no lawsuits or proceedings pending or, to its
knowledge, threatened with respect to the foregoing.
(x) No
Defaults. To the best knowledge of M3, M3 is not in default
under any provision, of any lease, contract, commitment, obligation, note, bond,
debenture, mortgage, indenture, security agreement, guaranty, or other
instrument of indebtedness, and no existing condition exists which, with the
giving of notice or the passage of time, or both, would constitute such a
default, in either case, which default is or would be likely to have a material
adverse effect on the Business.
(y) Authority to
Merge. M3 has all requisite power and authority to execute,
deliver, and perform this Agreement. All necessary corporate
proceedings of M3 have been duly taken to authorize the execution, delivery, and
performance of this Agreement by M3. This Agreement has been duly
authorized, executed and delivered by M3; is the legal, valid, and binding
obligation of M3; and is enforceable as to it in accordance with its terms
subject to any laws relating to bankruptcy or any other similar
laws.
8
No
consent, authorization, approval, order, license, certificate, or permit of or
from, or declaration of filing with, any federal, state, local, or other
governmental authority or any court or other tribunal is required by M3 for the
execution, delivery, or performance of this Agreement by M3. No
consent of any party to any contract, agreement, instrument, lease, license,
arrangement, or understanding to which M3 is a party, or to which any of its
properties or assets are subject, is required for the execution, delivery or
performance of this Agreement; and the execution, delivery, and performance of
this Agreement 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, or violate or result in a breach
of any term of the articles of incorporation (or other charter document) or
bylaws of M3 or violate, result in a breach of, or conflict with any law, rule,
regulation, order, judgment, or decree binding on M3 or to which any of its
operations, business, properties, or assets are subject.
(z) Records. The
books of account and minute books of M3 are complete and correct, and reflect
all those transactions involving its business which properly should have been
set forth in such books.
(aa) SEC
Filings. M3 has had the opportunity to review and has reviewed
all of the filings of EGPI with the SEC (the “SEC Filings”).
(bb) Representations and
Warranties True and Complete. All representations and
warranties of M3 in this Agreement and the Other Agreements are true, accurate
and complete in all material respects as of the Effective Date.
(cc) No Knowledge of
Default. M3 has no knowledge that any representations and
warranties of EGPI or the Subsidiary contained in this Agreement or the Other
Agreements are untrue, inaccurate or incomplete or that EGPI or the Subsidiary
is in default under any term or provision of this Agreement or the Other
Agreements.
(dd) No Untrue
Statements. No representation or warranty by M3 in this
Agreement or in any writing furnished or to be furnished pursuant hereto,
contains or will contain any untrue statement of a material fact, or omits, or
will omit to state any material fact required to make the statements herein or
therein contained not misleading.
(ee) Reliance. The
foregoing representations and warranties are made by M3 with the knowledge and
expectation that EGPI and the Subsidiary are placing complete reliance
thereon.
15. Representations and
Warranties of EGPI and the Subsidiary. Where a representation
contained in this Agreement is qualified by the phrase “to the best knowledge of
EGPI or the Subsidiary” (or words of similar import), such expression means
that, after having conducted a due diligence review, EGPI and the Subsidiary
believe the statement to be true, accurate, and complete in all material
respects. Knowledge shall not be imputed nor shall it include any
matters which such person should have known or should have been reasonably
expected to have known. EGPI and the Subsidiary hereby represent and
warrant to M3 as follows:
(a) Power and
Authority. EGPI and the Subsidiary have full power and
authority to execute, deliver and perform this Agreement and the Other
Agreements.
(b) Authorization. The
execution, delivery and performance of this Agreement and the Other Agreements
by EGPI and the Subsidiary have been duly authorized by all requisite corporate
action.
(c) Binding
Effect. Upon execution and delivery by EGPI and the
Subsidiary, this Agreement and the Other Agreements shall be and constitute the
valid, binding and legal obligations of EGPI and the Subsidiary enforceable
against them in accordance with the terms hereof or thereof, except as the
enforceability hereof and thereof may be subject to the effect of (i) any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors’ rights generally, and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
9
(d) Effect. Neither
the execution and delivery of this Agreement or the Other Agreements nor full
performance by EGPI and the Subsidiary of their obligations hereunder or
thereunder will violate or breach, or otherwise constitute or give rise to a
default under, the terms or provisions of the Articles of Incorporation or
Bylaws of EGPI or the Subsidiary or, subject to obtaining any and all necessary
consents, of any contract, commitment or other obligation of EGPI or the
Subsidiary or necessary for the operation of the business of EGPI or the
Subsidiary following the Effective Date or any other material contract,
commitment, or other obligation to which EGPI or the Subsidiary is a party, or
create or result in the creation of any encumbrance on any of the assets of EGPI
or the Subsidiary.
(e) No
Consents. No consent, approval or authorization of, or
registration, declaration or filing with any third party, including, but not
limited to, any governmental department, agency, commission or other
instrumentality, will, except such consents, if any, delivered or obtained on or
prior to the Effective Date, be obtained or made by EGPI and the Subsidiary
prior to the Effective Date to authorize the execution, delivery and performance
by EGPI and the Subsidiary of this Agreement or the Other
Agreements.
(f) Access to
Records. EGPI and the Subsidiary shall afford M3 and its
attorneys, accountants, investment bankers and other representatives access,
during normal business, to all of its business operations, properties, books,
files, and records, and will cooperate in their examination
thereof. No such examination, however, shall constitute a waiver or
relinquishment by M3 of its right to rely upon covenants, representations, and
warranties of EGPI and the Subsidiary made herein or pursuant
hereto. Until the Effective Date or the termination of this
Agreement, whichever shall occur first, and after the termination of this
Agreement in the event this Agreement does not close, M3 will hold in confidence
all information so obtained by M3 as a result of such examination.
(g) Exchange Act
Status. EGPI is a fully reporting company under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and the EGPI Common Stock
is registered under Section 12(g) of the Exchange Act. At the
Effective Date, EGPI shall be current in all of its SEC Filings as required by
the Exchange Act.
(h) Financial
Statement. EGPI has furnished M3 by means of the SEC ▇▇▇▇▇ web
site containing the SEC Filings of EGPI an audited consolidated balance sheet of
EGPI as of December 31, 2008, and the related consolidated statement of income
and retained earnings for the period covered thereby (the “EGPI Financial
Statement”). The EGPI Financial Statement (i) is in accordance with
the books and records of EGPI; (ii) fairly presents the financial condition of
EGPI at such date and the results of its operations for the period therein
specified; (iii) was prepared in accordance with generally accepted accounting
principles applied upon a basis consistent with prior accounting periods; and
(iv) with respect to all contracts and commitments of EGPI, reflects adequate
reserves for all reasonably anticipated losses and costs in excess of
anticipated income. Specifically, but not by way of limitation, the
EGPI Financial Statement discloses all of the debts, liabilities, and
obligations of any nature (whether absolute, accrued, contingent, or otherwise
and whether due or to become due) of EGPI on the dates therein specified (except
such debts, liabilities, and obligations as are not required to be reflected
therein in accordance with generally accepted accounting
principles).
The
Liability Level of EGPI at the Effective Date as disclosed on Schedule 15(h)
attached hereto shall be paid in the manner specified on Schedule
15(h).
(i) Litigation. Other
than as reflected on the SEC ▇▇▇▇▇ web site containing the SEC Filings of EGPI,
to the best of its belief and understanding, EGPI has disclosed all litigation,
arbitrations, claims, governmental or other proceedings (formal or informal), or
investigations pending, threatened, or in prospect (or any basis therefor known
to EGPI) with respect to EGPI, or any of its business, properties, or assets
prior to the execution of this Agreement. Except as reflected on the
SEC ▇▇▇▇▇ web site containing the SEC Filings of EGPI, EGPI is not affected by
any present or threatened strike or other labor disturbance or, to the best
knowledge of EGPI, is any union attempting to represent any employee of EGPI as
collective bargaining agent. To the best of its belief and
understanding, EGPI is not in material violation of, or in material default with
respect to, any law, rule, regulation, order, judgment, or decree; nor is EGPI
required to take any action in order to avoid such a violation or
default.
10
(j) Compliance with Laws and
Regulations. Except as otherwise disclosed on the SEC ▇▇▇▇▇
web site containing the SEC Filings of EGPI, to the best knowledge of EGPI, EGPI
is in material compliance, with all laws, ordinances, codes, restrictions,
regulations (environmental and otherwise) and other legal requirements
applicable to the conduct of its business, the noncompliance with which would be
likely to have a material adverse effect on its business; and there are no
lawsuits or proceedings pending or, to its best knowledge, threatened with
respect to the foregoing.
(k) Absence of Certain Changes
or Events. Except as otherwise disclosed on the SEC ▇▇▇▇▇ web
site containing the SEC Filings of EGPI, since December 31, 2008, there has not
been any change in or any event or condition (financial or otherwise) affecting
the property, assets (including cash and all accounts receivable), liabilities,
operations, or prospects of EGPI, other than changes in the ordinary course of
its business, none of which has (either when taken by itself or taken in
conjunction with all other such changes) been materially adverse.
(l) No Disputes with
Auditors. As of the date of this Agreement, neither EGPI nor
the Subsidiary has had any disputes with its auditors.
(m) Tax Returns and
Audits. As of the date of this Agreement, EGPI and the
Subsidiary have duly filed all federal, state, and local tax returns as required
to be filed by them (including, but not limited to, all payroll or other
employment related tax returns), and have paid all federal, state and local
taxes, including, but not limited to all payroll and employment taxes, required
to be paid with respect to the periods covered by such returns. EGPI
and the Subsidiary have not been delinquent in the payment of any tax,
assessment, or governmental charge, and have not had any tax deficiencies
proposed or assessed against them and have not executed any waiver of the
statute of limitations on the assessment or collection of any
tax. EGPI has delivered to M3 all tax returns of EGPI and the
Subsidiary for the last five years.
(n) Organization and Standing of
EGPI. EGPI is a duly organized and validly existing Nevada
corporation in good standing, with all requisite corporate power and authority
to carry on its business as presently conducted. EGPI has not
qualified to do business in any other state other than the State of
Arizona.
(o) Subsidiaries. EGPI
has two subsidiaries, namely, the Subsidiary, which is a duly organized and
validly existing Nevada corporation in good standing, with all requisite
corporate power and authority to carry on its business as presently conducted,
and Malibu Holding, Inc., a Nevada corporation (“Malibu Holding”), neither of
which is qualified to do business in any other state.
(p) Capitalization of
EGPI. EGPI is authorized by its Articles of Incorporation to
issue 1,300,000,000 shares of the EGPI Common Stock of which 9,547,206 shares
duly and validly issued and outstanding, fully paid, and non-assessable as of
the Effective Date, 20,000,000 shares of non-voting common stock, par value
$0.001 per share, none of which are issued or outstanding, and 60,000,000 shares
of preferred stock, par value $0.001 per share, none of which are issued or
outstanding (herein referred to as the EGPI Preferred Stock, which includes the
EGPI Series C Preferred Stock, and which have the preferences and limitations as
disclosed on Schedule
15(p) attached hereto). Other than as disclosed herein, or in
its filings on the SEC web site, there are no outstanding options, contracts,
commitments, warrants, preemptive rights, agreements or any rights of any
character affecting or relating in any manner to the issuance of the EGPI Common
Stock or other securities or entitling anyone to acquire the EGPI Common Stock
or other securities of EGPI. It is understood, that the shares of the
Series C Preferred Stock described in Schedule 15(p) and to
be issued to the M3 Stockholders hereunder are non-convertible and each share of
the Series C Preferred Stock has the voting rights of 21,200 shares of the EGPI
Common Stock.
(q) Capitalization of the
Subsidiary. The Subsidiary is authorized by its Articles of
Incorporation to issue 10,000,000 shares of the Subsidiary Common Stock, one
share of which will be duly and validly issued and outstanding, fully paid, and
non-assessable as of the Effective Date. Other than as disclosed
herein, or in its filings on the SEC web site there are no outstanding options,
contracts, commitments, warrants, preemptive rights, agreements or any rights of
any character affecting or relating in any manner to the issuance of the
Subsidiary Common Stock or other securities or entitling anyone to acquire the
Subsidiary Common Stock or other securities of the Subsidiary.
