AGREEMENT CONCERNING THE EXCHANGE OF SECURITIES BY AND AMONG NB DESIGN AND LICENSING, INC. AND ORGANIC ALLIANCE, INC. AND
Exhibit
10.2
CONCERNING
THE EXCHANGE OF SECURITIES
BY
AND AMONG
NB
DESIGN AND LICENSING, INC.
AND
THE
SECURITY HOLDERS OF ORGANIC ALLIANCE, INC.
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Page
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ARTICLE
I – Exchange of Securities
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1.1
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Issuance
of Securities
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1
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1.2
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Exemption
from Registration
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1
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1.3
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Private
Placement
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1
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1.4
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NB
Common Stock Outstanding
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2
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1.5
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Derivative
Securities
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2
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ARTICLE
II – Representations and Warranties of Organic
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2
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2.1
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Organization
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2
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2.2
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Capital
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3
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2.3
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Subsidiaries
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3
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2.4
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Directors
and Officers
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3
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2.5
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Financial
Statements
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3
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2.6
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Absence
of Changes
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3
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2.7
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Absence
of Undisclosed Liabilities
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4
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2.8
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Tax
Returns
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4
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2.9
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Investigation
of Financial Condition
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4
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2.10
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Intellectual
Property Rights
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4
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2.11
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Compliance
with Laws
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4
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2.12
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Litigation
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4
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2.13
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Authority
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4
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2.14
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Ability
to Carry Out Obligations
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5
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2.15
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Full
Disclosure
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5
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2.16
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Assets
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5
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2.17
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Material
Contracts
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5
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2.18
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Indemnification
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5
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2.19
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Criminal
or Civil Acts
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5
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2.20
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Restricted
Securities
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5
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ARTICLE
III – Representations and Warranties of NB
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5
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3.1
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Organization
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6
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3.2
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Capital
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6
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3.3
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Subsidiaries
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6
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3.4
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Directors
and Officers
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6
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3.5
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Financial
Statements
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6
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3.6
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Absence
of Changes
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6
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3.7
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Absence
of Undisclosed Liabilities
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6
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3.8
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Tax
Returns
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7
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3.9
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Investigation
of Financial Condition
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7
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3.10
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Intellectual
Property Rights
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7
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3.11
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Compliance
with Laws
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7
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3.12
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Litigation
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7
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3.13
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Authority
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7
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3.14
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Ability
to Carry Out Obligations
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7
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3.15
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Full
Disclosure
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7
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3.16
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Assets
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8
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3.17
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Material
Contracts
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8
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3.18
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Indemnification
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8
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3.19
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Criminal
or Civil Acts
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8
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3.20
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Pink
Sheets Trading Status
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8
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| ARTICLE IV – Covenants Prior to the Closing Date |
8
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4.1
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Investigative
Rights
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8
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4.2
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Conduct
of Business
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8
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4.3
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Confidential
Information
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9
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4.4
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Notice
of Non-Compliance
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9
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ARTICLE
V – Conditions Precedent to NB’s Performance
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9
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5.1
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Conditions
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9
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5.2
