EXHIBIT 10.2
SHARE EXCHANGE AGREEMENT BETWEEN THE COMPANY AND
CD PROMO, LTD., DATED MAY 11, 2000
SHARE EXCHANGE AGREEMENT
by and among
TIBERON RESOURCES LTD.
and
the shareholders of
CD PROMO, LTD.
Dated as of May 11, 2000
TABLE OF CONTENTS
PAGE
THE SHARE EXCHANGE................................................................................................1
1.1 The Share Exchange..............................................................................1
1.2 Effective Date..................................................................................1
1.3 Exchange of CD Promo Common Stock...............................................................1
1.4 Exchange of Certificates........................................................................1
1.5 Reporting of Share Exchange.....................................................................2
1.6 Board of Directors of Tiberon Resources Ltd.....................................................2
THE CLOSING.......................................................................................................2
2.1 Time and Place of Closing.......................................................................2
2.2 Obligations of the CD Promo Shareholders at or Prior to the Closing.............................2
2.3 Obligations of Tiberon Resources Ltd. at or Prior to the Closing................................2
REPRESENTATIONS AND WARRANTIES OF
THE CD PROMO SHAREHOLDERS................................................................................3
3.1 Organization and Qualification..................................................................3
3.2 Capitalization..................................................................................3
3.3 Subsidiaries and Affiliates.....................................................................4
3.4 Options or Other Rights.........................................................................4
3.5 Ownership of Shares.............................................................................4
3.6 Validity and Execution of Agreement.............................................................4
3.7 No Conflict.....................................................................................4
3.8 Consents and Approvals..........................................................................5
3.9 Violation of Laws, Permits, etc.................................................................5
3.10 Books and Records...............................................................................5
3.11 CD Promo Financial Statements...................................................................5
3.12 Undisclosed Liabilities.........................................................................6
3.13 Title to Property; Encumbrances.................................................................6
3.14 Taxes...........................................................................................6
3.15 Litigation......................................................................................7
3.16 Contracts and Other Agreements..................................................................7
3.17 Accounts Receivable and Accounts Payable........................................................7
3.18 Compensation Arrangements; Officers, Directors and Employees....................................8
3.19 ERISA...........................................................................................8
3.20 Operations......................................................................................8
3.21 Intangible Property and Intellectual Property..................................................10
3.22 Employee Relations.............................................................................10
3.23 Insurance......................................................................................11
3.24 Licenses and Permits...........................................................................11
3.25 Year 2000 Compliance...........................................................................11
3.26 Brokers........................................................................................11
3.27 Acquisition of Tiberon Resources Ltd. Shares...................................................12
3.28 Disclosure.....................................................................................12
REPRESENTATIONS AND WARRANTIES OF TIBERON RESOURCES LTD..........................................................12
4.1 Organization and Qualification.................................................................12
4.2 Capitalization.................................................................................12
4.3 Subsidiaries and Affiliates....................................................................13
4.4 Options or Other Rights........................................................................13
4.5 Validity and Execution of Agreement............................................................13
4.6 No Conflict....................................................................................13
4.7 Consents and Approvals.........................................................................13
4.8 Violation of Laws, Permits, etc................................................................14
4.9 Books and Records..............................................................................14
4.10 Tiberon Resources Ltd. Financial Statements....................................................14
4.11 Undisclosed Liabilities........................................................................14
4.12 Title to Property; Encumbrances................................................................15
4.13 Taxes..........................................................................................15
4.14 Litigation.....................................................................................15
4.15 Contracts and Other Agreements.................................................................15
4.16 Compensation Arrangements; Officers, Directors and Employees...................................16
4.17 ERISA..........................................................................................16
4.18 Operations.....................................................................................16
4.19 Year 2000 Compliance...........................................................................18
4.20 Brokers........................................................................................18
4.21 Approval of Share Exchange.....................................................................18
4.22 SEC Reporting Status...........................................................................18
4.23 Investment Company.............................................................................18
4.24 OTC Bulletin Board Status......................................................................18
4.25 Disclosure.....................................................................................18
ACTIONS PRIOR TO CLOSING.........................................................................................18
5.1 Corporate Examinations and Investigations......................................................18
5.2 Conduct of Business............................................................................19
5.3 Preservation of Business.......................................................................19
5.4 Advice of Changes..............................................................................20
5.5 Other Agreements...............................................................................20
CONDITIONS PRECEDENT TO CLOSING..................................................................................20
6.1 Conditions Precedent to the Obligations of Tiberon Resources ▇▇▇.▇▇ Complete the
Closing........................................................................................20
6.2 Conditions Precedent to the Obligations of the CD Promo Shareholders to Complete
the Closing....................................................................................22
POST-CLOSING COVENANTS...........................................................................................23
7.1 Further Information............................................................................23
7.2 Record Retention...............................................................................23
7.3 Post-Closing Assistance........................................................................24
7.4 SEC Reporting..................................................................................24
SURVIVAL; INDEMNIFICATION........................................................................................24
8.1 Survival of Agreements, Representations and Warranties.........................................24
8.2 Indemnification by the CD Promo Shareholders...................................................24
8.3 Tiberon Resources Ltd.'s Indemnity.............................................................25
8.4 Method of Asserting Claims.....................................................................25
8.5 General Provisions.............................................................................27
TERMINATION OF AGREEMENT.........................................................................................27
9.1 Termination....................................................................................27
9.2 Survival After Termination.....................................................................28
MISCELLANEOUS....................................................................................................28
10.1 Expenses.......................................................................................28
10.2 Further Assurances.............................................................................28
10.3 Notices........................................................................................29
10.4 Arbitration....................................................................................30
10.5 Publicity......................................................................................30
10.6 Entire Agreement...............................................................................30
10.7 Waivers and Amendments.........................................................................30
10.8 Governing Law..................................................................................30
10.9 Binding Effect, No Assignment..................................................................31
10.10 Counterparts...................................................................................31
10.11 Exhibits and Schedules.........................................................................31
10.12 Effect of Disclosure on Schedules..............................................................31
10.13 Headings.......................................................................................31
10.14 Severability of Provisions.....................................................................31
THIS SHARE EXCHANGE AGREEMENT is entered into as of May 11, 2000, by
and among TIBERON RESOURCES LTD., a Nevada corporation ("TIBERON"), the persons
named on Schedule A attached to this Agreement (the "CD PROMO SHAREHOLDERS"),
and CD PROMO, LTD., an England corporation ("CD PROMO").
RECITALS
It is the intention of the parties hereto that CD Promo become a
wholly-owned subsidiary of Tiberon through the exchange of all outstanding
shares of CD Promo Common Stock for shares of Tiberon Common Stock on the
following terms:
AGREEMENT
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreements hereinafter set forth, in accordance with the provisions of
applicable law, the parties hereby agree as follows:
ARTICLE I
THE SHARE EXCHANGE
1.1 THE SHARE EXCHANGE. Subject to the terms and conditions of this
Agreement, at Closing, the CD Promo Shareholders shall tender all their
respective shares of CD Promo Common Stock to Tiberon in exchange for
Tiberon Common Stock, and CD Promo shall become a wholly-owned
subsidiary of Tiberon.
1.2 EFFECTIVE DATE. The Share Exchange will become effective upon the
proper filing of Articles of Share Exchange with the Secretary of State
of the State of Nevada.
1.3 EXCHANGE OF CD PROMO COMMON STOCK. The Common Stock shall be exchanged
in the Share Exchange as follows:
(a) Each certificate that prior to the Effective Date represented
an outstanding share of CD Promo Common Stock will be
exchanged for Seventy-Six Thousand One Hundred Sixty-Nine
(76,169) shares of Tiberon Common Stock. As a result, the CD
Promo Shareholders will collectively own fifty-one percent
(51%) or more of the then outstanding shares of Tiberon's
Common Stock.
(b) No fraction of a share of Tiberon Common Stock will be issued
upon such exchange of shares of CD Promo Common Stock. Instead
amounts of shares will be rounded to the nearest whole number.
1.4 EXCHANGE OF CERTIFICATES. At Closing, or as soon as practicable
thereafter, Tiberon shall deliver to each CD Promo Shareholder listed
on SCHEDULE A hereto, certificates representing
Share Exchange Agreement - Page 1
the whole number of shares of Tiberon Common Stock, and such CD Promo
Shareholder's certificate(s) of CD Promo Common Stock shall be
delivered to Tiberon.
1.5 REPORTING OF SHARE EXCHANGE. For federal, state, and local income tax
return reporting purposes, all parties agree to treat the Share
Exchange as a nontaxable exchange under Section 368 of the Internal
Revenue Code.
1.6 BOARD OF DIRECTORS OF TIBERON. At closing, or as soon as practicable
thereafter, the board of directors and officers of Tiberon shall be
replaced with the board of directors and officers of CD Promo.
ARTICLE II
THE CLOSING
2.1 TIME AND PLACE OF CLOSING. The closing of the Share Exchange (the
"CLOSING") shall, unless otherwise agreed to in writing by the parties,
take place at a mutually acceptable location at 10:00 AM, local time,
on or before twenty (20) days after Tiberon receives the CD Promo
Financial Statements as defined herein, and subject to the Sections
contained within this Agreement.
2.2 OBLIGATIONS OF THE CD PROMO SHAREHOLDERS AT OR PRIOR TO THE CLOSING. At
or prior to Closing, and subject to the satisfaction by Tiberon of its
obligations hereunder, the CD Promo Shareholders shall deliver to
Tiberon the following:
(a) A copy of the Articles of Incorporation of CD Promo certified
as of a date within thirty days of the Closing by the
appropriate authorities of England and certified by the
corporate secretary of CD Promo as to the absence of any
amendments between the date of certification by the
appropriate authorities and the Closing;
(b) A certificate from the appropriate authorities of England as
to the existence and good standing of CD Promo as of a date
within thirty (30) days of the Closing;
(c) A certificate of the corporate secretary of CD Promo attaching
thereto true and correct copies of the bylaws of CD Promo;
(d) The certificate of CD Promo referred to in SECTION 6.1 hereof;
and
(e) Such other documents as are required pursuant to this
Agreement or as may reasonably be requested from the CD Promo
Shareholders by Tiberon or its counsel as provided for in
SECTION 5 hereof.