11
(r) Effect of the
Transaction. Following the Effective Date and all of the
transactions described herein, the M3 Stockholders will own 11,934,007shares of
the EGPI Common Stock, which will represent approximately 50 percent of the
issued and outstanding shares of the EGPI Common Stock. Following the
Effective Date and all of the transactions described herein, EGPI shall have
23,868,015 shares of the EGPI Common Stock issued and outstanding, owned as
follows: (a) 9,547,206 shares owned by the EGPI Stockholders; (b) 11,934,007
shares owned by the M3 Stockholders; and (c) 2,386,802 shares owned by Strategic
Partners. In addition, the M3 Stockholders will own 5,000 shares of
the EGPI Preferred Stock.
(s) Employees. As
of the Effective Date, EGPI will have no employees and the Subsidiary will have
no employees. However, Energy Producers will have three persons engaged
under month to month service agreements.
(t) No Employment
Contracts. Other than indicated in Paragraph 15(s) with
respect to Energy Producers, EGPI and the Subsidiary, as of the Effective Date,
shall have no employment contracts or agreements with any of its officers,
directors, or with any consultants, employees or other parties, other than as
disclosed in ▇▇▇▇▇ filings for EGPI through the first quarter of 2009 ended
March 31, 2009.
(u) No Benefit
Plans. EGPI and the Subsidiary have no insurance or employee
benefit plans whatsoever.
(v) No Powers of
Attorney. EGPI and the Subsidiary have no outstanding powers
or attorney and no obligations concerning its performance
hereunder.
(w) Compliance. EGPI
shall cause EGPI and the Subsidiary and their officers and employees to comply
with all applicable provisions of this Agreement.
(x) Representations and
Warranties of True and Complete. All representations and
warranties of EGPI and the Subsidiary in this Agreement and the Other Agreements
are true, accurate and complete in all material respects as of the Effective
Date.
(y) No Knowledge of
Default. EGPI and the Subsidiary have no knowledge that any of
the representations and warranties of M3 contained in this Agreement or the
Other Agreements are untrue, inaccurate or incomplete in any respect or that M3
are in default under any term or provision of this Agreement or the Other
Agreements.
(z) No Untrue
Statements. No representation or warranty by EGPI and the
Subsidiary in this Agreement or in any writing furnished or to be furnished
pursuant hereto, contains or will contain any untrue statement of a material
fact, or omits, or will omit to state any material fact required to make the
statements herein or therein contained not misleading.
(aa) Reliance. The
foregoing representations and warranties are made by EGPI and the Subsidiary
with the knowledge and expectation that M3 is placing complete reliance
thereon.
16. Conditions Precedent to
Obligations of EGPI and the Subsidiary. All obligations of
EGPI and the Subsidiary under this Agreement are subject to the fulfillment,
prior to or at the Effective Date, of the following conditions:
(a) Representations and
Warranties True at the Effective Date. The representations and
warranties of M3 herein shall be deemed to have been made again as of the
Effective Date, and then be true and correct, subject to any changes
contemplated by this Agreement. M3 shall have performed all of the
obligations to be performed by it hereunder on or prior to the Effective
Date.
(b) Proof of
Authority. The counsel for EGPI shall have received evidence
reasonably sufficient to such counsel that M3 has all requisite authorizations
necessary for consummation by M3 of the transactions contemplated hereby, and
there has not been issued, and there is not in effect, any injunction or similar
legal order prohibiting or restraining consummation of any of the transactions
herein contemplated, and no legal or governmental action, proceeding or
investigation which might reasonably be expected to result in any such
injunction or order is pending.
12
(c) No
Orders. There has not been issued, and there is not in effect,
any injunction or similar legal order prohibiting or restraining consummation of
any of the transactions herein contemplated, and no legal or governmental
action, proceeding or investigation which might reasonably be expected to result
in any such injunction or order is pending.
(d) Deliveries at the Effective
Date. M3 shall have delivered to EGPI and the Subsidiary at
the Effective Date all of the documents required to be delivered
hereunder.
(e) Certificates of Good
Standing. M3 shall have delivered to EGPI certificates or
telegrams issued by appropriate governmental authorities evidencing the good
standing of M3 as of a date not more than 1 days prior to the Effective Date, in
the State of Nevada and in each state where M3 is qualified to do
business.
(f) Opinion of
Counsel. M3 shall have delivered at the Effective Date to EGPI
an opinion of its counsel dated as of date of the Effective Date in form and
substance reasonably satisfactory to EGPI and its counsel, to the effect that
(i) M3 is a duly and validly organized and existing corporation in good standing
under the laws of the State of Nevada, and in each state where M3 may be
qualified as a foreign corporation, with full corporate power to carry on the
business in which it is engaged; (ii) the performance of this Agreement and the
consummation of the transactions contemplated herein will not result in any
breach or violation of any terms or provisions of or cause a default under the
Articles of Incorporation or Bylaws of M3 or, to M3’s said counsel best
knowledge and belief any order, rule, or regulation of any court, governmental
agency or body having jurisdiction over M3, or any of its activities,
properties, any statute, indenture, mortgage, deed of trust, lease, loan
agreement, security agreement, or other agreement or instrument known to said
counsel, to which M3 is a party or by which it is bound or to which any of its
property is subject; (iii) no provision of the Articles of Incorporation,
Bylaws, minutes or share certificates of M3 or, to M3’s said counsel’s best
knowledge and belief, any contract to which M3 is a party or otherwise bound or
affected, prevents the M3 Stockholders from delivering good, absolute, and
marketable title to the M3 Common Stock to EGPI as contemplated by this
Agreement; (iv) M3 is authorized by its Articles of Incorporation to issue
100,000,000 shares of the M3 Common Stock; (v) that as of the date of this
Agreement, there were 10,200,000 shares of the M3 Common Stock duly and validly
issued and outstanding, fully paid, and non-assessable; (vi) as of the Effective
Date, all shares of the M3 Common Stock were held by seven M3 Stockholders all
of whom are “accredited investors” as defined in the Securities Act, and subject
to the terms of the Merger as of the Effective Date; (vii) to the best knowledge
and belief of such counsel the issuance and sale of the M3 Common Stock did not
violate the Securities Act, or the rules and regulations of the SEC thereunder,
or applicable state securities or Blue Sky Laws, and that M3 has no other
authorized or outstanding series or class of capital stock or other securities;
and (viii) such counsel has no knowledge of any litigation, proceeding, or
governmental investigation or labor dispute pending or threatened against or
relating to M3, its properties or businesses, except as set forth herein or in
said opinion.
(g) Resolutions. The
counsel for EGPI shall have received certified resolutions of a meeting of the
Board of Directors of M3 and the M3 Stockholders pursuant to which this
Agreement and the transactions contemplated hereby were duly and validly
approved, adopted and ratified by the Board of Directors of M3 and the M3
Stockholders, all in form and content satisfactory to such counsel, authorizing
(i) the execution, delivery and performance of this Agreement, (ii) such other
documents and instruments as shall be necessary to consummate the transactions
contemplated hereby and thereby, and (iii) all actions to be taken by M3
hereunder.
(h) Certification. M3
shall have delivered to EGPI at the Effective Date a certificate dated as of the
Effective Date, executed by M3, certifying that the conditions specified in this
Paragraph 16 have been fulfilled.
(i) Other
Matters. All corporate and other proceedings and actions taken
in connection with the transactions contemplated hereby and all certificates,
opinions, agreements, instruments and documents mentioned herein or incident to
any such transaction shall be satisfactory in form and substance to EGPI and the
Subsidiary and their counsel, whose approval shall not be unreasonably
withheld.
13
17. Conditions Precedent to
Obligations of M3. All obligations of M3 under this Agreement
are subject to the fulfillment, prior to or at the Effective Date, of the
following conditions:
(a) Representations and
Warranties True at Effective Date. The representations and
warranties of EGPI and the Subsidiary herein shall be deemed to have been made
again at the Effective Date, and then be true and correct, subject to any
changes contemplated by this Agreement. EGPI and the Subsidiary shall
have performed all of the obligations to be performed by EGPI and the Subsidiary
hereunder on or prior to the Effective Date.
(b) Proof of
Authority. The counsel for M3 shall have received evidence
reasonably sufficient to such counsel that EGPI and the Subsidiary have all
requisite authorizations necessary for consummation by EGPI and the Subsidiary
of the transactions contemplated hereby, and there has not been issued, and
there is not in effect, any injunction or similar legal order prohibiting or
restraining consummation of any of the transactions herein contemplated, and no
legal or governmental action, proceeding or investigation that might reasonably
be expected to result in any such injunction or order is pending.
(c) SEC
Filings. EGPI shall be current in all of the SEC Filings as of
the Effective Date.
(d) No Disputes with
Auditors. As of the Effective Date, neither EGPI nor the
Subsidiary shall have had any disputes with its auditors.
(e) Proof of Election of and
Resignations. On the Effective Date, EGPI shall deliver proof
of the election of the persons selected by M3 to the Board of Directors of EGPI
and as officers of EGPI, as well as the resignations of all of those persons who
were the officers and directors of EGPI before the Effective Date and following
the election of the persons selected by M3 as described herein.
(f) Opinion of
Counsel. EGPI and the Subsidiary shall have delivered at the
Effective Date to M3 an opinion of their counsel dated as of date of the
Effective Date in form and substance reasonably satisfactory to M3 and its
counsel, to the effect that (i) each of EGPI and the Subsidiary is a duly and
validly organized and existing corporation in good standing under the laws of
the state of its organization, with full corporate power to carry on the
business in which it is engaged; (ii) the performance of this Agreement and the
consummation of the transactions contemplated herein will not result in any
breach or violation of any terms or provisions of or cause a default under the
Articles of Incorporation, as amended, or Bylaws, as amended, of EGPI or the
Subsidiary or to said counsel’s knowledge and belief, any order, rule, or
regulation of any court, governmental agency or body having jurisdiction over
EGPI or the Subsidiary or any of their activities, properties, any statute,
indenture, mortgage, deed of trust, lease, loan agreement, security agreement,
or other agreement or instrument known to said counsel, to which they are a
party or by which they are bound or to which any of their property is subject;
and (iii) no provision of the Articles of Incorporation, as amended, Bylaws, as
amended, minutes or share certificates of EGPI or the Subsidiary or, to their
said counsel’s knowledge and belief, any contract to which either EGPI or the
Subsidiary is a party or otherwise bound or affected, prevents EGPI and the
Subsidiary from performing their obligations as contemplated by this
Agreement.
(g) No
Orders. There has not been issued, and there is not in effect,
any injunction or similar legal order prohibiting or restraining consummation of
any of the transactions herein contemplated, and no legal or governmental
action, proceeding or investigation which might reasonably be expected to result
in any such injunction or order is pending.
(h) Deliveries at the Effective
Date. EGPI and the Subsidiary shall have delivered to M3 at
the Effective Date all of the documents required to be delivered
hereunder.
(i) Certificates of Good
Standing. EGPI and the Subsidiary shall have delivered to M3
certificates or telegrams issued by appropriate governmental authorities
evidencing the good standing of EGPI and the Subsidiary as of a date not more
than 10 days prior to the Effective Date, in the State of Nevada and in each
state where EGPI and the Subsidiary are qualified to do business.
14
(j) Resolutions. The
counsel for M3 shall have received certified resolutions of a meeting of the
Board of Directors of EGPI and the Subsidiary and the stockholder of the
Subsidiary pursuant to which this Agreement and the transactions contemplated
hereby were duly and validly approved, adopted and ratified by the Board of
Directors of EGPI and the Subsidiary and the stockholder of the Subsidiary, all
in form and content satisfactory to such counsel, authorizing (i) the execution,
delivery and performance of this Agreement, (ii) such other documents and
instruments as shall be necessary to consummate the transactions contemplated
hereby and thereby, and (iii) all actions to be taken by EGPI and the Subsidiary
hereunder.