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Accuracy
of Representations
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9
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5.3
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Performance
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9
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5.4
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Absence
of Litigation
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9
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5.5
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Officer’s
Certificate
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9
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5.6
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Other
Conditions
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10
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ARTICLE
VI – Conditions Precedent to Organic’s Performance
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10
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6.1
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Conditions
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10
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6.2
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Accuracy
of Representations
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10
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6.3
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Performance
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10
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6.4
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Absence
of Litigation
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10
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6.5
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Officer’s
Certificate
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10
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6.6
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Payment
of Liabilities
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10
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6.7
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Directors
of NB
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10
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6.8
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Officers
of NB
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11
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ARTICLE
VII – Closing
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11
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7.1
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Closing
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11
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ARTICLE
VIII – Covenants Subsequent to the Closing Date
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12
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8.1
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Registration
and Listing
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12
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ARTICLE
IX – Miscellaneous
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9.1
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Captions
and Headings
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12
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9.2
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No
Oral Change
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12
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9.3
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Non-Waiver
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12
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9.4
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Time
of Essence
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12
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9.5
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Entire
Agreement
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12
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9.6
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Choice
of Law
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12
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9.7
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Counterparts
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13
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9.8
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Notices
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13
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9.9
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Binding
Effect
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13
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9.10
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Mutual
Cooperation
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13
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9.11
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Finders
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13
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9.12
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Announcements
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13
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9.13
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Expenses
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13
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9.14
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Survival
of Representations and Warranties
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13
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9.15
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Exhibits
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13
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9.16
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Legal
Counsel
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14
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9.17
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Termination,
Amendment and Waiver
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14
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EXHIBITS
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Allocation
of Securities
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Exhibit
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1.1
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Subscription
Agreement
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Exhibit
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1.2 |
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Financial
Statements of Organic
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Exhibit
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2.5
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Financial
Statements of NB
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Exhibit
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3.5
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THIS AGREEMENT (“Agreement”) is made
this _____ day of April, 2008, by and between NB Design and Licensing, Inc., a
Nevada corporation (“NB”), Organic Alliance, Inc., a Texas corporation
(“Organic”), and the security holders of Organic (the “Organic Security
Holders”) who are listed on Exhibit 1.1 hereto and have executed Subscription
Agreements in the form attached in Exhibit 1.2, hereto.
WHEREAS, NB desires to acquire all of
the issued and outstanding common stock of Organic from the Organic Security
Holders in exchange for newly issued unregistered shares of common stock of
NB;
WHEREAS, Organic desires to assist NB
in acquiring all of the issued and outstanding common stock of Organic pursuant
to the terms of this Agreement; and
WHEREAS, all of the Organic Security
Holders, by execution of Exhibit 1.2 hereto, agree to exchange all 10,916,917
common shares they hold in Organic for 9,299,972 common shares of
NB.
NOW, THEREFORE, in consideration of the
mutual promises, covenants and representations contained herein, the parties
hereto agree as follows:
ARTICLE
I
Exchange
of Securities
1.1 Issuance of Securities.
Subject to the terms and conditions of this Agreement, NB agrees to issue and
exchange 9,299,972 fully paid and non-assessable unregistered shares of NB’s
$.0001 par value common stock (the “NB Shares”) for all 10,916,917 issued and
outstanding shares of the no par value common stock of Organic
(the “Organic Shares”) held by the Organic Security Holders. All
NB Shares will be issued directly to the Organic Security Holders on the Closing
Date (as hereinafter defined), pursuant to the schedule set forth in
Exhibit 1.1.
1.2 Exemption from Registration.
The parties hereto intend that all NB common stock to be issued to the Organic
Security Holders shall be exempt from the registration requirements of the
Securities Act of 1933, as amended (the “Act”), pursuant to Section 4(2) and/or
Regulation D of the Act and rules and regulations promulgated
thereunder. In furtherance thereof, each of the Organic Security
Holders will execute and deliver to NB on the closing date of this Agreement
(the “Closing Date”) a copy of the Subscription Agreement set forth in Exhibit
1.2 hereto.
1.3 Private
Placement. Prior to the Closing Date and as a condition to
closing, Organic shall raise a minimum of $200,000 of equity capital (the
“Private Placement”). The 9,299,972 shares of NB issuable to the
Organic Security Holders shall include the shares Organic issued under the
Private Placement.
-1-
1.4 NB Common Stock Outstanding.
NB has 200,028 shares currently outstanding. On the Closing Date, Organic shall
purchase from certain NB stockholders 500,000 shares of NB common stock for
$200,000 or $.40 per share, which shares shall be cancelled and retired by
Organic. Accordingly, following the closing of the Agreement, NB shall have a
total of 10,000,000 shares outstanding, comprised of 9,299,972 shares (93% of
the total shares outstanding) held by the Organic Security Holders and 700,028
shares (7% of the total shares outstanding) retained by the original NB
stockholders.