(f) The certificates evidencing the shares of CD Promo Common
Stock owned by the CD Promo Shareholders, duly endorsed for
transfer to Tiberon.
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2.3 OBLIGATIONS OF TIBERON AT OR PRIOR TO THE CLOSING. At or prior to
Closing, and subject to the satisfaction by the CD Promo Shareholders
of their obligations hereunder, Tiberon shall deliver to the CD Promo
Shareholders the following:
(a) A copy of the Articles of Incorporation of Tiberon certified
as of a date within thirty days of the Closing by the
Secretary of State of the State of Nevada and certified by the
corporate secretary of Tiberon as to the absence of any
amendments between the date of certification by the Secretary
of State and the Closing;
(b) A certificate from the Secretary of State of the State of
Nevada as to the existence and good standing of Tiberon as of
a date within thirty (30) days of the Closing;
(c) A certificate of the corporate secretary of Tiberon attaching
thereto true and correct copies of the bylaws of Tiberon and
the corporate resolutions duly adopted by the board of
directors of Tiberon authorizing the consummation of the
transactions contemplated hereby;
(d) The certificate of Tiberon referred to in SECTION 6.2 hereof;
and
(e) Such other documents as are required pursuant to this
Agreement or as may reasonably be requested from Tiberon by
the CD Promo Shareholders or their counsel.
(f) Certificates evidencing the Tiberon Common Stock to be issued
to the CD Promo Shareholders pursuant to ARTICLE I hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE CD PROMO SHAREHOLDERS
Except as expressly set forth and specifically identified by the section number
of this Agreement in the schedule to be delivered to Tiberon by the CD Promo
Shareholders within twenty (20) days from the execution of this Agreement (the
"CD PROMO SHAREHOLDERS DISCLOSURE SCHEDULE"), the CD Promo Shareholders
represent, warrant, and covenant to Tiberon as follows:
3.1 ORGANIZATION AND QUALIFICATION. CD Promo is a corporation duly
organized, validly existing and in good standing under the laws of
England, and has all requisite corporate power and authority to (a)
own, lease and operate its properties and assets as they are now owned,
leased and operated and (b) carry on its business as currently
conducted and as proposed to be conducted. CD Promo is duly qualified
or licensed to do business in each jurisdiction in which the failure to
be so qualified or licensed could have a material adverse effect in the
business, operations, properties, assets, liabilities, prospects, or
condition (financial or otherwise) of CD Promo (hereinafter a "MATERIAL
EFFECT").
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3.2 CAPITALIZATION. The issued and outstanding capital stock of CD Promo
consists of 110 shares of common stock. All of the issued and
outstanding shares of capital stock of CD Promo are validly issued,
fully paid, and nonassessable, and none of such shares have been issued
in violation of the preemptive rights of any person.
3.3 SUBSIDIARIES AND AFFILIATES. CD Promo does not own or hold, directly or
indirectly, any equity, debt, or other interest in any entity or
business or any option to acquire any such interest.
3.4 OPTIONS OR OTHER RIGHTS. No options, warrants, calls, commitments or
other rights to acquire, sell or issue shares of capital stock or other
equity interests of CD Promo, whether upon conversion of other
securities or otherwise, are issued or outstanding, and there is no
agreement or understanding with respect to the voting of such capital
stock or other equity interests.
3.5 OWNERSHIP OF SHARES. The shares of CD Promo Common Stock are owned of
record and beneficially by the CD Promo Shareholders as set forth on
Schedule A. The CD Promo Shareholders possess full authority and legal
right to sell, transfer, and assign the entire legal and beneficial
ownership of the shares of CD Promo Common Stock, free from all liens,
claims, and encumbrances of any kind; and there are no outstanding
rights or obligations granted by the CD Promo Shareholders to purchase
or acquire any of the shares of CD Promo Common Stock or any interest
in any of the shares of CD Promo Common Stock. Upon transfer of the
shares of CD Promo Common Stock to Tiberon hereunder at the Closing,
Tiberon will receive the entire legal and beneficial interest in the
shares of CD Promo Common Stock, free and clear of all liens, claims,
and encumbrances and subject to no legal or equitable restrictions of
any kind.
3.6 VALIDITY AND EXECUTION OF AGREEMENT. Each of the CD Promo Shareholders
has the full legal right, capacity and power required to enter into,
execute and deliver this Agreement and to carry out the transactions
contemplated. This Agreement has been duly executed and delivered by
each of the CD Promo Shareholders and constitutes the valid and binding
obligation of each of the CD Promo Shareholders, enforceable in
accordance with its terms, subject to the qualification that
enforcement of the rights and remedies created hereby is subject to (a)
bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors and
(b) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
3.7 NO CONFLICT. None of the execution, delivery, or performance of this
Agreement does or will: (a) result in any violation or be in conflict
with or constitute a default under any term or provision of the
Articles of Incorporation or bylaws of CD Promo or any term or
provision of any judgment, decree, order, statute, injunction, rule, or
regulation applicable to CD Promo or any CD Promo Shareholder, or of
any material note, bond, mortgage, indenture, lease, license,
franchise, agreement, or other instrument or obligation to which CD
Promo or any CD Promo Shareholder is bound; (b) result in the creation
of any material option,
Share Exchange Agreement - Page 4
pledge, security interest, lien, charge, encumbrance, or restriction,
whether imposed by agreement, understanding, law or otherwise, except
those arising under applicable federal or state securities laws
(hereinafter an "ENCUMBRANCE") upon any of the properties or assets of
CD Promo or any CD Promo Shareholder pursuant to any such term or
provision; or (c) constitute a default under, terminate, accelerate,
amend or modify, or give any party the right to terminate, accelerate,
amend, modify, abandon, or refuse to perform or comply with, any
material contract, agreement, arrangement, commitment, or plan to which
CD Promo or any CD Promo Shareholder is a party, or by which CD Promo
or any CD Promo Shareholder or any of their respective properties or
assets may be subject or bound.
3.8 CONSENTS AND APPROVALS. No federal, state, foreign or other regulatory
approvals are required to be obtained, nor any regulatory requirements
complied with, by CD Promo or any CD Promo Shareholder in connection
with the Share Exchange.
3.9 VIOLATION OF LAWS, PERMITS, ETC.
(a) CD Promo is not in violation of any term or provision of its
Articles of Incorporation or bylaws, or of any material term
or provision of any judgment, decree, order, statute, law,
injunction, rule, ordinance, or governmental regulation that
is applicable to it and where the failure to comply with which
would have a Material Effect.
(b) CD Promo has maintained in full force and effect all
certificates, licenses, and permits material to the conduct of
its business, and has not received any notification that any
revocation or limitation thereof is threatened or pending.
3.10 BOOKS AND RECORDS. The books and records of CD Promo (including,
without limitation, the books of account, minute books, and stock
record books) are complete and correct in all material respects and
have been maintained in accordance with sound business practices. The
minute books of CD Promo are complete and current in all material
respects and, as applicable, accurately reflect all actions taken by
the shareholders and the board of directors of CD Promo since the date
of inception of CD Promo, and all signatures contained therein are the
true signatures of the persons whose signatures they purport to be.
3.11 CD PROMO FINANCIAL STATEMENTS.
(a) The audited balance sheets of CD Promo as of the most recent
period when delivered, and the related audited statements of
income, statements of cash flow and statements of shareholders
equity for the periods then ended, true and complete copies of
which will be delivered to Tiberon within seventy (70) days
from execution of this Agreement to comply with SEC filing
requirements, present fairly, in all material respects, the
financial position of CD Promo as at such dates and the
results of operations of CD Promo for the periods then ended,
in accordance with United States generally accepted accounting
principles ("USGAAP") consistently applied for the periods
covered thereby.
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(b) The financial statements referred to in paragraph (a) are
hereinafter referred to as the CD PROMO FINANCIAL STATEMENTS.
3.12 UNDISCLOSED LIABILITIES. CD Promo does not have any material direct or
indirect indebtedness, liability, claim, loss, damage, deficiency,
obligation or responsibility, fixed or unfixed, ▇▇▇▇▇▇ or inchoate,
liquidated or unliquidated, secured or unsecured, accrued, absolute,
contingent or otherwise (all of the foregoing being collectively
referred to as "LIABILITIES" and individually as a "LIABILITY"), of a
kind required by USGAAP to be set forth on a financial statement that
is not fully and adequately reflected or reserved against on the CD
Promo Financial Statements. CD Promo does not have any Liabilities,
whether or not of a kind required by USGAAP to be set forth on a
financial statement, other than (a) Liabilities incurred in the
ordinary course of business since the date of the latest balance sheet
included in the CD Promo Financial Statements that are consistent with
past practice and are included in the latest CD Promo Financial
Statements, (b) Liabilities that are fully reflected on or reserved
against on the latest balance sheet included in the CD Promo Financial
Statements, or (c) as specifically disclosed in the CD Promo Financial
Statements.
3.13 TITLE TO PROPERTY; ENCUMBRANCES. CD Promo has good and indefeasible
title to and other legal right to use all properties and assets, real,
personal and mixed, tangible and intangible, reflected as owned on the
latest balance sheet included in the CD Promo Financial Statements or
acquired after the date of such balance sheet, except for properties
and assets disposed of in accordance with customary practice in the
business or disposed of for full and fair value since the date of such
balance sheet in the ordinary course of business consistent with past
practice and except for matters that would not have a Material Effect.