(k) Certification. EGPI
and the Subsidiary shall have delivered to M3 at the Effective Date a
certificate dated as of the Effective Date, executed by EGPI and the Subsidiary,
certifying that the conditions specified in this Paragraph 17 have been
fulfilled.
(l) Other
Matters. All corporate and other proceedings and actions taken
in connection with the transactions contemplated hereby and all certificates,
opinions, agreements, instruments and documents mentioned herein or incident to
any such transaction shall be satisfactory in form and substance to M3 and its
counsel, whose approval shall not be unreasonably withheld.
18. The Nature and Survival of
Representations, Covenants and Warranties. All statements and
facts contained in any memorandum, certificate, instrument, or other document
delivered by or on behalf of the parties hereto for information or reliance
pursuant to this Agreement, shall be deemed representations, covenants and
warranties by the parties hereto under this Agreement. All
representations, covenants and warranties of the parties shall survive the
Effective Date and all inspections, examinations, or audits on behalf of the
parties, shall expire 18 months after the Effective Date.
19. Records of
M3. For a period of five years following the Effective Date,
the books of account and records of M3 pertaining to all periods prior to the
Effective Date shall be available for inspection by the M3 Stockholders for use
in connection with tax audits.
20. Destruction of
Property. If, on or before the Effective Date, any substantial
portion of the fixed assets of any of the parties hereto shall suffer a loss of
fire, flood, tornado, hurricane, riot, accident or other calamity, whether or
not insured, to such an extent that in the opinion of EGPI there will be such a
delay in repairing or replacing said assets so as to materially affect the
future operations of any such party, then the other parties hereto may, at their
sole option, terminate this Agreement without cost, expense, or liability to any
party.
21. Default by EGPI or the
Subsidiary. If M3 does not default hereunder and either of
EGPI or the Subsidiary defaults hereunder, M3 may elect to terminate this
Agreement as well as any other agreement executed by M3 in connection with the
transactions contemplated by this Agreement, including but not limited to any
independent nondisclosure agreement or any other independent agreements,
whereupon no party shall be liable to the others hereunder, or M3 may assert any
remedy, including specific performance, which M3 may have by reason of any such
default. From and after the Effective Date, subject to the terms and
provisions hereof, in the event of a breach by any party of the terms of this
Agreement or any obligation of a party which survives the Effective Date, the
non-defaulting party may assert any remedy, either at law or in equity to which
such non-defaulting party may be entitled.
22. Default by
M3. If EGPI and the Subsidiary do not default hereunder and M3
defaults hereunder, EGPI may elect to terminate this Agreement as well as any
other agreement executed by EGPI and the Subsidiary in connection with the
transactions contemplated by this Agreement, including but not limited to any
independent nondisclosure agreement or any other independent agreements,
whereupon no party shall be liable to the others hereunder, or EGPI and the
Subsidiary may assert any remedy, including specific performance, which EGPI and
the Subsidiary may have by reason of any such default of M3. From and
after the Effective Date, subject to the terms and provisions hereof, in the
event of a breach by any party of the terms of this Agreement or any obligation
of a party which survives the Effective Date, the non-defaulting party may
assert any remedy, either at law or in equity, to which such non-defaulting
party may be entitled.
23. Termination. In
the event of the termination of this Agreement prior to the Effective Date, no
party shall have any obligation to any other in connection herewith or in
connection with any other documents which may have been executed by any party
with respect to the transactions contemplated by this Agreement whether or not
such documents are described herein.
15
24. Cooperation. The
parties hereto will each cooperate with the other, at the other’s request and
any then mutually agreed expense, in furnishing information, testimony, and
other assistance in connection with any actions, proceedings, arrangements,
disputes with other persons or governmental inquiries or investigations
involving the parties hereto or the transactions contemplated
hereby.
25. Further Conveyances and
Assurances. After the Effective Date, each of the parties
hereto will, without further cost or expense to, or consideration of any nature
from any other party hereto, execute and deliver, or cause to be executed and
delivered, to the other parties, such additional documentation and instruments
of transfer and conveyance, and will take such other and further actions, as the
other parties may reasonably request as more completely to consummate the
transactions contemplated hereby.
26. Closing. The
closing of this Agreement (the “Closing”) shall be on or before May 20, 2009,
subject to acceleration or postponement from time to time as the parties hereto
may mutually agree (the “Closing Date”). The Closing of this
Agreement shall be conducted by electronic communications at 12:00 noon Pacific
time on the Closing Date, unless another hour or place is mutually agreed upon
by the parties hereto. Following the Closing Date, Articles of Merger
for the Subsidiary and M3 shall be filed with the State of Nevada as described
herein.
27. Deliveries on the Effective
Date by M3. Following the filing of Articles of Merger for the
Subsidiary and M3 as described herein, on the Effective Date or thereafter as
agreed by the parties, M3 shall deliver all documents and certifications
required to be delivered hereunder.
All
documents reflecting any actions taken, received or delivered pursuant to this
Paragraph 27 shall be reasonably satisfactory in form and substance to EGPI and
the Subsidiary and their counsel.
28. Deliveries on the Effective
Date by EGPI and the Subsidiary. Following the filing of
Articles of Merger for the Subsidiary and M3 as described herein, on the
Effective Date or thereafter as agreed by the parties, EGPI and the Subsidiary
shall deliver shall deliver all documents and certifications required to be
delivered hereunder.
All
documents reflecting any actions taken, received or delivered pursuant to this
Paragraph 28 shall be reasonably satisfactory in form and substance to M3 and
its counsel.
29. No
Assignment. This Agreement shall not be assignable by any
party without the prior written consent of the other parties, which consent
shall be subject to such party’s sole, absolute and unfettered
discretion.
30. Mediation and
Arbitration. All disputes arising or related to this Agreement
must exclusively be resolved first by mediation with a mediator selected by the
parties, with such mediation to be held in Atlanta, Georgia. If such
mediation fails, then any such dispute shall be resolved by binding arbitration
under the Commercial Arbitration Rules of the American Arbitration Association
in effect at the time the arbitration proceeding commences, except that (a)
Nevada law and the Federal Arbitration Act must govern construction and effect,
(b) the locale of any arbitration must be in Atlanta, Georgia, and (c) the
arbitrator must with the award provide written findings of fact and conclusions
of law. Any party may seek from a court of competent jurisdiction any
provisional remedy that may be necessary to protect its rights or assets pending
the selection of the arbitrator or the arbitrator’s determination of the merits
of the controversy. The exercise of such arbitration rights by any
party will not preclude the exercise of any self-help remedies (including
without limitation, setoff rights) or the exercise of any non-judicial
foreclosure rights. An arbitration award may be entered in any court
having jurisdiction.
31. Attorneys’
Fees. In the event that it should become necessary for any
party entitled hereunder to bring suit against any other party to this Agreement
for a breach of this Agreement, the parties hereby covenant and agree that the
party who is found to be in breach of this Agreement shall also be liable for
all reasonable attorneys’ fees and costs of court incurred by the other
parties. Provided, however, in the event that there has been no
breach of this Agreement, whether or not the transactions contemplated hereby
are consummated, each party shall bear its own costs and expenses (including any
fees or disbursements of its counsel, accountants, brokers, investment bankers,
and finders fees).
16
32. Benefit. All
the terms and provisions of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto, and their respective
heirs, executors, administrators, personal representatives, successors and
permitted assigns.
33. Notices. All
notices, requests, demands, and other communications hereunder shall be in
writing and delivered personally or sent by registered or certified United
States mail, return receipt requested with postage prepaid, or by telecopy or
e-mail, if to EGPI and the Subsidiary, addressed to ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier (▇▇▇) ▇▇▇-▇▇▇▇, and e-mail ▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, and
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇; and if to M3, addressed to ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, telephone (▇▇▇)
▇▇▇-▇▇▇▇, telecopier (____)
______, and email ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; and if to Strategic
Partners, addressed to ▇▇. ▇▇▇▇▇ ▇. ▇▇▇ at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ telephone (___)
____, telecopier (___)
____, and email ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇. Any party hereto may
change its address upon 10 days’ written notice to any other party
hereto.
34. Construction. Words
of any gender used in this Agreement shall be held and construed to include any
other gender, and words in the singular number shall be held to include the
plural, and vice versa, unless the context requires otherwise.
35. Waiver. No
course of dealing on the part of any party hereto or its agents, or any failure
or delay by any such party with respect to exercising any right, power or
privilege of such party under this Agreement or any instrument referred to
herein shall operate as a waiver thereof, and any single or partial exercise of
any such right, power or privilege shall not preclude any later exercise thereof
or any exercise of any other right, power or privilege hereunder or
thereunder.
36. Cumulative
Rights. The rights and remedies of any party under this
Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
37. Invalidity. In
the event any one or more of the provisions contained in this Agreement or in
any instrument referred to herein or executed in connection herewith shall, for
any reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect the other
provisions of this Agreement or any such other instrument.
38. Headings. The
headings used in this Agreement are for convenience and reference only and in no
way define, limit, amplify or describe the scope or intent of this Agreement,
and do not affect or constitute a part of this Agreement.
39. Excusable
Delay. The parties shall not be obligated to perform and shall
not be deemed to be in default hereunder, if the performance of a non-monetary
obligation required hereunder is prevented by the occurrence of any of the
following, other than as the result of the financial inability of the party
obligated to perform: acts of God, strikes, lock-outs, other industrial
disturbances, acts of a public enemy, war or war-like action (whether actual,
impending or expected and whether de jure or de facto), acts of terrorists,
arrest or other restraint of government (civil or military), blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
hurricanes, storms, floods, washouts, sink holes, civil disturbances,
explosions, breakage or accident to equipment or machinery, confiscation or
seizure by any government or public authority, nuclear reaction or radiation,
radioactive contamination or other causes, whether of the kind herein enumerated
or otherwise, that are not reasonably within the control of the party claiming
the right to delay performance on account of such occurrence.
40. No Third-Party
Beneficiary. Any agreement to pay an amount and any assumption
of liability contained in this Agreement, express or implied, shall be only for
the benefit of the undersigned parties and their respective successors and
assigns (as herein expressly permitted), and such agreements and assumptions
shall not inure to the benefit of the obligees or any other party, whomsoever,
it being the intention of the parties hereto that no one shall be or be deemed
to be a third-party beneficiary of this Agreement.
17
41. Time of the
Essence. Time is of the essence of this
Agreement.
42. Incorporation by
Reference. The Attachments and Schedules to this Agreement
referred to or included herein constitute integral parts to this Agreement and
are incorporated into this Agreement by this reference.
43. Press Releases and Public
Announcements. No party shall issue any press release or make
any public announcement relating to the subject matter of this Agreement prior
to the Effective Date without the prior written approval of the other parties;
provided, however, that any party may make any public disclosure it believes in
good faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the disclosing party
will use its efforts to advise the other parties prior to making the
disclosure).
44. Multiple
Counterparts. This Agreement may be executed 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. A facsimile
transmission or PDF copy of this signed Agreement shall be legal and binding on
all parties hereto.
45. Controlling
Agreement. In the event of any conflict between the terms of
this Agreement or any of the Other Agreements or exhibits referred to herein,
the terms of this Agreement shall control.
46. Law Governing;
Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, without regard to
any conflicts of laws provisions thereof. Each party hereby
irrevocably submits to the personal jurisdiction of the United States District
Court located in ▇▇▇▇▇▇ County, Georgia, as well as of the Courts of the State
of Georgia in ▇▇▇▇▇▇ County, Georgia over any suit, action or proceeding arising
out of or relating to this Agreement. Each party hereby irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such mediation, arbitration,
suit, action or proceeding brought in any such county and any claim that any
such mediation, arbitration, suit, action or proceeding brought in such county
has been brought in an inconvenient forum.
47. Entire
Agreement. This instrument and the attachments hereto contain
the entire understanding of the parties and may not be changed orally, but only
by an instrument in writing signed by the party against whom enforcement of any
waiver, change, modification, extension, or discharge is sought.