1.5 Derivative
Securities. NB has issued six classes of common stock purchase
warrants (“Warrants”) with 1,000,028 warrants outstanding in each class. The
Warrants expire on December 31, 2008, with 2,000,056 Warrants exercisable at
$2.00 per share, 2,000,056 Warrants exercisable at $4.00 per share and 2,000,056
Warrants exercisable at $6.00 per share. In connection therewith, NB
agrees to reduce the exercise price of all such Warrants to $1.00 per share and
to extend the exercise period of the Warrants to December 31,
2011. In exchange for the exercise price reduction and extension of
the exercise period, it shall be a condition for closing that the holders of at
least 80% of the Warrants (the “NB Principals”) agree that the Warrants they
hold shall be subject to a call provision by NB on 10 days notice to the holders
if (i) the bid price of NB’s common stock is quoted at $1.25 per share or higher
and the average share volume exceeds 300,000 shares for at least one day, and
(ii) the shares underlying the Warrants are subject to a current registration
statement on file with the Securities and Exchange Commission. Both the share
price and volume must be met on the same day for the call provision to be
effective.
The NB
Principals agree by execution of this Agreement that they may sell no more than
an aggregate of 300,000 shares until the later of (a) such time as 50% of the
Warrants have been exercised, or (b) six months from the effective date of the
registration statement covering the 700,028 shares and the shares underlying the
Warrants held by the NB Principals as described in Section 8.1(c).
NB shall
also have the option during the life of the Warrants to exchange all or any part
of the Warrants held by the NB Principals for 500,000 shares of NB common
stock. If less than all of the Warrants are called by NB to be
exchanged then the number of shares issuable to the NB Principals shall be
apportioned accordingly.
ARTICLE
II
Representations
and Warranties of Organic
Organic hereby represents and warrants
to NB that:
2.1 Organization. Organic is a
corporation duly organized, validly existing and in good standing under the laws
of Texas, has all necessary corporate powers to own its properties and to carry
on its business as now owned and operated by it, and is duly qualified to do
business and is in good standing in each of the states where its business
requires qualification.
-2-
2.2 Capital. The authorized
capital stock of Organic consists of 60,000,000 authorized shares of no par
value common stock, of which 10,916,917 shares of common stock are outstanding,
and 10,000,000 authorized shares of $ no par value
preferred stock, none of which are outstanding. All of the
outstanding common stock of Organic is duly and validly issued, fully paid and
non-assessable. There are no outstanding subscriptions, options, rights,
warrants, debentures, instruments, convertible securities or other agreements or
commitments obligating Organic to issue any additional shares of its capital
stock of any class.
2.3 Subsidiaries. Organic does
not have any subsidiaries or own any interest in any other
enterprise.
2.4 Directors and Officers. The
names and titles of the directors and officers of Organic as of the date of this
Agreement are as follows:
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Name
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Position
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Xxxxxx
Xxxxxxxx
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Chief
Executive Officer,
Chief
Financial Officer and Director
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|
|
Xxxxx
Xxxxxxx
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Director
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Xxxxxx
Xxxxxx
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Director
|
2.5 Financial Statements. Exhibit
2.5 hereto consists of the unaudited financial statements of Organic for the
period from inception on February 19, 2008 through March 31, 2008 (the “Organic
Financial Statements”). The Organic Financial Statements have been prepared in
accordance with generally accepted accounting principles and practices
consistently followed by Organic throughout the period indicated, and fairly
present the financial position of Organic as of the date of the balance sheet
included in the Organic Financial Statements and the results of operations for
the period indicated. There are no material omissions or
non-disclosures in the Organic Financial Statements.