3.14 TAXES. All returns, reports, information returns, or other documents
(including any related or supporting information) filed or required to
be filed with any federal, state, local, or foreign governmental entity
or others authority in connection with the determination, assessment or
collection of any Tax (whether or not such Tax is imposed on CD Promo)
or the administration of any laws, regulations or administrative
requirements relating to any Tax(hereinafter "TAX RETURNS"), reports
and declarations of estimated tax or estimated tax deposit forms
required to be filed by CD Promo have been duly and timely filed; CD
Promo has paid all taxes, charges, fees, levies or other assessments
imposed by any federal, state, local or foreign taxing authority,
whether disputed or not, including, without limitation, income,
capital, estimated, excise, property, sales, transfer, withholding,
employment, payroll, and franchise taxes and such terms shall include
any interest, penalties or additions attributable to or imposed on or
with respect to such assessments and any expenses incurred in
connection with the settlement of any tax liability (hereinafter
"TAXES") which have become due whether pursuant to such returns or any
assessment received by it or otherwise, and has paid all installments
of estimated Taxes due; and all Taxes which CD Promo is required by law
to withhold or to collect have been duly withheld and collected, and
have been paid over to the proper court, tribunal, arbitrator or any
government or political subdivision thereof, whether federal, state,
county, local or foreign, or any agency, authority,
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official or instrumentality of any such government or political
subdivision (hereinafter "GOVERNMENTAL OR REGULATORY BODY"). There are
no tax liens upon any of the assets or properties of CD Promo except
for any lien, pledge, hypothecation, mortgage, security interest,
claim, lease, charge, option, right of first refusal, easement,
servitude, transfer restriction under any member or similar agreement,
encumbrance or any other restriction or limitation whatsoever, other
than (i) materialmen's, mechanics', repairmen's or other like liens
arising in the ordinary course of business for amounts either not yet
due or being contested in good faith and by appropriate proceedings so
long as such proceedings shall not involve any material danger of sale,
forfeiture or loss of any part of the assets and shall have been
disclosed to Tiberon hereunder, or (ii) any lien arising as a result of
any act or omission of Tiberon (hereinafter "LIENS") for Taxes not yet
due. CD Promo is not a party to any express tax settlement agreement,
arrangement, policy or guideline, formal or informal (a "SETTLEMENT
AGREEMENT"), and CD Promo does not have any obligation to make payments
under any Settlement Agreement.
3.15 LITIGATION.
(a) There is no action, proceeding, investigation, or inquiry
pending or, to the best of CD Promo's knowledge, threatened
(i) against or affecting any of CD Promo's assets or business
that, if determined adversely to CD Promo, would result in a
Material Effect or (ii) that questions this Agreement or any
action contemplated by this Agreement or in connection with
the Share Exchange.
(b) CD Promo has no knowledge of any state of facts or of the
occurrence or nonoccurrence of any event or group of related
events, that should reasonably cause CD Promo to determine
that there exists any basis for any material claim against C
Promo for any of the matters described in paragraph (a) above.
3.16 CONTRACTS AND OTHER AGREEMENTS. SECTION 3.16 to the CD Promo
Shareholder Disclosure Schedule contains a complete and correct list as
of the date hereof of all material agreements, contracts, and
commitments (and all amendments thereto), written or oral, to which CD
Promo is a party or by which any of its properties is bound. CD Promo
will make available to Tiberon complete and correct copies of all
material written agreements, contracts, and commitments, together with
all amendments thereto, and accurate (in all material respects)
descriptions of all material oral agreements. Such agreements,
contracts, and commitments are in full force and effect, and, to the
best of CD Promo's knowledge, all other parties to such agreements,
contracts, and commitments have performed all obligations required to
be performed by them to date thereunder in all material respects and
are not in default thereunder in any material respect.
3.17 ACCOUNTS RECEIVABLE AND ACCOUNTS PAYABLE. All accounts receivable
reflected on the balance sheet of CD Promo included in the CD Promo
Financial Statements, and all accounts receivable arising subsequent to
the date of the CD Promo Financial Statements, (a) have arisen from
BONA FIDE sales transactions in the ordinary course of business on
ordinary trade
Share Exchange Agreement - Page 7
terms and (b) have been collected or are collectible in the ordinary
course of business in the aggregate recorded amounts thereof in
accordance with their terms without valid set-off or counterclaim. CD
Promo has made payments on accounts payable and other current
obligations arising subsequent to the date of the CD Promo Financial
Statements, in accordance with past practice of the business of CD
Promo.
3.18 COMPENSATION ARRANGEMENTS; OFFICERS, DIRECTORS AND EMPLOYEES. SECTION
3.18 to the CD Promo Shareholder Disclosure Schedule sets forth: (a)
the name of all present officers, directors and employees of CD Promo
and current annual salary, including any promised, expected or
customary bonus or such other amount, and (b) the names and titles of
all directors and officers of CD Promo. CD Promo has not made a
commitment or agreement (verbally or in writing) to increase the
compensation or to modify the conditions or terms of employment of any
person listed in SECTION 3.18 to the CD Promo Shareholder Disclosure
Schedule. To the knowledge of CD Promo, none of such persons has made a
threat to CD Promo to terminate such person's relationship with CD
Promo.
3.19 ERISA. Except as set forth in SECTION 3.19 to the CD Promo Shareholder
Disclosure Schedule, there are no employee benefit plans as defined in
ERISA ("PLANS") maintained for the benefit of, or covering, any
employee, former employee, independent contractor or former independent
contractor of CD Promo, or their dependents or their beneficiaries, or
otherwise, now or heretofore contributed to by CD Promo, and no such
Plan is or has ever been subject to ERISA.
3.20 OPERATIONS. Except as expressly authorized by this Agreement, and
except as set forth in SECTION 3.20 to the CD Promo Shareholder
Disclosure Schedule, since the date of the latest CD Promo Financial
Statements, CD Promo has not:
(a) amended its Articles of Incorporation or By-Laws or merged
with or into or consolidated with any other entity, or changed
or agreed to rearrange in any manner the character of the
business of CD Promo;
(b) issued, sold or purchased options or rights to subscribe to,
or entered into any contracts or commitments to issue, sell or
purchase, any shares of its capital stock or other equity
interests;
(c) entered into, amended or terminated any (i) employment
agreement or collective bargaining agreement, (ii) adopted,
entered into or amended any arrangement which is, or would be,
a Plan or (iii) made any change in any actuarial methods or
assumptions used in funding any Plan or in the assumptions or
factors used in determining benefit equivalencies thereunder;
(d) issued any note, bond or other debt security, created,
incurred or assumed any indebtedness for borrowed money other
than in the ordinary course of business in
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connection with trade payables, or guaranteed any indebtedness
for borrowed money or any capitalized lease obligation;
(e) declared, set aside or paid any dividends or declared or made
any other distributions of any kind to the shareholders, or
made any direct or indirect redemption, retirement, purchase
or other acquisition of any shares of its capital stock or
other equity interests;
(f) knowingly waived any right of material value to the business
of CD Promo;
(g) made any change in its accounting methods or practices or made
any changes in depreciation or amortization policies or rates
adopted by it or made any material write-down of inventory or
material write-off as uncorrectable of accounts receivable;
(h) made any wage or salary increase or other compensation payable
or to become payable or bonus, or increase in any other direct
or indirect compensation, for or to any of its officers,
directors, employees, consultants, agents or other
representatives, or any accrual for or commitment or agreement
to make or pay the same, other than increases made in the
ordinary course consistent with past practice;
(i) entered into any transactions with any of its affiliates,
shareholders, officers, directors, employees, consultants,
agents or other representatives (other than employment
arrangements made in the ordinary course of business
consistent with past practice), or any affiliate of any
shareholder, officer, director, consultant, employee, agent or
other representative;
(j) made any payment or commitment to pay any severance or
termination pay to any person or any of its officers,
directors, employees, consultants, agents or other
representatives, other than payments or commitments to pay
such persons or their officers, directors, employees in the
ordinary course of business;
(k) except in the ordinary course of business, (i) entered into
any lease (as lessor or lessee), (ii) sold, abandoned or made
any other disposition of any of its assets or properties other
than in the ordinary course of business consistent with past
practice, (iii) granted or suffered any Lien on any of its
assets or properties other than sales of inventory in the
ordinary course of business, or (iv) entered into or amended
any material contract or other agreement to which it is a
party, or by or to which it or its assets or properties are
bound or subject, or pursuant to which it agrees to indemnify
any person or to refrain from competing with any person, in
each case or type required to be disclosed pursuant to SECTION
3.15 hereof;
Share Exchange Agreement - Page 9
(l) except in the ordinary course of business, incurred or assumed
any debt, obligation or liability (whether absolute or
contingent and whether or not currently due and payable);
(m) except for inventory or equipment acquired in the ordinary
course of business, made any acquisition of all or any part of
the assets, properties, capital stock or business of any other
person;
(n) except in the ordinary course of business, paid, directly or
indirectly, any of its Liabilities before the same became due
in accordance with their terms or otherwise than in the
ordinary course of business, except to obtain the benefit of
discounts available for early payment;
(o) except in the ordinary course of business, created, incurred
or assumed any indebtedness for borrowed money, or guaranteed
any indebtedness for borrowed money or any capitalized lease
obligation, in each case in excess of $5,000 individually or
in the aggregate;
(p) except in the ordinary course of business, made any capital
expenditures or commitments for capital expenditures in
aggregate amount exceeding $5,000; or
(q) except in the ordinary course of business, terminated, failed
to renew, amended or entered into any contract or other
agreement of a type required to be disclosed pursuant to
SECTION 3.16.
3.21 INTANGIBLE PROPERTY AND INTELLECTUAL PROPERTY. CD Promo possesses all
of the necessary licenses, trademarks, trade names, domain names,
patents (hereinafter "INTELLECTUAL PROPERTY RIGHTS") necessary to
conduct its business in the manner that is currently being conducted
and anticipates conducting in the future. All of such Intellectual
Property Rights are held in the name of CD Promo. None of the
Intangible Property of CD Promo infringes upon the rights of any other
person in any material respect or, to the knowledge of CD Promo, is so
infringed upon by any other person or its property. CD Promo has not
received any notice of any claim of any other person relating to any of
the Intangible Property or any process or confidential information of
CD Promo and does not know of any basis for any such charge or claim.
Except for the Intangible Property, no other material intellectual
property or intangible property rights are required for CD Promo to
conduct the business of CD Promo in the ordinary course consistent with
past practice. Except as separately identified in SECTION 3.21 of the
CD Promo Shareholder Disclosure Schedule, no approval or consent of any
person is needed so that the interest of CD Promo in the Intangible
Property shall continue to be in full force and effect and enforceable
by CD Promo following the transactions contemplated by this Agreement.