IN
WITNESS WHEREOF, the parties have executed this Plan of Merger as of May __,
2009.
|
EGPI/FIRECREEK,
INC.
|
|
|
By
|
|
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
|
|
|
ASIAN
VENTURES CORP.
|
|
|
By
|
|
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Executive
Officer
|
18
|
M3
LIGHTING, INC.
|
|
|
By
|
|
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Chief Executive Officer
|
|
|
STRATEGIC
PARTNERS CONSULTING, L.L.C.
|
|
|
By
|
|
|
▇▇▇▇▇ ▇. ▇▇▇, Managing Member
|
Attachments:
Attachment
A Subscription
Agreement
Attachment
B Articles
of Incorporation of Asian Ventures Corp.
Attachment
C Bylaws
of Asian Ventures Corp.
Attachment
D Administrative
Services Agreement
Schedules:
Schedule
14(c) Violations
of Various Documents
Schedule
14(g) States
in which M3 is Qualified to do Business
Schedule
14(j) Change
in Present Status
Schedule
14(k) Tax
Return Deficiencies
Schedule
14(l) Litigation
Schedule
14(m) Material
Violations
Schedule
14(n) Defaults
Schedule
14(o) Failure
to have all Permits and Approvals
Schedule
14(p) Properties
Schedule
14(q) Patents
and Trademarks
Schedule
14(r) Compliance
with Environmental Laws
Schedule
14(s) Absence
of Certain Changes or Events
Schedule
14(v) Employment
Contracts
Schedule
15(h) Liability
Level of EGPI at the Effective Date
Schedule
15(p) Certificate
of Designation for the EGPI Preferred Stock
19
ATTACHMENT
A
SUBSCRIPTION
AGREEMENT
SUBSCRIPTION
AGREEMENT
▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Corporate
Executive Offices
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Offering
of Common Stock Pursuant to a Plan of Merger
Gentlemen:
1. Subscription. The
undersigned M3 Stockholder hereby applies to accept shares of the common stock,
par value $0.001 per share (the “EGPI Common Stock”) of EGPI Firecreek, Inc., a
Nevada corporation (the “Company”) indicated below in accordance with the terms
of this Subscription Agreement and the private placement relating to that
certain Plan and Agreement of Triangular Merger between EGPI Firecreek, Inc.,
Asian Ventures Corp. and M3 Lighting, Inc. dated May ___, 2009 (the “Plan of
Merger”). The undersigned M3 Stockholder is a stockholder of M3
Lighting, Inc., a Georgia corporation, and pursuant to the Plan of Merger and
the Merger between Asian Ventures Corp. and M3 Lighting, Inc. shall receive
_______ shares of the EGPI Common Stock in exchange for all of his ________
shares of common stock in M3 Lighting, Inc., par value $0.01 per share (the “M3
Common Stock”). All capitalized terms which are not otherwise defined
herein shall have the meaning ascribed to such terms as defined in the Plan of
Merger.
2. Representations and
Warranties of the M3 Stockholder. The undersigned M3
Stockholder represents and warrants as follows:
(a) The
undersigned M3 Stockholder has received information provided to him in writing
by the Company, or information from books and records of the Company, as
specified below. The undersigned M3 Stockholder understands that all
documents, records and books pertaining to this investment have been made
available for inspection by him, his attorney and/or his accountant and/or his
“Purchaser Representative” as defined in Regulation D promulgated under the
Securities Act of 1933, as amended (the “Securities Act”), and that the books
and records of the Company will be available, upon reasonable notice, for
inspection by M3 Stockholders during reasonable business hours at the Company’s
principal place of business. The undersigned M3 Stockholder and/or
his advisers have had a reasonable opportunity to ask questions of and receive
answers from the Company, or a person or persons acting on its behalf,
concerning the Merger, and all such questions have been answered to the full
satisfaction of the undersigned M3 Stockholder. No oral
representations have been made and, to the extent oral information has been
furnished to the undersigned M3 Stockholder or his advisers in connection with
the Merger, such information was consistent with all written information
furnished
(b) Specifically,
the undersigned M3 Stockholder was provided with access to the Company’s filings
with the Securities and Exchange Commission, including the
following:
(i) The
Company’s annual report to stockholders for the most recent fiscal year, any
definitive proxy statement or information statement filed in connection with
that annual report, and, if requested by the undersigned M3 Stockholder in
writing, a copy of the Company’s most recent Form 10-K pursuant to the
Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(ii) The
information contained in an annual report on Form 10-K pursuant to the Exchange
Act.
(iii) The
information contained in any reports or documents required to be filed by the
Company under Sections 13(a), 14(a), 14(c), and 15(d) of the Exchange Act since
the distribution or filing of the reports specified above.
(iv) A brief
description of the securities being offered, the terms of the Merger, and any
material changes in the Company’s affairs that are not disclosed in the
documents furnished.
1
(c) The
undersigned M3 Stockholder (i) has adequate means of providing for his current
needs and possible personal contingencies, (ii) has no need for liquidity in
this investment, (iii) is able to bear the economic risks of an investment in
the EGPI Common Stock for an indefinite period, and (iv) at the present time,
could afford a complete loss of such investment.
(d) The
undersigned M3 Stockholder recognizes that the EGPI Common Stock as an
investment involves special risks, including those disclosed to the undersigned
M3 Stockholder by the Company.
(e) The
undersigned M3 Stockholder understands that the shares of the EGPI Common Stock
have not been nor will be registered under the Securities Act or the securities
laws of any state, in reliance upon an exemption therefrom for non-public
offerings. The undersigned M3 Stockholder understands that the shares
of the EGPI Common Stock received by him must be held indefinitely unless they
are subsequently registered or an exemption from such registration is
available. The undersigned M3 Stockholder further understands that
the Company has not agreed and is under no obligation to register the EGPI
Common Stock on his behalf or to assist him in complying with any exemption from
registration.
(f) The
shares of the EGPI Common Stock are being accepted solely for his own account
for investment and not for the account of any other person and not for
distribution, assignment, or resale to others and no other person has a direct
or indirect beneficial interest in the shares of the EGPI Common
Stock. The undersigned M3 Stockholder or his advisers have such
knowledge and experience in financial, tax, and business matters to enable him
to utilize the information made available to him in connection with the Merger
to evaluate the merits and risks of the prospective investment and to make an
informed investment decision with respect thereto.
(g) The
undersigned M3 Stockholder, if a corporation, partnership, trust, or other
entity, is authorized and otherwise duly qualified to purchase and hold the EGPI
Common Stock.
(h) All
information which the undersigned M3 Stockholder has provided to the Company
concerning himself, his financial position, and his knowledge of financial and
business matters, or, in the case of a corporation, partnership, trust or other
entity, the knowledge of financial and business matters of the person making the
investment decision on behalf of such entity, is correct and complete as of the
date set forth at the end hereof, and if there should be any adverse change in
such information prior to his subscription being accepted, he will immediately
provide the Company with such information.
(i) The
undersigned M3 Stockholder understands and agrees that the following
restrictions and limitations are applicable to his purchase and his resales,
hypothecations or other transfers of the EGPI Common Stock pursuant to
Regulation D under the Securities Act:
(i) The
undersigned M3 Stockholder agrees that the shares of the EGPI Common Stock shall
not be sold, pledged, hypothecated or otherwise transferred unless the shares of
the EGPI Common Stock are registered under the Securities Act, and the
securities laws of any state or is exempt therefrom;
(ii) A legend
in substantially the following form has been or will be placed on any
certificate(s) or other document(s) evidencing the shares of the EGPI Common
Stock:
THE
SECURITIES REPRESENTED BY THIS INSTRUMENT OR DOCUMENT HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAW OF ANY STATE. WITHOUT SUCH
REGISTRATION, SUCH SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED EXCEPT UPON DELIVERY TO THE COMPANY OF AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED FOR SUCH
TRANSFER OR THE SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY BE
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN
VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, THE SECURITIES LAW OF ANY
STATE, OR ANY RULE OR REGULATION PROMULGATED THEREUNDER.
2
(iii) Stop
transfer instructions to the transfer agent of the EGPI Common Stock have been
or will be placed with respect to the EGPI Common Stock so as to restrict the
resale, pledge, hypothecation or other transfer thereof, subject to the further
items hereof, including the provisions of the legend set forth in subparagraph
(ii) above; and
(iv) The
legend and stop transfer instructions described in subparagraphs (ii) and (iii)
above will be placed with respect to any new certificate(s) or other document(s)
issued upon presentment by the undersigned M3 Stockholder of certificate(s) or
other document(s) for transfer.
(j) The
undersigned M3 Stockholder understands that neither the Securities and Exchange
Commission nor the securities commission of any state has made any finding or
determination relating to the fairness for public investment in the EGPI Common
Stock and that the Securities and Exchange Commission as well as the securities
commission of any state will not recommend or endorse any offering of
securities.
(k) The
undersigned M3 Stockholder acknowledges and is aware that it never has been
represented, guaranteed, or warranted to him by the Company, its directors,
officers, agents or employees, or any other person, expressly or by implication,
that the limited past performance or experience on the part of the Company, or
any future projections will in any way indicate the predictable results of the
ownership of the EGPI Common Stock or of the overall financial performance of
the Company.
(l) The
undersigned M3 Stockholder acknowledges that ___________________________
(complete if applicable) has acted as the “Purchaser Representative” as defined
in Regulation D promulgated under the Securities Act, and (i) that he can bear
the economic risk of this investment; (ii) he has relied upon the advice of the
Purchaser Representative as to the merits of an investment in the Company and
the suitability of such investment for the undersigned M3 Stockholder; and (iii)
the Purchaser Representative has confirmed to him, in writing, any past, present
or future material relationship, actual or contemplated, between the Purchaser
Representative or its affiliates and the Company or its affiliates.
(m) The
undersigned M3 Stockholder acknowledges that the Company has made available to
him or the Purchaser Representative, if any, or other personal advisers the
opportunity to obtain additional information to verify the accuracy of the
information furnished to him and to evaluate the merits and risks of this
investment.
(n) The
undersigned M3 Stockholder confirms that he has consulted with the Purchaser
Representative, if any, or other personal advisers and that the Purchaser
Representative or other advisers have analyzed the information furnished to him
and the documents relating thereto on his behalf and have advised him of the
business and financial aspects and consequences of and potential liabilities
associated with his investment in the EGPI Common Stock. The
undersigned M3 Stockholder represents that he has made other risk capital
investments or other investments of a speculative nature, and by reason of his
business and financial experience and of the business and financial experience
of those persons he has retained to advise him with respect to investments of
this nature. In reaching the conclusion that he desires to acquire
the EGPI Common Stock, the undersigned M3 Stockholder has carefully evaluated
his financial resources and investments and acknowledges that he is able to bear
the economic risks of this investment.
(o) The
undersigned M3 Stockholder acknowledges that all information made available to
him and/or the Purchaser Representative, if any, and/or personal advisers in
connection with his investment in the EGPI Common Stock, including the
information furnished to him, is and shall remain confidential in all respects
and may not be reproduced, distributed or used for any other purpose without the
prior written consent of the Company.
(p) The
undersigned M3 Stockholder is an “Accredited Investor” as defined in Rule 501(a)
of the Securities Act.
(q) The
undersigned M3 Stockholder understands and agrees that the shares of the EGPI
Common Stock to be received by him as a result of the Merger will be subject to
the terms of the Escrow Agreement described in the Plan of Merger, as
amended. Consequently, rather than receiving the shares of the EGPI
Common Stock on the Effective Date of the Merger, the undersigned M3 Stockholder
authorizes M3 Lighting, Inc. to deliver the shares of the EGPI Common Stock to
the Escrow Agent named in the Escrow Agreement, with such shares to be held and
subject to all of the terms of the Escrow Agreement.
3
3. Indemnification. The
undersigned M3 Stockholder agrees to indemnify and hold harmless the Company and
its affiliates from and against all damages, losses, costs, and expenses
(including reasonable attorneys’ fees) which they may incur by reason of the
failure of the undersigned M3 Stockholder to fulfill any of the terms or
conditions of this subscription, or by reason of any breach of the
representations and warranties made by the undersigned M3 Stockholder herein, or
in any document provided by the undersigned M3 Stockholder to the
Company.