2.6 Absence of Changes. Since
March 31, 2008, there has not been any material change in the financial
condition or operations of Organic, except as contemplated by this
Agreement. As used throughout this Agreement, “material”
means: Any change or effect (or development that, insofar as can be
reasonably foreseen, is likely to result in any change or effect) that causes
substantial increase or diminution in the business, properties, assets,
condition (financial or otherwise) or results of operations of a
party. Taken as a whole, material change shall not include changes in
national or international economic conditions or industry conditions generally;
changes or possible changes in statutes and regulations applicable to a party;
or the loss of employees, customers or suppliers by a party as a direct or
indirect consequence of any announcement relating to this
transaction.
2.7 Absence of Undisclosed
Liabilities. As of March 31, 2008, Organic did not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in the Organic Financial Statements.
-3-
2.8 Tax Returns. Organic has
filed all federal, state and local tax returns required by law and has paid all
taxes, assessments and penalties due and payable. The provisions for taxes, if
any, reflected in Exhibit 2.5 are adequate for the periods
indicated. There are no present disputes as to taxes of any nature
payable by Organic.
2.9 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, NB, its legal counsel and accountants shall
have the opportunity to meet with Organic’s accountants and attorneys to discuss
the financial condition of Organic during reasonable business hours and in a
manner that does not interfere with the normal operation of Organic’s
business. Organic shall make available to NB all books and records of
Organic, provided, however, that Organic will be under no obligation to provide
any information subject to confidentiality provisions or waive any privilege
associated with any such information.
2.10 Intellectual Property Rights.
Organic owns or has the right to use all trademarks, service marks, trade names,
copyrights and patents material to its business.
2.11 Compliance with Laws. To the
best of Organic’s knowledge, Organic has complied with, and is not in violation
of, applicable federal, state or local statutes, laws and regulations, including
federal and state securities laws, except where such non-compliance would not
have a material adverse impact upon its business or properties.
2.12 Litigation. Organic is not a
defendant in any suit, action, arbitration or legal, administrative or other
proceeding, or governmental investigation which is pending or, to the best
knowledge of Organic, threatened against or affecting Organic or its business,
assets or financial condition. Organic is not in default with respect
to any order, writ, injunction or decree of any federal, state, local or foreign
court, department, agency or instrumentality applicable to
it. Organic is not engaged in any material litigation to recover
monies due to it.
2.13 Authority. The Board of
Directors of Organic has authorized the execution of this Agreement and the
consummation of the transactions contemplated herein, and Organic has full power
and authority to execute, deliver and perform this Agreement, and this Agreement
is a legal, valid and binding obligation of Organic and is enforceable in
accordance with its terms and conditions. By execution of Exhibit
1.2, all of the Organic Security Holders have agreed to and have approved the
terms of this Agreement.
2.14 Ability to Carry Out
Obligations. To the best of Organic’s knowledge, the execution and
delivery of this Agreement by Organic and the performance by Organic of its
obligations hereunder in the time and manner contemplated will not cause,
constitute or conflict with or result in (a) any breach or violation of any of
the provisions of or constitute a default under any license, indenture,
mortgage, instrument, article of incorporation, bylaw, or other agreement or
instrument to which Organic is a party, or by which it may be bound, nor will
any consents or authorizations of any party other than those hereto be required,
(b) an event that would permit any party to any agreement or instrument to
terminate it or to accelerate the maturity of any indebtedness or other
obligation of Organic, or (c) an event that would result in the creation or
imposition of any lien, charge or encumbrance on any asset of
Organic.
-4-
2.15 Full Disclosure. None of the
representations and warranties made by Organic herein or in any exhibit,
certificate or memorandum furnished or to be furnished by Organic, or on its
behalf, contains or will contain any untrue statement of material fact or omit
any material fact the omission of which would be misleading.
2.16 Assets. Organic’s assets are
fully included in Exhibit 2.5 and are not subject to any claims or encumbrances
except as indicated in Exhibit 2.5.
2.17 Material Contracts. Organic
does not have any material contracts.