3.22 EMPLOYEE RELATIONS. CD Promo is not a party any agreement with any
labor organization, collective bargaining or similar agreement with
respect to its employees. There are no
Share Exchange Agreement - Page 10
material complaints, grievances or arbitrations, employment-related
litigation, administrative proceedings or controversies either pending
or, to the knowledge of CD Promo, threatened, involving any employee,
applicant for employment, or former employee of CD Promo against CD
Promo. During the past five years, CD Promo has not suffered or
sustained any labor dispute resulting in any work stoppage and no such
work stoppage is, to the knowledge of CD Promo, threatened. To the
knowledge of CD Promo, there are no attempts presently being made to
organize any employees employed by CD Promo.
3.23 INSURANCE. CD Promo has adequate policies of insurance for its
operations. CD Promo is not in default with respect to any material
provision contained in any policy or binder of insurance and has not
failed to give any notice or present any claim under any such policy or
binder in due and timely fashion. There are no outstanding unpaid
claims under any such policy or binder which have gone unpaid for more
than 45 days or as to which the carrier has disclaimed liability. CD
Promo has not received any notice of cancellation or non renewal of any
such policy or binder. CD Promo has not received any notice from any of
its insurance carriers that any insurance premiums will be materially
increased in the future or that any existing insurance coverage will
not be available in the future on substantially the same terms as now
in effect.
3.24 LICENSES AND PERMITS. Except as set forth in SECTION 3.24 of the CD
Promo Shareholder Disclosure Schedule, no material government permits,
licenses, domain name and other registrations, and other consents and
authorizations (federal, state, local and foreign) of any Governmental
or Regulatory Body (collectively, "PERMITS") is required to be obtained
by CD Promo in connection with its properties or the business of CD
Promo. CD Promo has not received any notice of any claim of revocation
of any such Permit and has no knowledge of any event which would be
likely to give rise to such a claim.
3.25 YEAR 2000 COMPLIANCE. All data of any type that includes date
information or which is otherwise derived from, dependent on or related
to date information ("DATE DATA") and any software, microcode or
hardware system or component, including any electric or electronically
controlled system or component, that processes any Date Data and (a)
that is installed, in development or on order by CD Promo for its
internal use, or (b) which CD Promo sells, supports, maintains,
operates, warrants, leases, licenses, assigns or otherwise provides as
an integral part of its products or services (or has sold, supported,
maintained, operated, warranted, leased, licensed, assigned or
otherwise provided in the past as an integral part of its products or
services ("DATE-SENSITIVE SYSTEMS") of CD Promo are (i) with respect to
Date Data, in proper format and accurate for all dates in the twentieth
and twenty-first centuries, and (ii) with respect to Date-Sensitive
Systems, correctly and accurately processes all Date Data without
interruption before, during and after January 1, 2000, including those
relating to the twentieth and twenty-first centuries, without loss of
any functionality or performance, including but not limited to
calculating, comparing, sequencing, storing and displaying such Date
Data (including all leap year considerations and the quad-centennial
rule), when used as a stand alone system or in combination with other
software or hardware ("YEAR 2000 COMPLIANT").
Share Exchange Agreement - Page 11
3.26 BROKERS. Except for the assistance of Amerivet Securities, Inc.,
Registered Investment Advisors, all negotiations relating to this
Agreement and the transactions contemplated hereby have been carried
out by the CD Promo Shareholders directly with Tiberon without the
intervention of any other person on behalf of the CD Promo Shareholders
in such manner as to give rise to any valid claim by any person against
the CD Promo Shareholders or Tiberon for a finder's fee, brokerage
commission or similar payment.
3.27 ACQUISITION OF TIBERON SHARES. Each CD Promo Shareholder acknowledges
that the Tiberon shares of Common Stock are restricted securities under
the Securities Act and represents that such CD Promo Shareholder (i) is
acquiring the Tiberon shares of Common Stock for his own account
without a view to distribution within the meaning of the Securities
Act; (ii) has received from Tiberon all information that he has deemed
necessary to make an informed investment decision with respect to an
investment in Tiberon in general and the Tiberon shares of Common Stock
in particular; (iii) is financially able to bear the economic risks of
an investment in Tiberon; and (iv) has such knowledge and experience in
financial and business matters in general and with respect to
investments of a nature similar to the Tiberon shares of Common Stock
so as to be capable, by reason of such knowledge and experience, of
evaluating the merits and risks of, and making an informed business
decision with regard to, the acquisition of the Tiberon shares of
Common Stock. Each CD Promo Shareholder understands and agrees that the
certificates evidencing the Tiberon shares of Common Stock shall bear
the usual restrictive legend pertaining to Rule 144 under the
Securities Act and that the Tiberon shares of Common Stock will not be
transferable except in accordance with a valid exemption from
registration to the satisfaction of the Tiberon.
3.28 DISCLOSURE. To the knowledge of the CD Promo Shareholders, neither this
Agreement, nor any Schedule or Exhibit to this Agreement, contains an
untrue statement of a material fact or omits a material fact necessary
to make the statements contained herein or therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TIBERON
Except as expressly set forth and specifically identified by the section number
of this Agreement in the schedule delivered by Tiberon to the CD Promo
Shareholders within twenty (20) days from the execution of this Agreement (the
"TIBERON DISCLOSURE SCHEDULE"), Tiberon represents, warrants, and covenants to
the CD Promo Shareholders as follows:
4.1 ORGANIZATION AND QUALIFICATION. Tiberon is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Nevada and has all requisite corporate power and authority to
(a) own, lease and operate its properties and assets as they are now
owned, leased and operated and (b) carry on its business as currently
conducted and as proposed to be conducted. Tiberon is duly qualified or
licensed to do business in each jurisdiction in which the failure to be
so qualified or licensed could have a Material Effect.
Share Exchange Agreement - Page 12
4.2 CAPITALIZATION. The issued and outstanding capital stock of Tiberon
consists of shares of 8,050,000 common stock, $0.001 par value per
share. All of the issued and outstanding shares of capital stock of
Tiberon are validly issued, fully paid, and nonassessable, and none of
such shares have been issued in violation of the preemptive rights of
any person. The Tiberon shares of Common Stock shall be validly issued,
fully paid, and nonassessable.
4.3 TIBERON AND AFFILIATES. Tiberon does not own or hold, directly or
indirectly, any equity, debt, or other interest in any entity or
business or any option to acquire any such interest.
4.4 OPTIONS OR OTHER RIGHTS. No options, warrants, calls, commitments or
other rights to acquire, sell or issue shares of capital stock or other
equity interests of Tiberon whether upon conversion of other securities
or otherwise, are issued or outstanding, and there is no agreement or
understanding with respect to the voting of such capital stock or other
equity interests.
4.5 VALIDITY AND EXECUTION OF AGREEMENT. The execution and performance of
this Agreement have been duly and validly authorized by the board of
directors of Tiberon and no other corporate action by Tiberon is
necessary to authorize the execution, delivery, and performance of this
Agreement, except for the change of the corporate name described in
SECTION 6.2 hereof. Tiberon has the corporate power and authority to
execute and perform this Agreement and to carry out the transactions
contemplated hereby. This Agreement has been duly and validly executed
on behalf of Tiberon and is a valid and binding obligation of Tiberon,
enforceable in accordance with its terms, subject to the qualification
that enforcement of the rights and remedies created hereby is subject
to (a) bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of
creditors and (b) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
4.6 NO CONFLICT. None of the execution, delivery, or performance of this
Agreement does or will: (a) result in any violation or be in conflict
with or constitute a default under any term or provision of the
Articles of Incorporation or bylaws of Tiberon or any term or provision
of any judgment, decree, order, statute, injunction, rule, or
regulation applicable to Tiberon, or of any material note, bond,
mortgage, indenture, lease, license, franchise, agreement, or other
instrument or obligation to which Tiberon is bound; (b) result in the
creation of any Encumbrance upon any of the properties or assets of
Tiberon pursuant to any such term or provision; or (c) constitute a
default under, terminate, accelerate, amend or modify, or give any
party the right to terminate, accelerate, amend, modify, abandon, or
refuse to perform or comply with, any material contract, agreement,
arrangement, commitment, or plan to which Tiberon is a party, or by
which Tiberon or any of its properties or assets may be subject or
bound.
4.7 CONSENTS AND APPROVALS. No federal, state, or other regulatory
approvals are required to be obtained, nor any regulatory requirements
complied with, by Tiberon in connection with the Share Exchange.
Share Exchange Agreement - Page 13
4.8 VIOLATION OF LAWS, PERMITS, ETC.
(a) Tiberon is not in violation of any term or provision of its
Articles of Incorporation or bylaws, or of any material term
or provision of any judgment, decree, order, statute, law,
injunction, rule, ordinance, or governmental regulation that
is applicable to it and where the failure to comply with which
would have a Material Effect.
(b) Tiberon has maintained in full force and effect all
certificates, licenses, and permits material to the conduct of
its business, and has not received any notification that any
revocation or limitation thereof is threatened or pending.
4.9 BOOKS AND RECORDS. The books and records of Tiberon (including, without
limitation, the books of account, minute books, and stock record books)
are complete and correct in all material respects and have been
maintained in accordance with sound business practices. The minute
books of Tiberon are complete and current in all material respects and,
as applicable, accurately reflect all actions taken by the shareholders
and the board of directors of Tiberon since the date of inception of
Tiberon, and all signatures contained therein are the true signatures
of the persons whose signatures they purport to be.
4.10 TIBERON FINANCIAL STATEMENTS.
(a) The audited balance sheets of Tiberon as of December 31, 1999,
and the related audited statements of income, statements of
cash flow and statements of shareholders equity for the year
then ended, true and complete copies of which have been
delivered to the CD Promo Shareholders, present fairly, in all
material respects, the financial position of Tiberon as at
such dates and the results of operations of Tiberon for the
year then ended, in accordance with USGAAP consistently
applied for the periods covered thereby.