4. Survival. The
foregoing representations, warranties and undertakings are made with the intent
that they may be relied upon in determining the undersigned M3 Stockholder’s
suitability as a stockholder in the Company and the undersigned M3 Stockholder
hereby agrees that such representations and warranties shall survive his
acceptance of the EGPI Common Stock in connection with the
Merger. The undersigned M3 Stockholder hereby acknowledges and agrees
that he is not entitled to cancel, terminate or revoke this Subscription
Agreement, or any agreements hereunder, and that this Subscription Agreement and
such agreements shall survive (a) changes in the transactions, documents, and
instruments previously furnished to the undersigned M3 Stockholder which are not
materially adverse, and (b) the undersigned M3 Stockholder’s death or
disability.
5. Incorporation by
Reference. The Plan of Merger and all other agreements or
documents referred to or included herein constitute integral parts to this
Agreement and are incorporated into this Agreement by this
reference.
6. Notices. All
notices or other communications given or made hereunder shall be in writing and
shall be delivered or mailed by registered or certified mail, return receipt
requested, postage prepaid, to the undersigned M3 Stockholder or to the Company
at the respective addresses set forth herein.
7. Miscellaneous.
(a) Notwithstanding
any of the representations, warranties, acknowledgments, or agreements made
herein by the undersigned M3 Stockholder, the undersigned M3 Stockholder does
not thereby or in any other manner waive any rights granted to the undersigned
M3 Stockholder under federal or state securities laws.
(b) Words of
any gender used in this Subscription Agreement shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, and vice versa, unless the context requires
otherwise.
(c) In the
event of any conflict between the terms of this Subscription Agreement or the
Plan of Merger, the terms of the Plan of Merger shall control.
(d) This
Subscription Agreement contains the entire understanding of the parties and may
not be changed orally, but only by an instrument in writing signed by the party
against whom enforcement of any waiver, change, modification, extension, or
discharge is sought.
(e) This
Subscription Agreement shall be enforced, governed, and construed in all
respects in accordance with the laws of the State of Georgia and all obligations
hereunder shall be deemed performable in ▇▇▇▇▇▇ County, Georgia.
4
IN
WITNESS WHEREOF, I have executed this Subscription Agreement as of the ___ day
of _______, 2009.
|
(Signature)
|
|
|
(Print
or Type Name)
|
|
|
Social
Security Number
|
|
|
Address
|
|
|
Number
of Shares of M3 Common Stock
Held
|
Subscription
Accepted this ____ day of ____________, 2009.
By
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
5
ATTACHMENT
B
ARTICLES
OF INCORPORATION OF
ASIAN VENTURES
CORP.
ATTACHMENT
C
BYLAWS
OF
ASIAN
VENTURES CORP.
BYLAWS
OF
ASIAN
VENTURES, CORP.
ARTICLE
I
Offices
1.1. Registered
Office. The registered office of ASIAN VENTURES, CORP. (the
“Company”) required by Section 78.035 of the Nevada Revised Statutes or any
successor statute (the “NRS”) to be maintained in the State of Nevada shall be
the registered office named in the Articles of Incorporation of the Company, as
they may be amended or restated from time to time in accordance with the NRS
(the “Articles of Incorporation”).
1.2. Other
Offices. The Company may also have offices at such other
places both within and without the State of Nevada as the Board of Directors of
the Company (the “Board of Directors”) may determine from time to time or as the
business of the Company may require.
ARTICLE
II
Meetings
of Stockholders
2.1. Place of
Meetings. Meetings of the Company’s stockholders shall be held
at such place within or without the State of Nevada as may be designated by the
Board of Directors or the officer calling the meeting, or, in the absence of
such designation, at the principal office of the Company.
2.2. Annual
Meeting. An annual meeting of the stockholders, for the
election of directors to succeed those whose terms expire or to fill vacancies
and for the transaction of such other business as may properly come before the
meeting, shall be held on such date and at such time as the Board of Directors
shall fix and set forth in the notice of the meeting, which date shall be within
13 months subsequent to the last annual meeting of stockholders. At
the annual meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the annual meeting as set forth in
Paragraph 2.8 hereof. Failure to hold the annual meeting at the
designated time shall not work a dissolution of the Company.
2.3. Special
Meetings. Subject to the rights of the holders of any series
of the Company’s preferred stock (the “Preferred Stock”), as designated in any
resolutions adopted by the Board of Directors and filed with the State of Nevada
(a “Preferred Stock Designation”), special meetings of the stockholders may be
called at any time only by (a) the Chairman of the Board, (b) the Chief
Executive Officer, (c) the President, (d) the holders of at least 10 percent of
all of the shares entitled to vote at the proposed special meeting, or (e) the
Board of Directors pursuant to a duly adopted resolution. Special
Stockholder Meetings may not be called by any other person or persons or in any
other manner. Elections of directors need not be by written ballot
unless the Bylaws shall so provide. Upon written request of any
person or persons who have duly called a special meeting, it shall be the duty
of the Secretary to fix the date of the meeting to be held not less than 10 nor
more than 60 days after the receipt of the request and to give due notice
thereof, as required by the NRS. If the Secretary shall neglect or
refuse to fix the date of the meeting and give notice thereof, the person or
persons calling the meeting may do so.
2.4. Notice of
Meeting. Written or printed notice of all meetings, stating
the place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than 10 nor more than 60 days
before the date of the meeting, either personally or by mail, by or at the
direction of the Chairman of the Board or Secretary, to each stockholder
entitled to vote at such meeting. If mailed, such notice shall be
deemed to be delivered to a stockholder when deposited in the United States mail
addressed to such stockholder at such stockholder’s address as it appears on the
stock transfer records of the Company, with postage thereon
prepaid.
2.5. Registered Holders of
Shares; Closing of Share Transfer Records; and Record Date.
(a) Registered Holders as
Owners. Unless otherwise provided under the NRS, the Company
may regard the person in whose name any shares are registered in the stock
transfer records of the Company at any particular time (including, without
limitation, as of a record date fixed pursuant to subparagraph (b) of this
Paragraph 2.5) as the owner of such shares at that time for purposes of voting,
receiving distributions thereon or notices in respect thereof, transferring such
shares, exercising rights of dissent with respect to such shares, entering into
agreements with respect to such shares, or giving proxies with respect to such
shares; and neither the Company nor any of its officers, directors, employees or
agents shall be liable for regarding that person as the owner of such shares at
that time for those purposes, regardless of whether that person possesses a
certificate for such shares.
1
(b) Record
Date. For the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to receive a distribution by the Company (other than a distribution
involving a purchase or redemption by the Company of any of its own shares) or a
share dividend, or in order to make a determination of stockholders for any
other proper purpose, the Board of Directors may fix in advance a date as the
record date for any such determination of stockholders, such date in any case to
be not more than 60 days and, in the case of a meeting of stockholders, not less
than 10 days, prior to the date on which the particular action requiring such
determination of stockholders is to be taken. The Board of Directors
shall not close the books of the Company against transfers of shares during the
whole or any part of such period.
If the
Board of Directors does not fix a record date for any meeting of the
stockholders, the record date for determining stockholders entitled to notice of
or to vote at such meeting shall be at the close of business on the day next
preceding the day on which notice is given, or, if in accordance with Paragraph
7.3 of these Bylaws notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
2.6. Quorum of Stockholders;
Adjournment. Unless otherwise provided in the Articles of
Incorporation, a majority of the outstanding shares of capital stock of the
Company entitled to vote, present in person or represented by proxy, shall
constitute a quorum at any meeting of the stockholders, and the stockholders
present at any duly convened meeting may continue to do business until
adjournment notwithstanding any withdrawal from the meeting of holders of shares
counted in determining the existence of a quorum. Unless otherwise
provided in the Articles of Incorporation or these Bylaws, any meeting of the
stockholders may be adjourned from time to time by the chairman of the meeting
or the holders of a majority of the issued and outstanding stock, present in
person or represented by proxy, whether or not a quorum is present, without
notice other than by announcement at the meeting at which such adjournment is
taken, and at any such adjourned meeting at which a quorum shall be present any
action may be taken that could have been taken at the meeting originally called;
provided that if the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder of record entitled to vote at the adjourned
meeting.
2.7. Voting by
Stockholders.
(a) Voting on Matters Other than
the Election of Directors. With respect to any matters as to
which no other voting requirement is specified by the NRS, the Articles of
Incorporation or these Bylaws, and, subject to the rights of the holders of any
series of Preferred Stock to elect directors under specific circumstances, the
affirmative vote required for stockholder action shall be that of a majority of
the shares present in person or represented by proxy at the meeting (as counted
for purposes of determining the existence of a quorum at the
meeting).
(b) Voting in the Election of
Directors. Unless otherwise provided in the Articles of
Incorporation or these Bylaws in accordance with the NRS, directors shall be
elected by a plurality of the votes cast by the holders of outstanding shares of
capital stock of the Company entitled to vote in the election of directors at a
meeting of stockholders at which a quorum is present.
(c) Consents in Lieu of
Meeting. Any action that is required or permitted to be taken
by the stockholders of the Company at any annual or special meeting of
stockholders may be taken without a meeting if, before or after the action, a
written consent thereto is signed by stockholders holding at least a majority of
the voting power, except that if a different proportion of voting power is
required for such an action at a meeting, then that proportion of written
consents is required. In no instance where action is authorized by
written consent need a meeting of stockholders be called or notice
given.
2
(d) Telephone
Meetings. Stockholders may participate in a meeting of
stockholders by means of a telephone conference or similar methods of
communication by which all persons participating in the meeting can hear each
other. Participation in a meeting pursuant to this subsection constitutes
presence in person at the meeting.
(e) Other. The
Board of Directors, in its discretion, or the officer of the Company presiding
at a meeting of stockholders of the Company, in his discretion, may require that
any votes cast at such meeting shall be cast by written ballot.
2.8. Business to be Conducted at
Annual or Special Stockholder Meetings. At any annual or special meeting
of stockholders, only such business shall be conducted, and only such proposals
shall be acted upon, as shall have been disclosed in the notice delivered to the
stockholders with respect to such meeting.
2.9. Proxies. Each
stockholder entitled to vote at a meeting of stockholders may authorize another
person or persons to act for him by proxy. Proxies for use at any
meeting of stockholders shall be filed with the Secretary, or such other officer
as the Board of Directors may from time to time determine by resolution, before
or at the time of the meeting. All proxies shall be received and
taken charge of and all ballots shall be received and canvassed by the secretary
of the meeting who shall decide all questions relating to the qualification of
voters, the validity of the proxies, and the acceptance or rejection of votes,
unless an inspector or inspectors shall have been appointed by the chairman of
the meeting, in which event such inspector or inspectors shall decide all such
questions.
2.10. Approval or Ratification of
Acts or Contracts by Stockholders. The Board of Directors in
its discretion may submit any act or contract for approval or ratification at
any annual meeting of the stockholders, or at any special meeting of the
stockholders called for the purpose of considering any such act or contract, and
any act or contract that shall be approved or be ratified by the vote of the
stockholders holding a majority of the issued and outstanding shares of stock of
the Company entitled to vote and present in person or by proxy at such meeting
(provided that a quorum is present), shall be as valid and as binding upon the
Company and upon all the stockholders as if it has been approved or ratified by
every stockholder of the Company.
2.11 Inspectors of
Election. The Company shall, in advance of any meeting of
stockholders, appoint one or more inspectors of election, who may be employees
of the Company, to act at the meeting or any adjournment thereof and to make a
written report thereof. The Company may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. If
no inspector so appointed or designated is able to act at a meeting of
stockholders, the chairman or the person presiding at the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath to
execute faithfully the duties of inspector with strict impartiality and
according to the best of his ability.
The
inspector or inspectors so appointed or designated shall: (a) ascertain the
number of shares of capital stock of the Company outstanding and the voting
power of each such share; (b) determine the shares of capital stock of the
Company represented at the meeting and the validity of proxies and ballots; (c)
count all votes and ballots; (d) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors; and (e) certify their determination of the number of shares of the
capital stock of the Company represented at the meeting and such inspectors’
count of all votes and ballots. Such certification and report shall
specify such other information as may be required by law. In
determining the validity and counting of proxies and ballots cast at any meeting
of stockholders of the Company, the inspectors may consider such information as
is permitted by applicable law. No person who is a candidate for an
office at an election may serve as an inspector at such election.