2.18 Indemnification. Organic
agrees to indemnify, defend and hold NB and NB’s officers and directors harmless
against and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorney fees asserted by third parties
against NB which arise out of, or result from (i) any breach by Organic in
performing any of its covenants or agreements under this Agreement or in any
schedule, certificate, exhibit or other instrument furnished or to be furnished
by Organic under this Agreement, (ii) a failure of any representation or
warranty in this Article II or (iii) any untrue statement made by Organic in
this Agreement.
2.19 Criminal or Civil Acts. For
the period of five years prior to the execution of this Agreement, no executive
officer, director or principal stockholder of Organic has been convicted of a
felony crime, filed for personal bankruptcy, been the subject of a Commission or
NASD judgment or decree, or is currently the subject to any investigation in
connection with a felony crime or Commission or NASD proceeding.
2.20 Restricted
Securities. Organic and the Organic Security Holders, by
execution of this Agreement and of Exhibit 1.2, acknowledge that all of the NB
Shares issued by NB are restricted securities and none of such securities may be
sold or publicly traded except in accordance with the provisions of the
Act.
ARTICLE
III
Representations
and Warranties of NB
NB represents and warrants to Organic
that:
3.1 Organization. NB is a
corporation duly organized, validly existing and in good standing under the laws
of Nevada, has all necessary corporate powers to carry on its business, and is
duly qualified to do business and is in good standing in each of the states
where its business requires qualification.
3.2 Capital. The authorized
capital stock of NB currently consists of 60,000,000 shares of $.0001 par value
common stock, of which 1,200,028 shares are currently outstanding, and 700,028
shares will be outstanding on the Closing Date. NB also has
authorized 10,000,000 shares of $.0001 par value preferred stock, none of which
are outstanding. All of NB’s outstanding securities are duly and
validly issued, fully paid and non-assessable. There are no outstanding
subscriptions, options, rights, warrants, debentures, instruments, convertible
securities or other agreements or commitments obligating NB to issue any
additional shares of its capital stock of any class except as described in
Section 1.5 above.
-5-
3.3 Subsidiaries. NB does not
have any subsidiaries or own any interest in any other enterprise.
3.4 Directors and Officers. The
names and titles of the directors and officers of NB are: Xxxxxx X.
Xxxxxxx, Chief Executive Officer and Director, and Xxxxxx X. Xxxxxx, Secretary,
Treasurer and Director.
3.5 Financial Statements. Exhibit
3.5 hereto consists of the audited financial statements of NB for the years
ended December 31, 2006 and 2007 and the unaudited financial statements of NB
for the three months ended March 31, 2008 (the “NB Financial
Statements”). The NB Financial Statements have been prepared in
accordance with generally accepted accounting principles and practices
consistently followed by NB throughout the periods indicated, and fairly present
the financial position of NB as of the date of the balance sheets included in
the NB Financial Statements and the results of operations for the periods
indicated. There are no material omissions or non-disclosures in the
NB Financial Statements.
3.6 Absence of Changes. Since
March 31, 2008, there has not been any material change in the financial
condition or operations of NB, except as contemplated by this
Agreement.
3.7 Absence of Undisclosed
Liabilities. As of March 31, 2008, NB did not have any material debt,
liability or obligation of any nature, whether accrued, absolute, contingent or
otherwise, and whether due or to become due, that is not reflected in the NB
Financial Statements.
3.8 Tax Returns. Within the times
and in the manner prescribed by law, NB has filed all federal, state and local
tax returns required by law and has paid all taxes, assessments and penalties
due and payable.
3.9 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, Organic, its legal counsel and accountants
shall have the opportunity to meet with NB’s accountants and attorneys to
discuss the financial condition of NB. NB shall make available to
Organic all books and records of NB.
3.10 Intellectual Property Rights.
NB does not have any patents, trademarks, service marks, trade names, copyrights
or other intellectual property rights.