(b) The financial statements referred to in paragraph (a) above
are hereinafter referred to as the TIBERON FINANCIAL
STATEMENTS.
4.11 UNDISCLOSED LIABILITIES. Tiberon does not have any Liabilities of a
kind required by USGAAP to be set forth on a financial statement that
is not fully and adequately reflected or reserved against on the
Tiberon Financial Statements. Tiberon does not have any Liabilities,
whether or not of a kind required by USGAAP to be set forth on a
financial statement, other than (a) Liabilities incurred in the
ordinary course of business since the date of the latest balance sheet
included in the Tiberon Financial Statements that are consistent with
past practice and are included in the latest Tiberon Financial
Statements, (b) Liabilities that are fully reflected on or reserved
against on the latest balance sheet included in the Tiberon Financial
Statements, or (c) as specifically disclosed in the Tiberon Financial
Statements.
Share Exchange Agreement - Page 14
4.12 TITLE TO PROPERTY; ENCUMBRANCES. Tiberon has good and indefeasible
title to and other legal right to use all properties and assets, real,
personal and mixed, tangible and intangible, reflected as owned on the
latest balance sheet included in the Tiberon Financial Statements or
acquired after the date of such balance sheet, except for properties
and assets disposed of in accordance with customary practice in the
business or disposed of for full and fair value since the date of such
balance sheet in the ordinary course of business consistent with past
practice and except for matters that would not have a Material Effect.
4.13 TAXES. All Tax Returns, reports and declarations of estimated tax or
estimated tax deposit forms required to be filed by Tiberon have been
duly and timely filed; Tiberon has paid all Taxes which have become due
whether pursuant to such returns or any assessment received by it or
otherwise, and has paid all installments of estimated Taxes due; and
all Taxes which Tiberon is required by law to withhold or to collect
have been duly withheld and collected, and have been paid over to the
proper Governmental or Regulatory Body. There are no tax liens upon any
of the assets or properties of Tiberon except for Liens for Taxes not
yet due. Tiberon is not a party to any Settlement Agreement, and
Tiberon does not have any obligation to make payments under any
Settlement Agreement.
4.14 LITIGATION.
(a) There is no action, proceeding, investigation, or inquiry
pending or, to the best of Tiberon's knowledge, threatened (i)
against or affecting any of Tiberon's assets or business that,
if determined adversely to Tiberon, would result in a Material
Effect or (ii) that questions this Agreement or any action
contemplated by this Agreement or in connection with the Share
Exchange.
(b) Tiberon has no knowledge of any state of facts or of the
occurrence or nonoccurrence of any event or group of related
events, that should reasonably cause Tiberon to determine that
there exists any basis for any material claim against Tiberon
for any of the matters described in paragraph (a) above.
4.15 CONTRACTS AND OTHER AGREEMENTS. SECTION 4.15 to the Tiberon Disclosure
Schedule contains a complete and correct list as of the date hereof of
all material agreements, contracts, and commitments (and all amendments
thereto), written or oral, to which Tiberon is a party or by which any
of its properties is bound. Tiberon has made available to the CD Promo
Shareholders complete and correct copies of all material written
agreements, contracts, and commitments, together with all amendments
thereto, and accurate (in all material respects) descriptions of all
material oral agreements. Such agreements, contracts, and commitments
are in full force and effect, and, to the best of Tiberon's knowledge,
all other parties to such agreements, contracts, and commitments have
performed all obligations required to be performed by them to date
thereunder in all material respects and are not in default thereunder
in any material respect.
Share Exchange Agreement - Page 15
4.16 COMPENSATION ARRANGEMENTS; OFFICERS, DIRECTORS AND EMPLOYEES. Tiberon
does not pay any compensation to any of its officers and directors and
has no employees. Tiberon has not made a commitment or agreement
(verbally or in writing) to pay any compensation to such persons.
4.17 ERISA. There are no Plans maintained for the benefit of, or covering,
any employee, former employee, independent contractor or former
independent contractor of Tiberon or their dependents or their
beneficiaries, or otherwise, now or heretofore contributed to by
Tiberon and no such Plan is or has ever been subject to ERISA.
4.18 OPERATIONS. Except as expressly authorized by this Agreement, or except
as set forth in SECTION 4.18 to the Tiberon Disclosure Schedule, since
the date of the latest Tiberon Financial Statements, Tiberon has not:
(a) amended its Articles of Incorporation or By-Laws or merged
with or into or consolidated with any other entity, or changed
or agreed to rearrange in any manner the character of the
business of Tiberon;
(b) issued, sold or purchased options or rights to subscribe to,
or entered into any contracts or commitments to issue, sell or
purchase, any shares of its capital stock or other equity
interests;
(c) entered into, amended or terminated any (i) employment
agreement or collective bargaining agreement, (ii) adopted,
entered into or amended any arrangement which is, or would be,
a Plan or (iii) made any change in any actuarial methods or
assumptions used in funding any Plan or in the assumptions or
factors used in determining benefit equivalencies thereunder;
(d) issued any note, bond or other debt security, created,
incurred or assumed any indebtedness for borrowed money other
than in the ordinary course of business in connection with
trade payables, or guaranteed any indebtedness for borrowed
money or any capitalized lease obligation;
(e) declared, set aside or paid any dividends or declared or made
any other distributions of any kind to the shareholders, or
made any direct or indirect redemption, retirement, purchase
or other acquisition of any shares of its capital stock or
other equity interests;
(f) knowingly waived any right of material value to the business
of Tiberon;
(g) made any change in its accounting methods or practices or made
any changes in depreciation or amortization policies or rates
adopted by it or made any material write-down of inventory or
material write-off as uncorrectable of accounts receivable;
Share Exchange Agreement - Page 16
(h) made any wage or salary increase or other compensation payable
or to become payable or bonus, or increase in any other direct
or indirect compensation, for or to any of its officers,
directors, employees, consultants, agents or other
representatives, or any accrual for or commitment or agreement
to make or pay the same, other than increases made in the
ordinary course consistent with past practice;
(i) entered into any transactions with any of its affiliates,
shareholders, officers, directors, employees, consultants,
agents or other representatives (other than employment
arrangements made in the ordinary course of business
consistent with past practice), or any affiliate of any
shareholder, officer, director, consultant, employee, agent or
other representative;
(j) made any payment or commitment to pay any severance or
termination pay to any person or any of its officers,
directors, employees, consultants, agents or other
representatives, other than payments or commitments to pay
such persons or their officers, directors, employees in the
ordinary course of business;
(k) except in the ordinary course of business, (i) entered into
any lease (as lessor or lessee), (ii) sold, abandoned or made
any other disposition of any of its assets or properties other
than in the ordinary course of business consistent with past
practice, (iii) granted or suffered any Lien on any of its
assets or properties other than sales of inventory in the
ordinary course of business, or (iv) entered into or amended
any material contract or other agreement to which it is a
party, or by or to which it or its assets or properties are
bound or subject, or pursuant to which it agrees to indemnify
any person or to refrain from competing with any person, in
each case or type required to be disclosed pursuant to SECTION
4.14 hereof;
(l) except in the ordinary course of business, incurred or assumed
any debt, obligation or liability (whether absolute or
contingent and whether or not currently due and payable);
(m) except for inventory or equipment acquired in the ordinary
course of business, made any acquisition of all or any part of
the assets, properties, capital stock or business of any other
person;
(n) except in the ordinary course of business, paid, directly or
indirectly, any of its Liabilities before the same became due
in accordance with their terms or otherwise than in the
ordinary course of business, except to obtain the benefit of
discounts available for early payment;
(o) except in the ordinary course of business, created, incurred
or assumed any indebtedness for borrowed money, or guaranteed
any indebtedness for borrowed money or any capitalized lease
obligation, in each case in excess of $5,000 individually or
in the aggregate;
Share Exchange Agreement - Page 17
(p) except in the ordinary course of business, made any capital
expenditures or commitments for capital expenditures in
aggregate amount exceeding $5,000; or
(q) except in the ordinary course of business, terminated, failed
to renew, amended or entered into any contract or other
agreement of a type required to be disclosed pursuant to
SECTION 4.15.
4.19 YEAR 2000 COMPLIANCE. All Date Data and Date-Sensitive Systems of
Tiberon are Year 2000 Compliant.
4.20 BROKERS. Except for the assistance of Amerivet Securities, Inc.,
Registered Investment Advisors, all negotiations relating to this
Agreement and the transactions contemplated hereby have been carried
out by the CD Promo Shareholders directly with Tiberon without the
intervention of any other person on behalf of the CD Promo Shareholders
in such manner as to give rise to any valid claim by any person against
the CD Promo Shareholders or Tiberon for a finder's fee, brokerage
commission or similar payment. Pursuant to the Consultant Agreement
between CD Promo and Amerivet Securities, Inc., at Closing, Tiberon
shall issue 600,000 shares of common stock to Amerivet Securities, Inc.
pursuant to Section 3(b) and 4(2) of the Securities Act of 1933, as
amended. Tiberon shall have no obligation to Amerivet Securities, Inc.
if Closing does not take place for any reason whatsoever.
4.21 APPROVAL OF SHARE EXCHANGE. The board of directors of Tiberon has
approved the Share Exchange without reservation or qualification.
4.22 SEC REPORTING STATUS. Tiberon is a reporting company with the
Securities and Exchange Commission.
4.23 INVESTMENT COMPANY. Tiberon is not an investment company within the
meaning of Section 3 of the Investment Company Act.
4.24 OTC BULLETIN BOARD STATUS. The Tiberon shares of Common Stock are
approved for trading on the OTC Bulletin Board.
4.25 DISCLOSURE. To the knowledge of Tiberon, neither this Agreement, nor
any Schedule or Exhibit to this Agreement, contains an untrue statement
of a material fact or omits a material fact necessary to make the
statements contained herein or therein not misleading.