3
ARTICLE
III
Directors
3.1. Powers, Number,
Classification and Tenure.
(a) The
powers of the Company shall be exercised by or under the authority of, and the
business and affairs of the Company shall be managed under the direction of, the
Board of Directors. Each director shall hold office for the full term
for which such director is elected and until such director’s successor shall
have been duly elected and qualified or until his earlier death or resignation
or removal in accordance with the Articles of Incorporation or these
Bylaws.
(b) Within
the limits specified in the Articles of Incorporation, and subject to the rights
of the holders of any series of Preferred Stock to elect directors under
specific circumstances, the number of directors that shall constitute the whole
Board of Directors shall be fixed by, and may be increased or decreased from
time to time by, the affirmative vote of a majority of the stockholders of the
Company or a majority of the members at any time constituting the Board of
Directors. Except as provided in the Articles of Incorporation, and
subject to the rights of the holders of any series of Preferred Stock to elect
directors under specific circumstances, newly created directorships resulting
from any increase in the number of directors and any vacancies on the Board of
Directors resulting from death, resignation, disqualification, removal or other
cause shall be filled by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum of the Board of
Directors. Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the class of
directors in which the new directorship was created or the vacancy occurred and
until such director’s successor shall have been elected and qualified or until
his earlier death, resignation or removal. No decrease in the number
of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
3.2. Qualifications. Directors
need not be residents of the State of Nevada or stockholders of the
Company.
3.3. Place of Meeting; Order of
Business. Except as otherwise provided by law, meetings of the
Board of Directors, regular or special, may be held either within or without the
State of Nevada, at whatever place is specified by the person or persons calling
the meeting. In the absence of specific designation, the meetings
shall be held at the principal office of the Company. At all meetings
of the Board of Directors, business shall be transacted in such order as shall
from time to time be determined by the Chairman of the Board, or in his absence
by the President, or by resolution of the Board of Directors.
3.4. Regular
Meetings. Regular meetings of the Board of Directors shall be
held, in each case, at such hour and on such day as may be fixed by resolution
of the Board of Directors, without further notice of such
meetings. The time or place of holding regular meetings of the Board
of Directors may be changed by the Chairman of the Board by giving written
notice thereof as provided in Paragraph 3.6 hereof.
3.5. Special
Meetings. Special meetings of the Board of Directors shall be
held, whenever called by the Chairman of the Board or by resolution adopted by
the Board of Directors, in each case, at such hour and on such day as may be
stated in the notice of the meeting.
3.6. Attendance at and Notice of
Meetings. Written notice of the time and place of, and general
nature of the business to be transacted at, all special meetings of the Board of
Directors, and written notice of any change in the time or place of holding the
regular meetings of the Board of Directors, shall be given to each director
personally or by mail or by telegraph, telecopier or similar communication at
least one day before the day of the meeting; provided, however, that
notice of any meeting need not be given to any director if waived by him in
writing, or if he shall be present at such meeting. Participation in
a meeting of the Board of Directors shall constitute presence in person at such
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
3.7. Quorum of and Action by
Directors. A majority of the directors in office shall
constitute a quorum of the Board of Directors for the transaction of business;
but a lesser number may adjourn from day to day until a quorum is
present. Except as otherwise provided by law or in these Bylaws, all
questions shall be decided by the vote of a majority of the directors present at
a meeting at which a quorum is present.
4
3.8. Board and Committee Action
Without a Meeting. Unless otherwise restricted by the Articles
of Incorporation or these Bylaws, any action required or permitted to be taken
at a meeting of the Board of Directors or any committee thereof may be taken
without a meeting if a consent in writing, setting forth the action so taken, is
signed by all the members of the Board of Directors or such committee, as the
case may be, and shall be filed with the Secretary.
3.9. Board and Committee
Telephone Meetings. Subject to the provisions required or
permitted by the NRS for notice of meetings, unless otherwise restricted by the
Articles of Incorporation or these Bylaws, members of the Board of Directors, or
members of any committee designated by the Board of Directors, may participate
in and hold a meeting of such Board of Directors or committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Paragraph 3.9 shall constitute presence in person at
such meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
3.10. Compensation. Directors
shall receive such compensation for their services as shall be determined by the
Board of Directors.
3.11. Removal. Except
as otherwise provided in any Preferred Stock Designation, any director may be
removed from office only by the affirmative vote of the holders of a majority or
more of the combined voting power of the then outstanding shares of capital
stock of the Company entitled to vote at a meeting of stockholders called for
that purpose, voting together as a single class.
3.12. Committees of the Board of
Directors.
(a) The Board
of Directors, by resolution adopted by a majority of the full Board of
Directors, may designate from among its members one or more committees, each of
which shall be comprised of one or more of its members, and may designate one or
more of its members as alternate members of any committee, who may, subject to
any limitations by the Board of Directors, replace absent or disqualified
members at any meeting of that committee. Any such committee, to the
extent provided in such resolution or in the Articles of Incorporation or these
Bylaws, shall have and may exercise all of the authority of the Board of
Directors to the extent permitted by the NRS, including, without limitation, the
power and authority to declare a dividend, to authorize the issuance of stock or
to adopt a plan of merger pursuant to Section 78.125 of the NRS. Any
such committee may authorize the seal of the Company to be affixed to all papers
which may require it. In addition to the above, such committee or
committees shall have such other powers and limitations of authority as may be
determined from time to time by resolution adopted by the Board of
Directors.
(b) The Board
of Directors shall have the power at any time to change the membership of any
such committee and to fill vacancies in it. A majority of the number
of members of any such committee shall constitute a quorum for the transaction
of business unless a greater number is required by a resolution adopted by the
Board of Directors. The act of the majority of the members of a
committee present at any meeting at which a quorum is present shall be the act
of such committee, unless the act of a greater number is required by a
resolution adopted by the Board of Directors. Each such committee may
elect a chairman and appoint such subcommittees and assistants as it may deem
necessary. Except as otherwise provided by the Board of Directors,
meetings of any committee shall be conducted in accordance with Paragraphs 3.4,
3.5, 3.6, 3.7, 3.8, 3.9 and 7.3 hereof. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting and not disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of the absent or disqualified member. Any
member of any such committee elected or appointed by the Board of Directors may
be removed by the Board of Directors whenever in its judgment the best interests
of the Company will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so
removed. Election or appointment of a member of a committee shall not
of itself create contract rights.
5
(c) Any
action taken by any committee of the Board of Directors shall promptly be
recorded in the minutes and filed with the Secretary.
ARTICLE
IV
Officers
4.1. Designation. The
officers of the Company shall consist of a Chairman of the Board, Chief
Executive Officer, President, Chief Operating Officer, Secretary, Chief
Financial Officer, Treasurer, Controller and such Executive, Senior or other
Vice Presidents, Assistant Secretaries, Assistant Treasurers, Assistant
Controllers and other officers as may be elected or appointed by the Board of
Directors from time to time. Any number of offices may be held by the
same person. The Chairman of the Board may also serve as the Chief
Executive Officer. The Chairman of the Board shall be chosen from the
directors. All officers chosen by the Board of Directors shall each
have such powers and duties as generally pertain to their respective
stockholders and of the Board of Directors.
4.2. Election and Term of
Office. The elected officers of the Company shall be elected
annually by the Board of Directors at the regular meeting of the Board of
Directors held at the time of each annual meeting of the
stockholders. If the election of officers shall not be held at such
meeting, such election shall be held as soon thereafter as
convenient. Subject to Paragraph 4.17 of these Bylaws, each officer
shall hold office until such officer’s successor shall have been duly elected
and shall have qualified or until such officer’s death or until such officer
shall resign.
4.3. Chairman of the
Board. The Chairman of the Board shall be the Chief Executive
Officer of the Company and shall preside at all meetings of the stockholders and
of the Board of Directors. Except where by law the signature of the
President is required, the Chairman of the Board shall possess the same power as
the President to sign all contracts, certificates and other instruments of the
Company which may be authorized by the Board of Directors. The
Chairman of the Board shall also perform such other duties and may exercise such
other powers as from time to time may be assigned to him by these Bylaws or by
the Board of Directors. In the absence or incapacity to act of the
President, the Chairman of the Board shall serve as acting President, and when
so acting, shall have all the powers of and be subject to the restrictions of
such office.
4.4. Chief Executive
Officer. The Chief Executive Officer shall be responsible for
the general management of the affairs of the Company and shall perform all
duties incidental to the Chief Executive Officer’s office which may be required
by law and all such other duties as are properly required of him by the Board of
Directors. The Chief Executive Officer shall see that all orders and
resolutions of the Board of Directors and of any committee thereof are carried
into effect.
4.5. President. The
President shall be the Chief Operating Officer of the Company and shall have
general supervision and control of the business, affairs and properties of the
Company and its general officers, and shall see that all orders and resolutions
of the Board of Directors are carried into effect. He shall have the
power to appoint and remove all subordinate officers, agents and employees,
except those elected or appointed by the Board of Directors, and shall execute
all bonds, mortgages, contracts and other instruments of the Company requiring a
seal, under the seal of the Company, except where required or permitted by law
to be otherwise signed and executed and except that the other officers of the
Company may sign and execute documents when so authorized by these Bylaws, the
Board of Directors or the President. The President shall also perform
such other duties and may exercise such other powers as from time to time may be
assigned to him by these Bylaws or by the Board of Directors. In the
incapacity to act of the Chairman of the Board, the President shall serve as
acting Chairman of the Board, and when so acting, shall have all the powers of
and be subject to the restrictions of such office.
4.6. Chief Operating
Officer. As the Chief Operating Officer, the President shall
have general charge and supervision of the day to day operations of the Company
(subject to the direction of the Board of Directors), and, in general, shall
perform such other duties as are incident to the office of a chief operating
officer of a corporation, including those duties customarily performed by
persons occupying such office, and shall perform such other duties as, from time
to time, may be assigned to him by the Board of Directors.
6
4.7. Vice
President. The Board of Directors may appoint such Vice
Presidents as may be recommended by the President or as the directors deem
necessary or appropriate. Vice Presidents may be designated as Senior
Vice Presidents, Executive Vice Presidents or some other designation as the
Board of Directors deems appropriate (each a “Vice President”). Each
Vice President shall perform such duties as the Board of Directors may from time
to time prescribe and have such other powers as the President may from time to
time prescribe.
4.8. Chief Financial
Officer. The Chief Financial Officer shall be the chief
accounting officer of the Company and shall have general charge and supervision
of the day to day financial operations of the Company (subject to the direction
of the Board of Directors), and, in general, shall perform such other duties as
are incident to the office of a chief financial officer of a corporation,
including those duties customarily performed by persons occupying such office,
and shall perform such other duties as, from time to time, may be assigned to
him by the Board of Directors or the Audit Committee.
4.9. Secretary. The
Secretary shall attend the meetings of the Board of Directors and all meetings
of stockholders and record the proceedings thereof in a book or books to be kept
for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or President, under whose supervision he shall
be. If the Secretary shall be unable or shall refuse to cause to be
given notice of all meetings of the stockholders and special meetings of the
Board of Directors, and if there be no Assistant Secretary, then the Chairman of
the Board may choose another officer to cause such notice to be
given. The Secretary shall have custody of the seal of the Company
and the Secretary or any Assistant Secretary, if there be one, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by the signature of the Secretary or by the signature of any
such Assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Company and to attest
the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records
required by law to be kept or filed are properly kept or filed, as the case may
be.
4.10. Treasurer. The
Treasurer shall have the custody of the Company’s funds and securities and shall
keep full and accurate accounts of receipt and disbursements in books belonging
to the Company and shall deposit all moneys and other valuable effects in the
name and to the credit of the Company in such depositories as may be designated
by the Chief Financial Officer or the Board of Directors. The
Treasurer shall disburse the funds of the Company as may be ordered by the Chief
Financial Officer or the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chairman of the Board and the Board of
Directors, at its regular meeting, or when the Board of Directors so requires,
an account of all his transactions as Treasurer and of the liquidity of the
Company. If required by the Board of Directors, the Treasurer shall
give the Company a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Company, in case of his
death, resignation, retirement or removal from office, of all books papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Company.