3.11 Compliance with Laws. NB has
complied with, and is not in violation of, applicable federal, state or local
statutes, laws or regulations including federal and state securities
laws.
3.12 Litigation. NB is not a
defendant in any suit, action, arbitration, or legal, administrative or other
proceeding, or governmental investigation which is pending or, to the best
knowledge of NB, threatened against or affecting NB or its business, assets or
financial condition. NB is not in default with respect to any order,
writ, injunction or decree of any federal, state, local or foreign court,
department, agency or instrumentality applicable to it. NB is not
engaged in any material litigation to recover monies due to it.
-6-
3.13 Authority. The Board of
Directors of NB has authorized the execution of this Agreement and the
transactions contemplated herein, and NB has full power and authority to
execute, deliver and perform this Agreement, and this Agreement is the legal,
valid and binding obligation of NB, and is enforceable in accordance with its
terms and conditions.
3.14 Ability to Carry Out
Obligations. The execution and delivery of this Agreement by NB and the
performance by NB of its obligations hereunder will not cause, constitute or
conflict with or result in (a) any breach or violation of any of the provisions
of or constitute a default under any license, indenture, mortgage, instrument,
article of incorporation, bylaw or other agreement or instrument to which NB is
a party, or by which it may be bound, nor will any consents or authorization of
any party other than those hereto be required, (b) an event that would permit
any party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of NB, or (c) an event that
would result in the creation or imposition of any lien, charge or encumbrance on
any asset of NB.
3.15 Full Disclosure. None of the
representations and warranties made by NB herein, or in any exhibit, certificate
or memorandum furnished
or to be furnished by NB or on its behalf, contains or will contain any untrue
statement of material fact or omit any material fact the omission of which would
be misleading.
3.16 Assets. NB has no
assets or liabilities.
3.17 Material
Contracts. NB has no material contracts.
3.18 Indemnification. NB agrees to
indemnify, defend and hold Organic harmless against and in respect of any and
all claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties and reasonable
attorney fees asserted by third parties against Organic, which arise out of, or
result from (i) any breach by NB in performing any of its covenants or
agreements in this Agreement or in any schedule, certificate, exhibit or other
instrument furnished or to be furnished by NB under this
Agreement, (ii) a failure of any representation or warranty in this
Article III, or (iii) any untrue statement made by NB in this
Agreement.
3.19 Criminal or Civil Acts. For a
period of five years prior to the execution of this Agreement, no executive
officer, director or principal stockholder of NB has been convicted of a felony
crime, filed for personal bankruptcy, been the subject of a Securities and
Exchange Commission (“Commission”) or NASD judgment or decree, or is currently
the subject to an investigation in connection with any felony crime or
Commission or NASD proceeding.
3.20 Pink Sheets Trading
Status. NB shall be in compliance with all requirements for,
and its common stock shall be quoted on, the Pink Sheets on the date immediately
prior to the Closing Date, such that the common stock of NB may continue to be
so quoted without interruption following the Closing Date.
-7-
ARTICLE
IV
Covenants
Prior to the Closing Date
4.1 Investigative Rights. Prior
to the Closing Date, each party shall provide to the other party, and such other
party’s counsel, accountants, auditors and other authorized representatives,
full access during normal business hours and upon reasonable advance written
notice to all of each party’s properties, books, contracts, commitments and
records for the purpose of examining the same. Each party shall
furnish the other party with all information concerning each party’s affairs as
the other party may reasonably request. If during the investigative
period one party learns that a representation of the other party was not
accurate, no such claim may be asserted by the party so learning that a
representation of the other party was not accurate.
4.2 Conduct of Business. Prior to
the Closing Date, each party shall conduct its business in the normal course and
shall not sell, pledge or
assign
any assets without the prior written approval of the other party, except in the
normal course of business. Neither party shall amend its Articles of
Incorporation or Bylaws (except as may be described in this Agreement), declare
dividends, redeem or sell stock or other securities. Neither party
shall enter into negotiations with any third party or complete any transaction
with a third party involving the sale of any of its assets or the exchange of
any of its common stock.