ARTICLE V
ACTIONS PRIOR TO CLOSING
5.1 CORPORATE EXAMINATIONS AND INVESTIGATIONS. From the execution of the
this Agreement until the Closing Date, Tiberon shall be entitled to
make such investigation of the assets, properties, agreements, business
and operations of CD Promo and such examination of the books, records,
Tax Returns, financial condition and operations of CD Promo, and to
Share Exchange Agreement - Page 18
otherwise complete Tiberon's feasibility review of acquiring CD Promo.
Any such investigation and examination shall be conducted at reasonable
times and under reasonable circumstances and CD Promo shall cooperate
fully therein. In order that Tiberon may have full opportunity to make
such a business, accounting and legal review, examination or
investigation as they may wish of the business and affairs of CD Promo,
CD Promo shall furnish to Tiberon during such period all such
information and copies of such documents concerning the affairs of CD
Promo as Tiberon may reasonably request and cause CD Promo's officers,
employees, consultants, agents, accountants and attorneys to fully
cooperate with Tiberon and disclose all material facts affecting the
financial condition and business operations of CD Promo. CD Promo, upon
notice, may, but has no obligation to, address the issues raised by
Tiberon during this feasibility review period. In the event that
Tiberon is not satisfied with any document or issue concerning the
operations or business of CD Promo, or any matter related to this
Agreement, Tiberon may, for any reason, in its sole discretion, at any
time prior to Closing, give written notice of termination to CD Promo
and the CD Promo Shareholders, and all parties shall be released from
any obligation or further liabilities under this Agreement.
Until the Closing and if the Closing shall not occur, thereafter,
Tiberon and its affiliates shall keep confidential and shall not use in
any manner inconsistent with the transactions contemplated by this
Agreement and after termination of this Agreement, Tiberon and its
affiliates shall not disclose, nor use for their own benefit, any
information or documents obtained from CD Promo concerning its assets,
properties, business and operations, unless (a) readily ascertainable
from public or published information, or trade sources, (b) received
from a third party not under an obligation to CD Promo to keep such
information confidential or (c) required by any Law or Order. If this
transaction does not close for any reason, Tiberon and its affiliates
shall return or destroy all such confidential information and
compilations thereof as is practicable, and shall certify such
destruction or return to CD Promo.
5.2 CONDUCT OF BUSINESS. From the date hereof through the Closing Date, the
CD Promo Shareholders shall cause the business of CD Promo to be
conducted in the ordinary course in the same manner as it has been
conducted since it inception. The CD Promo Shareholders covenant that,
except with the prior written consent of Tiberon, which consent shall
not be unreasonably withheld, CD Promo will not:
(a) Do any of the restricted acts set forth in SECTION 3.20
hereof, or enter into any agreement of a nature set forth in
SECTION 3.16 hereof; or
(b) Enter into any transaction other than in the ordinary course
of business.
5.3 PRESERVATION OF BUSINESS. From the date hereof through the Closing
Date, the CD Promo Shareholders shall cause CD Promo to use
commercially reasonable efforts to (i) preserve intact the business,
assets, properties and organizations of CD Promo, (ii) keep available
the
Share Exchange Agreement - Page 19
services of the present officers, employees, consultants and agents of
CD Promo; and (iii) maintain the present suppliers and customers and
preserve the goodwill of CD Promo.
5.4 ADVICE OF CHANGES. The CD Promo Shareholders will promptly advise
Tiberon in writing from time to time prior to the Closing with respect
to any matter hereafter arising and known to them that, if existing or
occurring at the date of this Agreement, would have been required to be
set forth or described in the CD Promo Shareholder Disclosure Schedule
or would have resulted in any representation of the CD Promo
Shareholders in this Agreement being untrue. Tiberon will promptly
advise the CD Promo Shareholders in writing from time to time prior to
the Closing with respect to any matter hereafter arising and known to
it that, if existing or occurring at the date of this Agreement, would
have been required to be set forth or described in the Tiberon
Disclosure Schedule or would have resulted in any representation of
Tiberon in this Agreement being untrue in any material respect.
5.5 OTHER AGREEMENTS. The CD Promo Shareholders and Tiberon agree to take,
or cause to be taken, all actions and to do, or cause to be done, all
things reasonably necessary, proper or advisable to consummate and make
effective as promptly as practicable the transactions contemplated by
this Agreement, including, without limitation, the obtaining of all
necessary waivers, consents and approvals and the effecting of all
necessary registrations and filings, including, but not limited to,
submissions of information requested by Governmental or Regulatory
Bodies and any other persons required to be obtained by them for the
consummation of the closing and the continuance in full force and
effect of the permits, contracts and other agreements set forth on the
Schedules to this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF TIBERON TO COMPLETE THE
CLOSING. The obligations of Tiberon to enter into and complete the
Closing are subject to the fulfillment of the following conditions, any
one or more of which may be waived by Tiberon:
(a) (i) All of the terms, covenants, and conditions of this
Agreement to be complied with or performed by the CD Promo
Shareholders at or before the Closing shall have been duly
complied with and performed in all material respects, to the
sole satisfaction of Tiberon, (ii) the representations and
warranties of the CD Promo Shareholders set for in Article III
shall be true in all material respects on and as of the
Closing Date with the same force and effect as if such
representations and warranties had been made on and as of the
Closing, and (iii) Tiberon shall have received a certificate
to such effect from the CD Promo Shareholders.
(b) All consents, waivers, approvals, licenses, authorizations of,
or filings or declarations with third parties or Governmental
or Regulatory Bodies required to be obtained by CD Promo or
the CD Promo Shareholders in order to permit the transactions
contemplated by this Agreement to be consummated in accordance
with agreements
Share Exchange Agreement - Page 20
and court orders applicable to CD Promo or the CD Promo
Shareholders and applicable governmental laws, rules,
regulations and agreements shall have been obtained and any
waiting period thereunder shall have expired or been
terminated, and CD Promo shall have received a certificate
from the CD Promo Shareholders to such effect.
(c) All actions, proceedings, instruments, and documents in
connection with the consummation of the transactions
contemplated by this Agreement, including the forms of all
documents, legal matters, opinions, and procedures in
connection therewith, shall have been approved in form and
substance by counsel for Tiberon.
(d) The CD Promo Shareholders shall have furnished such
certificates to evidence compliance with the conditions set
forth in this Article, as may be reasonably requested by
Tiberon or its counsel.
(e) CD Promo shall not have suffered any Material Effect.
(f) No material information or data provided or made available to
Tiberon by or on behalf of CD Promo shall be incorrect in any
material respect.
(g) No investigation and no suit, action, or proceeding before any
court or any governmental or regulatory authority shall be
pending or threatened by any state or federal governmental or
regulatory authority, against CD Promo or any of its
affiliates, associates, officers, or directors seeking to
restrain, prevent, or change in any material respect the
transactions contemplated hereby or seeking damages in
connection with such transactions that are material to CD
Promo.
(h) Counsel to CD Promo and/or the CD Promo Shareholders shall
have delivered to Tiberon on and as of the Closing Date an
opinion to Tiberon substantially as to the matters set forth
in SECTIONS 3.1, 3.2, 3.3, 3.4, 3.6. 3.7, AND 3.8, all subject
to customary limitations reasonably acceptable to counsel to
Tiberon.
(i) The following key employees ("KEY EMPLOYEES") shall have
entered into at least two-year employment agreements on terms
satisfactory to Tiberon: to be provided within twenty (20)
days of executing this Agreement. These EMPLOYMENT AGREEMENTS
shall contain provisions as to a year-end performance bonus
based on standards to be established by the directors of
Tiberon, incentive stock options with minimum guarantees, the
repurchase of Tiberon shares of Common Stock in the event of
termination of employment, and customary non-compete and
proprietary information provisions.
(j) Each officer and Key Employee shall have entered into a
proprietary information and non-compete agreement on terms
satisfactory to Tiberon.
Share Exchange Agreement - Page 21
(k) The CD Promo Shareholders shall have provided audited
financial statements of CD Promo covering the latest completed
periods in a form suitable for filing with the SEC.
(i) Tiberon's full and complete satisfaction of its feasibility
review as provided under SECTION 5.1 hereof.
6.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE CD PROMO SHAREHOLDERS TO
COMPLETE THE CLOSING. The obligations of the CD Promo Shareholders to
enter into and complete the Closing are subject to the fulfillment on
or prior to the Closing Date, of the following conditions, any one or
more of which may be waived by the CD Promo Shareholders:
(a) (i) All of the terms, covenants, and conditions of this
Agreement to be complied with or performed by Tiberon at or
before the Closing shall have been duly complied with and
performed in all material respects, (ii) the representations
and warranties of Tiberon set for in Article IV shall be true
in all material respects on and as of the Closing Date with
the same force and effect as if such representations and
warranties had been made on and as of the Closing, and (iii)
the CD Promo Shareholders shall have received a certificate to
such effect from Tiberon.
(b) All consents, waivers, approvals, licenses, authorizations of,
or filings or declarations with third parties or Governmental
or Regulatory Bodies required to be obtained by Tiberon in
order to permit the transactions contemplated by this
Agreement to be consummated in accordance with agreements and
court orders applicable to Tiberon and applicable governmental
laws, rules, regulations and agreements shall have been
obtained and any waiting period thereunder shall have expired
or been terminated, and the CD Promo Shareholders shall have
received a certificate from Tiberon to such effect.
(c) All actions, proceedings, instruments, and documents in
connection with the consummation of the transactions
contemplated by this Agreement, including the forms of all
documents, legal matters, opinions, and procedures in
connection therewith, shall have been approved in form and
substance by counsel for the CD Promo Shareholders, which
approval shall not be unreasonably withheld.
(d) Tiberon shall have furnished such certificates to evidence
compliance with the conditions set forth in this Article, as
may be reasonably requested by the CD Promo Shareholders or
their counsel.
(e) Tiberon shall not have suffered any Material Effect.
(f) No material information or data provided or made available to
the CD Promo Shareholders by or on behalf of Tiberon shall be
incorrect in any material respect.
Share Exchange Agreement - Page 22
(g) No investigation and no suit, action, or proceeding before any
court or any governmental or regulatory authority shall be
pending or threatened by any state or federal governmental or
regulatory authority, against Tiberon or any of its
affiliates, associates, officers, or directors seeking to
restrain, prevent, or change in any material respect the
transactions contemplated hereby or seeking damages in
connection with such transactions that are material to
Tiberon.