4.11. Controller. The
Controller, if there is one, shall maintain records of all assets, liabilities,
and transactions of the Company and shall be responsible for the design,
installation and maintenance of accounting and cost control systems and
procedures for the Company and shall perform such other duties and have such
other powers as from time to time may be assigned to him by the Chief Financial
Officer, Board of Directors or the Audit Committee.
4.12. Assistant
Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there be any, shall perform such duties and
have such powers as from time to time may be assigned to them by the Board of
Directors, the President, any Vice President, or the Secretary, and in the
absence of the Secretary or in the event of his disability or refusal to act,
shall perform the duties of the Secretary, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the
Secretary.
7
4.13. Assistant
Treasurers. Assistant Treasurers, if there be any, shall
perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors, the President or the Treasurer, and in the
absence of the Treasurer or in the event of his disability or refusal to act,
shall perform the duties of the Treasurer, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the
Treasurer. If required by the Board of Directors, an Assistant
Treasurer shall give the Company a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Company,
in case of his death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Company.
4.14. Assistant
Controllers. Except as may be otherwise provided in these
Bylaws, Assistant Controllers, if there be any, shall perform such duties and
have such powers as from time to time may be assigned to them by the Board of
Directors, the President, any Vice President, or the Controller, and in the
absence of the Controller or in the event of his disability or refusal to act,
shall perform the duties of the Controller, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the
Controller.
4.15. Other
Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers, subordinate to those
powers specifically delegated to certain officer in these Bylaws, as from time
to time may be assigned to them by the Board of Directors. The
President of the Company shall have the power to choose such other officers and
to prescribe their respective duties and powers, subject to control by the Board
of Directors.
4.16. Vacancies. Whenever
any vacancies shall occur in any office by death, resignation, increase in the
number of offices of the Company, or otherwise, the same shall be filled by the
Board of Directors (or the President, in accordance with Paragraph 4.3 of these
Bylaws, subject to control by the Board of Directors), and the officer so
appointed shall hold office until such officer’s successor is elected or
appointed in accordance with these Bylaws or until his earlier death,
resignation or removal.
4.17. Removal. Any
officer or agent of the Company may be removed by the Board of Directors
whenever in its judgment the best interests of the Company will be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of an officer
or agent shall not of itself create contract rights.
4.18. Action with Respect to
Securities of Other Corporations. Unless otherwise directed by
the Board of Directors, the Chairman of the Board, the Chief Executive Officer,
the President, any Vice President and the Treasurer of the Company shall each
have power to vote and otherwise act on behalf of the Company, in person or by
proxy, at any meeting of security holders of or with respect to any action of
security holders of any other corporation in which the Company may hold
securities and otherwise to exercise any and all rights and powers which the
Company may possess by reason of its ownership of securities in such other
corporation.
ARTICLE
V
Capital
Stock
5.1. Certificates for
Shares. The certificates for shares of the capital stock of
the Company shall be in such form as may be approved by the Board of Directors
from time to time. The Company shall deliver one or more certificates
to each of the Company’s stockholders, which shall represent the number of
shares to which such stockholder is entitled. Certificates shall be
signed by the Chairman of the Board, the President or a Vice President and
either the Secretary or an Assistant Secretary, and may bear the seal of the
Company or a facsimile thereof. The signatures of such officers upon
a certificate may be facsimiles. The stock record books and the blank
stock certificates shall be kept by the Secretary, or at the office of such
transfer agent or transfer agents as the Board of Directors may from time to
time by resolution determine. In case any officer who has signed or
whose facsimile signature has been placed upon such certificate shall have
ceased to be such officer before such certificate is issued, it may be issued by
the Company with the same effect as if such person were such officer at the date
of its issuance.
8
5.2. Multiple Classes of
Stock. As the Company is authorized to issue more than one
class of capital stock and more than one series of preferred stock, a statement
of the powers, designations, preferences and relative, participating, optional
or other special rights of each class of stock or series thereof and the
qualification, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of each of the
certificates the Company issues to represent such class or series of stock;
provided that, to the extent allowed by law, in lieu of such statement, the face
or back of such certificates may state that the Company will furnish a copy of
such statement without charge to each requesting stockholder.
5.3. Transfer of
Shares. The shares of stock of the Company shall be
transferable only on the books of the Company by the holders thereof in person
or by their duly authorized attorneys or legal representatives upon surrender
and cancellation of certificates for a like number of shares.
5.4. Ownership of
Shares. As the Company is entitled to treat the holder of
record of any share or shares of capital stock as the holder in fact thereof
under Paragraph 2.5 hereof, the Company shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of the State of Nevada.
5.5. Regulations Regarding
Certificates. The Board of Directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer and registration or the replacement of
certificates for shares of capital stock of the Company.
5.6. Lost or Destroyed
Certificates. The Board of Directors may determine the
conditions upon which a new certificate representing shares of the capital stock
of the Company may be issued in place of a certificate which is alleged to have
been lost, stolen or destroyed; and may, in its discretion, require the owner of
such certificate or his legal representative to give bond, with sufficient
surety, to indemnify the Company and each transfer agent and registrar against
any and all losses or claims that may arise by reason of the issue of a new
certificate in the place of the one so lost, stolen or destroyed.
ARTICLE
VI
Indemnification
6.1. General. The
Company shall indemnify its directors, officers, employees, agents and others as
provided in the Articles of Incorporation.
6.2. Request for
Indemnification. A party requesting indemnification (the
“Indemnitee”) shall submit notice of such request in writing to the Secretary of
the Company. Such notice of request for indemnification shall contain
sufficient information to reasonably inform the Company about the nature and
extent of the indemnification or advance sought by the
Indemnitee. The Secretary shall promptly advise the Board of
Directors of any such request.
6.3. Extension of
Rights. No amendment, alteration or repeal of this Article VI
or any provision hereof shall be effective as to any Indemnitee for acts, events
and circumstances that occurred, in whole or in part, before such amendment,
alteration or repeal. The provisions of this Article VI shall
continue as to an Indemnitee whose Corporate Status has ceased for any reason
and shall inure to the benefit of his heirs, executors and
administrators. Neither the provisions of this Article VI nor those
of any agreement to which the Company is a party shall be deemed to preclude the
indemnification of any person who is not specified in this Article VI as having
the right to receive indemnification or is not a party to any such agreement,
but whom the Company has the power or obligation to indemnify under the
provisions of the NRS.
6.4. Insurance and
Subrogation. The Company shall not be liable under the
Articles of Incorporation or this Article VI to make any payment of amounts
otherwise indemnifiable hereunder if, but only to the extent that, the
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise. In the event of any payment
hereunder, the Company shall be subrogated to the extent of such payment to all
the rights of recovery of the Indemnitee, who shall execute all papers required
and take all action reasonably requested by the Company to secure such rights,
including execution of such documents as are necessary to enable the Company to
bring suit to enforce such rights.
9
6.5. Severability. If
any provision or provisions of this Article VI shall be held to be invalid,
illegal or unenforceable for any reason whatsoever, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby; and, to the fullest extent possible, the provisions of this
Article VI shall be construed so as to give effect to the intent manifested by
the provision held invalid, illegal or unenforceable.
6.6. Notices. Promptly
after receipt by the Indemnitee of notice of the commencement of any action,
suit or proceeding, the Indemnitee shall, if he anticipates or contemplates
making a claim for expenses or an advance pursuant to the terms of the Articles
of Incorporation and this Article VI, notify the Company of the commencement of
such action, suit or proceeding; provided, however, that any
delay in so notifying the Company shall not constitute a waiver or release by
the Indemnitee of rights hereunder and that any omission by the Indemnitee to so
notify the Company shall not relieve the Company from any liability that it may
have to the Indemnitee otherwise than under the Articles of Incorporation or
this Article VI. Any communication required or permitted to the
Company shall be addressed to the Secretary and any such communication to the
Indemnitee shall be addressed to the Indemnitee’s address as shown on the
Company’s records unless he specifies otherwise and shall be personally
delivered or delivered by overnight mail delivery. Any such notice
shall be effective upon receipt.
6.7. Contractual
Rights. The right to be indemnified or to the advancement or
reimbursement of expenses (a) is a contract right based upon good and valuable
consideration, pursuant to which the Indemnitee may ▇▇▇ as if these provisions
were set forth in a separate written contract between the Indemnitee and the
Company, (b) is and is intended to be retroactive and shall be available as to
events occurring prior to the adoption of these provisions, and (c) shall
continue after any rescission or restrictive modification of such provisions as
to events occurring prior thereto.
ARTICLE
VII
Miscellaneous
Provisions
7.1. Bylaw
Amendments. These Bylaws may be amended as provided in the
Articles of Incorporation.
7.2. Books and
Records. The Company shall keep books and records of account
and shall keep minutes of the proceedings of its stockholders, its Board of
Directors and each committee of its Board of Directors.
7.3. Notices; Waiver of
Notice. Whenever any notice is required to be given to any
stockholder, director or committee member under the provisions of the NRS, the
Articles of Incorporation or these Bylaws, said notice shall be deemed to be
sufficient if given by deposit of the same in the United States mail, with
postage paid thereon, addressed to the person entitled thereto at his address as
it appears on the records of the Company, and such notice shall be deemed to
have been given on the day of such mailing.
Whenever
any notice is required to be given to any stockholder, director or committee
member under the provisions of the NRS, the Articles of Incorporation or these
Bylaws, a waiver thereof in writing signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be
equivalent to the giving of such notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
7.4. Resignations. Any
director or officer may resign at any time. Such resignations shall
be made in writing and shall take effect at the time specified therein, or, if
no time be specified, at the time of its receipt by the President or the
Secretary. The acceptance of a resignation shall not be necessary to
make it effective, unless expressly so provided in the resignation.
7.5. Seal. The
seal of the Company shall be in such form as the Board of Directors may
adopt.
10
7.6. Fiscal
Year. The fiscal year of the Company shall be as provided by a
resolution adopted by the Board of Directors.
7.7. Facsimile
Signatures. In addition to the provisions for the use of
facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any director or officer of the Company may be used
whenever and as authorized by the Board of Directors.
7.8. Reliance upon Books, Reports
and Records. Each director and each member of any committee
designated by the Board of Directors shall, in the performance of his duties, be
fully protected in relying in good faith upon the books of account or reports
made to the Company by any of its officers, or by an independent certified
public accountant, or by an appraiser selected with reasonable care by the Board
of Directors or by any such committee, or in relying in good faith upon other
records of the Company.
ARTICLE
VIII
Adoption
of Bylaws
8.1. Adoption. These
Bylaws were adopted by the Board of Directors as of _______, 2009.
11
ATTACHMENT
D
ADMINISTRATIVE
SERVICES AGREEMENT
ADMINISTRATIVE
SERVICES AGREEMENT
This
Administrative Services Agreement (the “Agreement”) is effective as of the __day
of ____, 2009 (the “Effective Date”) by and between EPGI/FIRECREEK INC, a Nevada
corporation (the “Client”), and STRATEGIC PARTNERS
CONSULTING LLC. a Georgia limited liability company (“SPC”).
Factual
Background
A. The
Client is an existing business which recently underwent a fundamental change by
way of triangular reverse merger with M3 Lighting, Inc. a Georgia
corporation.
B. The
Client believes that it may be more efficient to “outsource” certain
administrative, management and technology support related functions, thereby
providing the Client with access to higher quality and more sophisticated level
of support at a lower cost because of the ability to “share” the cost with other
customers of the “outsource” provider. Of course, the Client,
desiring to be a stand-alone business, will retain other administrative and
management functions “in-house” where it is necessary for the “core business”
and is more cost effective or is otherwise more desirable.
NOW, THEREFORE, the
parties hereto agree as follows:
1. Management and Technology
Services.
(a) Engagement. The
Client hereby engages SPC to provide the following services:
(i) Financial and Accounting
Matters. SPC shall maintain Client’s general ledger, accounts
receivable and accounts payable records, and fixed asset records and provide
billing and collection services. SPC shall also prepare or cause to
be prepared Client’s federal, state and local tax returns, and financial
statements. SPC shall also provide, or cause to be provided, to
Client payroll services, including assistance with regulatory compliance
matters. SPC shall maintain all past accounting, tax and payroll
records until such time as such records shall be disposed of in accordance with
applicable legal requirements and SPC’s normal record disposal
policies.
(ii) Insurance
Matters. SPC shall provide or cause to be provided to Client
insurance with the coverage, insurers, and maximum deductibles shall be
determined by the parties. All such insurance policies shall add
Client as an additional named insured and such insurers shall be required to
provide Client with no less than 5 days prior written notice of any change or
cancellation of any such insurance. In the event of any such
potential change which may have a materially adverse affect on the Client, or in
the event of potential cancellation, Client shall be entitled to secure
replacement insurance at its own cost.
(iii) Employee Benefits
Matters. SPC shall provide or cause to be provided
administrative services necessary to the provision and maintenance of customary
employee benefits, including without limitation the Client’s 401(k) Plan,
medical, dental, vision, and life insurance programs, and stock option plan, and
to the extent feasible, will permit the employees of the Client to participate
in SPC’s 401(k), insurance and stock option plans.
(iv) Legal
Services. SPC shall provide Client with all legal services
reasonably requested by Client which SPC in-house counsel currently provides to
SPC in the ordinary course of business.
(v) Management Consulting and
Other Services Provided by SPC. SPC shall provide and perform
such other management consulting services, as shall be requested by the Client
and agreed upon between the Client and SPC, from time to time as
agreed.
(b) Compensation.
(i) Base
Rate: For services described in subsections above (the “Administrative
Services”), SPC shall be compensated at a minimum annual rate of Two Hundred and
Fifty Thousand Dollars ($250,000) (the “Base Rate”) payable in monthly
installments commencing on the date of the closing of the EPGI/Firecreek/M3
merger. The Base Rate shall automatically increase proportionally to increases
in revenues, whether by acquisition or by internal growth.
(ii) Facilities. During
the Term hereof, SPC shall make office space available to Client at SPC’s
offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to an
office use agreement to be entered into between SPC and Client, which in
addition to terms customarily found therein, shall provide for a monthly office
use fee at the rate of $1500 per month.
2. Term. The
term of this Agreement shall be ten (10) years from the date hereof, provided
that the term shall thereafter automatically renew from time to time for
successive, additional ten-year terms unless either party shall provide the
other party with a written notice of termination at least six (6) months prior
to the termination date (including any termination date as a result of any
renewal period).
3. Billing. SPC shall
▇▇▇▇ the Client, on a monthly basis, a fee reflecting compensation due for
services rendered in the preceding month calculated as provided for in this
Agreement. The ▇▇▇▇ shall be due and payable upon
receipt.
4. Separate Identity of
Client. The Client desires to remain at all times a separate
company. Toward that end, all business records, reports and files
prepared or maintained by SPC for the Client shall remain the sole and exclusive
property and records of the Client and the Client shall be entitled to their
return at any time upon request. Moreover, all of the Client’s funds,
accounts receivable or other property shall at all times be clearly and
distinctly maintained as the Client’s separate and distinct property and shall
not be combined or commingled with the property of SPC. Moreover, SPC
shall have no authority hereunder to enter into contracts on behalf of, or
otherwise legally bind, the Client. Although SPC shall make
recommendations to the Client hereunder, all decisions whether to accept or
reject the advice of SPC are up to the Client’s total discretion.
5. Confidentiality. The
parties agree, both during the Term of this Agreement and for a period of two
years after termination of this Agreement, but in no event less than ten (10)
years from the Effective Date, to hold each other’s Proprietary or Confidential
Information in strict confidence. The parties agree not to make each
other’s Proprietary or Confidential Information available in any form to any
third party or to use each other’s Proprietary or Confidential Information for
any purpose, other than the implementation of and as specified in this Agreement
and other than use by Client in its business. Each party agrees to
take all reasonable steps to ensure that Proprietary or Confidential Information
of either party is not disclosed or distributed by its employees, agents or
consultants in violation of the provisions of this Agreement. Each
party’s Proprietary or Confidential Information shall remain the sole and
exclusive property of that party. Each party expressly agrees to include,
maintain, reproduce and perpetuate all notices or markings on all copies of all
tangible media comprising each party’s Proprietary or Confidential Information
in the manner in which such notices or markings appear on such tangible media or
in the manner in which either party may reasonably request. The
provisions of this Section 5 shall survive
termination or expiration of this Agreement for any reason. For the
purposes of this section, “Proprietary or Confidential Information” shall mean
knowledge and information not generally known in the industry which provides a
competitive advantage, including, without limitation, research and development
programs, formulas, know-how, forecasts, sales and marketing methods, financing
sources, customer and mailing lists, customer usages and requirements, financial
information and all other confidential information, trade secrets and
data. Neither party shall have any obligation with respect to
Proprietary or Confidential Information which: (i) is or becomes generally known
to the public by any means other than a breach of the obligations of a receiving
party; (ii) was rightly received by the receiving party from a third party after
the date hereof, (iv) is independently developed by the receiving party without
reference to information derived from the other party; and (v) subject to
disclosure under court order or other lawful process.
2
6. Termination.
(a) By
Client. The Client may terminate this Agreement immediately
upon delivery of written notice to SPC. In addition, the Client, from
time to time, may expand or reduce the scope of services provided by
SPC. For example, as illustration, Client may determine that the
number of employees at Client has increased to the level where human resource
management should now be handled “in-house” rather than by SPC. The
parties recognize that this will be a flexible and evolving
relationship. If SPC shall incur any expenses in connection with and
resulting from the Client’s expansion, reduction, or termination of any specific
services or provision of technology hereunder, Client shall reimburse SPC for
such costs or expenses promptly upon receipt of an itemized account
thereof.
(b) Notwithstanding
Termination by Client as provided in Section 6(a), Client agrees to pay SPC the
Base Rate of Compensation then in effect through the end of the
Term.
(c) By
SPC. SPC may terminate the agreement upon not less than 90
days written notice in the event that the Client has failed to pay any
outstanding invoice on the date due or within 30 days
thereafter.
7. Independent Contractor
Relationship. It is acknowledged and agreed that SPC’s
relationship with the Client is at all times hereunder an independent
contractor. The Client shall have no authority over SPC’s internal
business affairs and decisions. SPC shall have no authority to act on
behalf of, or legally bind the Client, and SPC shall not hold itself out as
having any such authority. This Agreement shall not be construed as
creating a partnership or joint venture.
8. Limitation of
Liability and Disclaimer of Warranties.
(a) SPC
hereby warrants and represents that: SPC will provide the services
requested pursuant to this Agreement in a workmanlike and professional
manner. THE SERVICES TO BE PROVIDED OR PERFORMED HEREUNDER ARE
PROVIDED WITHOUT WARRANTY OF ANY KIND AS TO RESULTS. IN NO EVENT SHALL SPC OR
ANY OF ITS OFFICERS, DIRECTORS, OR AGENTS BE LIABLE TO CLIENT OR ANY THIRD PARTY
FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION,
INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF
PROFITS, BUSINESS INTERRUPTION ARISING OUT OF OR CONNECTED IN ANY WAY WITH SPC’S
PERFORMANCE UNDER THIS AGREEMENT EVEN IF SPC HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
3
9. Client
Indemnity.
Client
shall indemnify and hold SPC harmless against any and all liabilities, losses,
damages, judgments, claims, causes of action, and costs (including attorneys
fees and disbursements) which SPC may hereafter incur, suffer, or be required to
pay, defend, settle, or satisfy as a result of third party claims against SPC
based on or arising out of the discharge of its responsibilities
hereunder
10. Miscellaneous.
(a) Force
Majeure. Neither party shall be in default of this Agreement
or liable to the other party for any delay or default in performance where
occasioned by any cause of any kind or extent beyond its control, including but
not limited to, armed conflict or economic dislocation resulting therefrom;
embargoes; shortages or labor, raw materials, production facilities or
transportation; labor difficulties; civil disorders of any kind; action of any
civil or military authorities (including priorities and allocations); fires;
floods; telecommunications failures; Internet slow-downs; and
accidents. The dates on which the obligations of a party are to be
fulfilled shall be extended for a period equal to the time lost by reason of any
delay arising directly or indirectly from:
(i) Any of
the foregoing causes; or
(ii) Inability
of that party, as a result of causes beyond its reasonable control, to obtain
instruction or information from the other party in time to perform its
obligations by such dates.
(b) Severability. Whenever
possible, each provision of this Agreement will be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision hereof
is held by a court of competent jurisdiction to be prohibited or invalid, such
prohibition or invalidity shall not affect the remaining provisions of this
Agreement. In the event a court of competent jurisdiction shall
determine and hold that the covenants contained herein are invalid or
unenforceable for any reason, the parties hereby request that such court reform
the provisions hereof in a manner to cause the covenants contained herein to be
enforceable as closely as possible to the way in which originally
written.
(c) Counterparts. This
Agreement may be executed in any number of counterparts, each of which, when so
executed, shall be deemed to be an original, and all of which shall together
constitute but a single instrument.
(d) Further
Assurances. The parties hereby agree to execute such other
documents and perform such other acts as may be reasonably necessary or
desirable to carry out the purposes of this Agreement.
(e) Notices. Any
and all notices provided for herein shall be in writing and shall be considered
as properly given if delivered to the party or sent by registered or certified
mail, postage prepaid, to the parties hereto at the addresses set out below
opposite their names or such other address or to the attention of such other
person as the party shall have specified by prior written notice. Any
notice under this Agreement shall be deemed to have been given (a) if delivered
in person, when so delivered or refused; (b) if sent by facsimile or overnight
courier, one (1) business day following transmission or delivery to courier (as
the case may be; or (c) if by registered or certified mail, three (3) days
following deposit in the U. S. Mail.
4
|
If
to the Client:
|
|
|
If
to SPC:
|
|
|
Copies
of all Notices to:
|
|
(f) Binding
Effect. This Agreement shall bind and inure to the benefit of
the parties, and their respective successors, heirs and assigns.
(g) Governing
Law. This Agreement and the obligations of the parties
hereunder shall be interpreted, construed and enforced in accordance with the
laws of the State of Georgia.
(h) Attorneys’ Fees and
Costs. If either party brings suit or arbitration against the
other to enforce the terms of this Agreement, the prevailing party shall be
entitled to recover all reasonable costs, including attorneys’ fees, from the
other party as part of any judgment or award.
(i) Assignment. This
Agreement shall not be assignable in whole or in part by SPC or Client without
the other party’s prior written consent, and any attempted assignment without
such consent shall be void, provided that Client may assign this Agreement to
any person acquiring all or substantially all of its assets without obtaining
such consent.
(j) Survival. The
provisions of this Agreement which by their terms survive the termination of
this Agreement to the extent set forth in such provisions.
[SIGNATURE
PAGE FOLLOWS]
5
IN
WITNESS WHEREOF, the undersigned parties hereto have duly executed this
Agreement on the date first above written.
|
EPGI/FIRECREEK
INC
|
|
|
By:
|
|
|
,
President and Chief Operating Officer
|
|
|
STRATEGIC
PARTNERS CONSULTING LLC
|
|
|
By:
|
|
|
,
President and Chief Executive
Officer
|
6
Schedule
14(c)
Violations
of Various Documents
None.
Schedule
14(g)
States
in which M3 is Qualified to do Business
____________.
Schedule
14(j)
Change
in Present Status
None.
Schedule
14(k)
Tax
Return Deficiencies
None.
Schedule
14(l)
Litigation
None.
Schedule
14(m)
Material
Violations
None.
Schedule
14(n)
Defaults
None.
Schedule
14(o)
Failure
to have all Permits and Approvals
None.
Schedule
14(p)
Properties
None.
Schedule
14(q)
Patents
and Trademarks
None.
Schedule
14(r)
Compliance
with Environmental Laws
None.
Schedule
14(s)
Absence
of Certain Changes or Events
None.
Schedule
14(v)
Employment
Contracts
None.
Schedule
15(h)
Liability
Level of EGPI at the Effective Date
Schedule
15(p)
Certificate
of Designation for the EGPI Preferred Stock