(h) Counsel to Tiberon shall have delivered to the CD Promo
Shareholders on and as of the Closing Date an opinion to the
CD Promo Shareholders substantially as to the matters set
forth in SECTIONS 4.1, 4.2, 4.3, 4.4, 4.5, 4.6., AND 4.7, all
subject to customary limitations reasonably acceptable to
counsel to the CD Promo Shareholders.
(i) Tiberon and CD Promo shall mutually agree for Tiberon to
reserve either one of the following corporate names
"▇▇▇▇▇▇▇.▇▇▇", "▇▇▇▇▇▇.▇▇▇", or "▇▇▇▇▇▇▇.▇▇▇".
(j) Tiberon shall have filed Articles of Amendment to its Articles
of Incorporation with the Secretary of State of the State of
Nevada to establish the name change.
ARTICLE VII
POST-CLOSING COVENANTS
The parties covenant to take the following actions after the Closing Date:
7.1 FURTHER INFORMATION. Following the Closing, each party will afford to
the other party, its counsel and its accountants, during normal
business hours, reasonable access to the books, records and other data
of CD Promo or Tiberon, as the case may be, relating to the business of
CD Promo or Tiberon in their possession with respect to periods prior
to the Closing and the right to make copies and extracts therefrom, to
the extent that such access may be reasonably required by the
requesting party (a) to facilitate the investigation, litigation and
final disposition of any claims which may have been or may be made
against any party or its affiliates and (b) for any other reasonable
business purpose.
7.2 RECORD RETENTION. Each party agrees that for a period of not less than
five years following the Closing Date, such party shall not destroy or
otherwise dispose of any of the Books and Records of CD Promo or
Tiberon relating to the business of CD Promo or Tiberon in his or its
possession with respect to periods prior to the Closing Date. Each
party shall have the right to destroy all or part of such Books and
Records after the fifth anniversary of the Closing Date or, at an
earlier time by giving each other party hereto 30 days prior written
notice of such intended disposition and by offering to deliver to the
other party or parties, at the other party's or parties' expense,
custody of such Books and Records as such party may intend to destroy.
Share Exchange Agreement - Page 23
7.3 POST-CLOSING ASSISTANCE. The CD Promo Shareholders on the one hand, and
Tiberon, on the other hand, will provide each other with such
assistance as may reasonably be requested in connection with the
preparation of any Tax Return, any audit or other examination by any
taxing authority, or any judicial or administrative proceedings
relating to liability for Taxes, and each will retain and provide the
requesting party with any records or information that may be reasonably
relevant to such return, audit or examination, proceedings or
determination. The party requesting assistance shall reimburse the
other party for reasonable out-of-pocket expenses incurred in providing
such assistance. Any information obtained pursuant to this SECTION 7.3
or pursuant to any other Section hereof providing for the sharing of
information or the review of any Tax Return or other schedule relating
to Taxes shall be kept confidential by the parties hereto.
7.4 SEC REPORTING. With a view to making available the benefits of certain
rules and regulations of the SEC which may at any time permit the sale
of the Tiberon shares of Common Stock to the public without
registration, from and after the Closing, the new management of Tiberon
will:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act,
at all times; and
(b) file with the SEC in a timely manner all reports and other
documents required of Tiberon and of them under the Exchange
Act.
ARTICLE VIII
SURVIVAL; INDEMNIFICATION
8.1 SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND WARRANTIES. Notwithstanding
any investigation conducted or notice or knowledge obtained by or on
behalf of any party hereto, each agreement in this Agreement shall
survive the Closing without limitation as to time until fully performed
and each representation and warranty in this Agreement or in the
Exhibits, Schedules or certificates delivered pursuant to this
Agreement shall survive the Closing for a period of two years (other
than the representations and warranties contained in SECTION 3.5 which
shall survive the Closing without limitation as to time, and other than
the representations and warranties contained in SECTION 3.14, which
shall survive the Closing until the earlier of (i) three and one-half
years from the Closing Date and (ii) three years following the date on
which Tax files the Tax Return relating to the taxable period from
December 31, 1999 through the Closing Date). Notice must be given to
the party from whom indemnification is sought of any claim for
indemnification under Article VII prior to the termination of the
relevant survival period.
8.2 INDEMNIFICATION BY THE CD PROMO SHAREHOLDERS. From and after the
Closing Date, the CD Promo Shareholders agree jointly and severally, to
indemnify, hold harmless, protect and defend Tiberon and its affiliates
(and their respective directors, officers, agents and
Share Exchange Agreement - Page 24
employees, successors and assigns) in accordance with the provisions of
this Article 7 from and against:
(a) any and all damages incurred by any of them arising out of,
relating to or based upon or in connection with any inaccuracy
in, or breach of, any of the representations or warranties,
covenants or agreements of any of the CD Promo Shareholders or
CD Promo contained in or incorporated into this Agreement, in
the Schedules hereto or in certificates delivered pursuant to
this Agreement;
(b) any and all Taxes (other than to the extent such Taxes are
reflected in the CD Promo balance sheet included in the CD
Promo Financial Statements) imposed on CD Promo in respect of
its income, business, property or operations or for which CD
Promo may otherwise be liable for any period ending or deemed
to end prior to or on the date of the CD Promo Financial
Statements;
(c) any cost incurred by CD Promo in connection with this
Agreement and the transactions contemplated hereby.
The right of the parties to be indemnified hereunder shall not be
limited or affected by any investigation conducted or notice or
knowledge obtained by or on behalf of any such persons.
8.3 TIBERON'S INDEMNITY. Tiberon shall indemnify the CD Promo Shareholders
and hold the CD Promo Shareholders harmless against and in respect of
any and all damages, losses, claims, penalties, liabilities, costs and
expenses (including, without limitation, all fines, interest,
reasonable legal fees and expenses and amounts paid in settlement),
that arise from or relate or are attributable to (and without giving
effect to any tax benefit to the indemnified party) (a) any
misrepresentation by Tiberon or breach of any warranty by Tiberon in
this Agreement and (b) any breach of any covenant or agreement on the
part of Tiberon in this Agreement.
8.4 METHOD OF ASSERTING CLAIMS. The party making a claim under this Article
VIII is referred to as the "Indemnified Party" and the party against
whom such claims are asserted under this Article VIII is referred to as
the "Indemnifying Party". All claims by any Indemnified Party under
this Article VIII shall be asserted and resolved as follows:
(a) Whenever an Indemnified Party becomes aware of a claim for
which an Indemnifying Party would be liable to an Indemnified
Party hereunder, the Indemnified Party shall with reasonable
promptness notify in writing the Indemnifying Party of such
claim, identifying the representation or warranty on which
such claim is based, the basis for such claim or demand, and
the amount or the estimated amount thereof to the extent then
determinable (which estimate shall not be conclusive of the
final amount of such claim and demand; the "Claim Notice");
PROVIDED, that any failure to give a Claim Notice will not be
deemed a waiver of any
Share Exchange Agreement - Page 25
rights of the Indemnified Party except to the extent the
rights of the Indemnifying Party are actually prejudiced by
such failure. If the basis of such claim is a claim or demand
by a third party, the Indemnifying Party, upon request of the
Indemnified Party, shall retain counsel (who shall be
reasonably acceptable to the Indemnified Party) to represent
the Indemnified Party and shall pay the reasonable fees and
disbursements of such counsel with regard thereto; PROVIDED,
that any Indemnified Party is hereby authorized prior to the
date on which it receives written notice from the Indemnifying
Party designating such counsel, to retain counsel, whose fees
and expenses shall be at the expense of the Indemnifying
Party, to file any motion, answer or other pleading and take
such other action which it reasonably shall deem necessary to
protect its interests or those of the Indemnifying Party until
the date on which the Indemnified Party receives such notice
from the Indemnifying Party. After the Indemnifying ▇▇▇▇▇
shall retain such counsel, the Indemnified Party shall have
the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified
Party unless (x) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such
counsel or (y) representation of both parties by the same
counsel would be inappropriate due to actual or potential
differing interests between them. The Indemnifying Party shall
not, in connection with any proceedings or related proceedings
in the same jurisdiction, be liable for the fees and expenses
of more than one such firm for the Indemnified Party (except
to the extent the Indemnified Party retained counsel to
protect its (or the Indemnifying Party's) rights prior to the
selection of counsel by the Indemnifying Party). If requested
by the Indemnifying Party, the Indemnified Party agrees to
cooperate with the Indemnifying Party and its counsel in
contesting any claim or demand which the Indemnifying Party
defends. A claim or demand may not be settled by either party
without the prior written consent of the other party (which
consent will not be unreasonably withheld) unless, as part of
such settlement, the Indemnified Party shall receive a full
and unconditional release reasonably satisfactory to the
Indemnifying Party.
(b) Whenever any Indemnified Party shall have a claim against any
Indemnifying Party hereunder which does not involve a claim or
demand being asserted against or sought to be collected from
it by a third party, the Indemnified Party shall send a Claim
Notice with respect to such claim to the Indemnifying Party.
(c) After delivery of a Claim Notice, so long as any right to
indemnification exists pursuant to this Article VIII, the
affected parties each agree to retain all Books and Records
related to such Claim Notice. In each instance, the
Indemnified Party shall have the right to be kept fully
informed by the Indemnifying Party and its legal counsel with
respect to any legal proceedings. Any information or documents
made available to any party hereunder and designated as
confidential by the party providing such information or
documents and which is not otherwise generally available to
the public and not already within the knowledge of the party
to whom the information is provided (unless otherwise covered
by the confidentiality
Share Exchange Agreement - Page 26
provisions of any other agreement among the parties hereto, or
any of them), and except as may be required by applicable law,
shall not be disclosed to any third person (except for the
representatives of the party being provided with the
information, in which event the party being provided with the
information shall request its representatives not to disclose
any such information which it otherwise required hereunder to
be kept confidential).
8.5 GENERAL PROVISIONS. The following general provisions shall apply to any
claim for indemnification under this Article VIII:
(a) The amount of any claim subject to indemnification shall be
determined after taking into account the present value of any
tax benefits (net of tax detriments) accruing to the
Indemnified Party or any affiliate as a result of such claim.
(b) Except as otherwise set forth in this Section 8.5(b), with
respect to any breach, violation or nonfulfillment of or
default in the performance of any representation, warranty or
covenant of this Agreement for which a right to claim
indemnification is provided in this Article VIII, after the
Closing a claim or an action under and pursuant to the terms,
conditions and limitations of this Article VIII shall be the
sole and exclusive right and remedy of Tiberon and the CD
Promo Shareholders and neither Tiberon nor any CD Promo
Shareholder shall have any other claim, cause of action,
right, or remedy for such breach, violation, non-fulfillment
or default against the other based upon this Agreement, any
provision of any federal or state securities or other statute,
law, rule or regulation or based upon any other cause of
action arising at law or in equity; PROVIDED, that if for any
reason a court of competent -------- jurisdiction shall refuse
to enforce this provision, and shall permit Tiberon or the CD
Promo Shareholders to assert any action based other than upon
the right to claim indemnification as provided in this Article
VIII, Tiberon and the CD Promo Shareholders agree that the
amount of such other claim shall be subject to and limited by
the provisions of this Article VIII. The provisions of this
Section 8.5(b) shall not preclude the prosecution of any
action or proceeding based on fraud that, if found to exist,
would be sufficient to give rise to the right of rescission
with respect to the transactions contemplated by this
Agreement.
ARTICLE IX
TERMINATION OF AGREEMENT
9.1 TERMINATION. This Agreement may be terminated at any time prior to the
Closing as follows:
(a) by mutual written consent of Tiberon and the CD Promo
Shareholders;
(b) by Tiberon on the one hand, or by all of the CD Promo
Shareholders, on the other hand, by written notice to the
other party hereto, if the Closing shall not have
Share Exchange Agreement - Page 27
occurred on the date as established pursuant to SECTION 2.1
hereof (unless such event has been caused by a breach of this
Agreement by the party seeking such termination);
(c) by Tiberon or by all of the CD Promo Shareholders if a
Governmental or Regulatory Body has permanently enjoined or
prohibited consummation of the Share Exchange and such court
or government action is final and nonappealable;
(d) by Tiberon if the CD Promo Shareholders have failed to comply
in any material respect with any of its covenants or
agreements under this Agreement that are required to be
complied with prior to the date of such termination;
(e) by Tiberon for any reason whatsoever as provided by SECTION
5.1 hereof; or
(f) by the CD Promo Shareholders if Tiberon has failed to comply
in any material respect with any of its covenants or
agreements under this Agreement that are required to be
complied with prior to the date of such termination.
Should the CD Promo Shareholders terminate this Agreement for any
reason other than a default by Tiberon as described in SECTION 9.1(F)
hereof, the CD Promo Shareholders shall be jointly and severally liable
for all damages caused by the failure to close and not just the
expenses listed in SECTION 10.1 hereof. Should Tiberon terminate this
Agreement for any reason other than a default by the CD Promo
Shareholders as described in SECTION 9.1(D) hereof, or as allowed by
SECTION 5.1 hereof, then Tiberon shall be liable for all damages caused
by the failure to close and not just the expenses listed in SECTION
10.1. hereof.
9.2 SURVIVAL AFTER TERMINATION. If this Agreement is terminated pursuant to
SECTION 9.1, (a) this Agreement shall become null and void and of no
further force and effect, except for the provisions of SECTION 5.1
relating to the obligation to keep confidential certain information and
(b) there shall be no liability on the part of CD Promo or Tiberon or
their respective affiliates.
ARTICLE X
MISCELLANEOUS
10.1 EXPENSES. Tiberon shall be solely responsible for its own legal and
accounting fees in connection with the Share Exchange. CD Promo shall
be responsible for legal and accounting fees and other expenses in
connection with the Share Exchange as it relates to CD Promo.
10.2 FURTHER ASSURANCES. At any time and from time to time after the Closing
Date at the request of Tiberon, and without further consideration, the
CD Promo Shareholders will execute and deliver such other instruments
of sale, transfer, conveyance, assignment and confirmation and take
such other action as Tiberon may reasonably deem necessary or
Share Exchange Agreement - Page 28
desirable in order to transfer, convey and assign the Shares to Tiberon
and to assist Tiberon in exercising all rights with respect thereto.
The parties shall use their best efforts to fulfill or obtain the
fulfillment of the conditions to the Closing, including, without
limitation, the execution and delivery of any document or other papers,
the execution and delivery of which are conditions precedent to the
Closing.
10.3 NOTICES. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and
shall be given personally, sent by facsimile transmission or sent by
prepaid air courier or certified or express mail, postage prepaid. Any
such notice shall be deemed to have been given (a) when received, if
delivered in person, sent by facsimile transmission and confirmed in
writing within three (3) business days thereafter or sent by prepaid
air courier or (b) three (3) business days following the mailing
thereof, if mailed by certified first class mail, postage prepaid,
return receipt requested, in any such case as follows (or to such other
address or addresses as a party may have advised the other in the
manner provided in this SECTION 10.3):
If to the CD Promo Shareholders:
CD Promo, Ltd.
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax # ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Messrs. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Karlsson
with a copy to:
CD Promo, Ltd.
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax # ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
If to Tiberon:
Tiberon Resources Ltd.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attention: Reg ▇▇▇▇▇▇▇▇, President
Share Exchange Agreement - Page 29
with a copy to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
10.4 ARBITRATION. Any dispute, controversy, or claim arising out of,
relating to, or in connection with, this Agreement or the agreements or
transactions contemplated by this Agreement shall be finally settled by
binding arbitration. The arbitration shall be conducted and the
arbitrator chosen in accordance with the rule of the American
Arbitration Association in effect at the time of the arbitration,
except as they may be modified herein or by mutual agreement of Tiberon
and the CD Promo Shareholders. In connection with any such arbitration,
each party shall be afforded the opportunity to conduct discovery in
accordance with the Federal Rules of Civil Procedure.
(a) The seat of the arbitration shall be in Denver, Colorado, and
will follow the format known as "Baseball Arbitration". Each
of the CD Promo Shareholders and Tiberon hereby irrevocably
submits to the jurisdiction of the arbitrator in Denver,
Colorado, and waives any defense in an arbitration based upon
any claim that such party is not subject personally to the
jurisdiction of such arbitrator, that such arbitration is
brought in an inconvenient format, or that such venue is
improper.
(b) The arbitral award shall be in writing and shall be final and
binding on each of the parties to this Agreement. The award
may include an award of costs, including reasonable attorneys'
fees and disbursements. Judgment upon the award may be entered
by any court having jurisdiction thereof or having
jurisdiction over the parties or their assets. Each of the CD
Promo Shareholders and Tiberon acknowledges and agrees that by
agreeing to these arbitration provisions each of the parties
hereto is waiving any right that such party may have to a jury
trial with respect to the resolution of any dispute under this
Agreement or the agreements or transactions contemplated
hereby.
10.5 PUBLICITY. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be made without
advance approval thereof by Tiberon and the CD Promo Shareholders
except as may be required by applicable law.
10.6 ENTIRE AGREEMENT. This Agreement (including the Exhibits and Schedules)
and the agreements, certificates and other documents delivered pursuant
to this Agreement contain the entire agreement among the parties with
respect to the transactions described herein, and supersede all prior
agreements, written or oral, with respect thereto.
10.7 WAIVERS AND AMENDMENTS. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived, only
by a written instrument
Share Exchange Agreement - Page 30
signed by the parties or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof
10.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada without regard to
principles of conflicts of law.
10.9 BINDING EFFECT, NO ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement is not assignable by any party hereto
without the prior written consent of the other parties hereto except by
operation of law and any other purported assignment shall be null and
void.
10.10 COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of
a number of copies hereof each signed by less than all, but together
signed by all of the parties hereto.
10.11 EXHIBITS AND SCHEDULES. The Exhibits and Schedules are a part of this
Agreement as if fully set forth herein. All references herein to
Sections, subsections, clauses, Exhibits and Schedules shall be deemed
references to such parts of this Agreement, unless the context shall
otherwise require.
10.12 EFFECT OF DISCLOSURE ON SCHEDULES. Any item disclosed on any Schedule
to this Agreement shall only be deemed to be disclosed in connection
with (a) the specific representation and warranty to which such
Schedule is expressly referenced, (b) any specific representation and
warranty which expressly cross-references such Schedule and (c) any
specific representation and warranty to which any other Schedule to
this Agreement is expressly referenced if such other Schedule expressly
cross-references such Schedule.
10.13 HEADINGS. The headings in this Agreement are for reference only, and
shall not affect the interpretation of this Agreement.
10.14 SEVERABILITY OF PROVISIONS. If any provision or any portion of any
provision of this Agreement or the application of such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the
remaining provisions of this Agreement, or the application of such
provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby.
Share Exchange Agreement - Page 31
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
TIBERON RESOURCES LTD.
By:
-----------------------------------
Name: Reg ▇▇▇▇▇▇▇▇
Title: President
CD PROMO, LTD. SHAREHOLDERS:
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
Share Exchange Agreement - Page 32
SCHEDULE A
TO
SHARE EXCHANGE AGREEMENT
by and among
TIBERON RESOURCES LTD.
and
CD PROMO, LTD.
The following individuals are the only shareholders of CD Promo, Ltd., and they
have signed the Share Exchange Agreement as referenced above.
NUMBER OF
NAME: SHARES OWNED:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 30 shares
▇▇▇▇ ▇▇▇▇▇▇ Karlsson 30 shares
▇▇▇▇▇ ▇▇▇▇▇▇▇ 10 shares
▇▇▇▇ ▇▇▇▇▇▇▇▇ 10 shares
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ 20 shares
Domain Decision Ltd. 10 shares
TOTAL:
Six (6) Shareholders 110 shares issued and outstanding
==================== =================================
Exhibit 27
Financial Data Schedule