4.3 Confidential
Information. Each party will treat all non-public,
confidential and trade secret information received from the other party as
confidential, and such party shall not disclose or use such information in a
manner contrary to the purposes of this Agreement. Moreover, all such
information shall be returned to the other party in the event this Agreement is
terminated.
4.4 Notice of
Non-Compliance. Each party shall give prompt notice to the
other party of any representation or warranty made by it in this Agreement
becoming untrue or inaccurate in any respect or the failure by it to comply with
or satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement.
ARTICLE
V
Conditions
Precedent to NB’s Performance
5.1 Conditions. NB’s obligations
hereunder shall be subject to the satisfaction at or before the Closing Date of
all the conditions set forth in this Article V. NB may waive any or
all of these conditions in whole or in part without prior notice; provided,
however, that no such waiver of a condition shall constitute a waiver by NB of
any other condition of or any of NB’s other rights or remedies, at law or in
equity, if Organic shall be in default of any of its representations, warranties
or covenants under this Agreement.
-8-
5.2 Accuracy of Representations.
Except as otherwise permitted by this Agreement, all representations and
warranties by Organic in this Agreement or in any written statement that shall
be delivered to NB by Organic under this Agreement shall be true and accurate on
and as of the Closing Date as though made at that time.
5.3 Performance. Organic shall
have performed, satisfied and complied with all covenants, agreements and
conditions required by this Agreement to be performed or complied with by it on
or before the Closing Date.
5.4 Absence of Litigation. No
action, suit or proceeding, including injunctive actions, before any court or
any governmental body or authority, pertaining to the transaction contemplated
by this Agreement or to its consummation, shall have been instituted or
threatened against Organic on or before the Closing Date.
5.5 Officer’s Certificate.
Organic shall have delivered to NB a certificate dated the Closing Date signed
by the Chief Executive Officer of Organic
certifying that each of the conditions specified in this Article has been
fulfilled and that all of the representations set forth in Article II are true
and correct as of the Closing Date.
5.6 Other Conditions. Organic
shall have completed the Private Placement required under Section 1.3 and the NB
Principals shall have agreed to the revised terms of the Warrants as required
under Section 1.5.
ARTICLE
VI
Conditions
Precedent to Organic’s Performance
6.1 Conditions. Organic’s
obligations hereunder shall be subject to the satisfaction at or before the
Closing Date of all the conditions set forth in this Article VI. Organic may
waive any or all of these conditions in whole or in part without prior notice;
provided, however, that no such waiver of a condition shall constitute a waiver
by Organic of any other condition of or any of Organic’s rights or remedies, at
law or in equity, if NB shall be in default of any of its representations,
warranties or covenants under this Agreement.
6.2 Accuracy of Representations.
Except as otherwise permitted by this Agreement, all representations and
warranties by NB in this Agreement or in any written statement that shall be
delivered to Organic by NB under this Agreement shall be true and accurate on
and as of the Closing Date as though made at that time.
6.3 Performance. NB shall have
performed, satisfied and complied with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by it on or before
the Closing Date.
6.4 Absence of Litigation. No
action, suit or proceeding before any court or any governmental body or
authority, pertaining to the transaction contemplated by this Agreement or to
its consummation, shall have been instituted or threatened against NB on or
before the Closing Date.
-9-
6.5 Officer’s Certificate. NB
shall have delivered to Organic a certificate dated the Closing Date signed by
the Chief Executive Officer of NB certifying that each of the conditions
specified in this Article has been fulfilled and that all of the representations
set forth in Article III are true and correct as of the Closing
Date.
6.6 Payment of Liabilities. On or
before the Closing Date, NB shall have paid any outstanding obligations and
liabilities of NB through the Closing Date, including obligations created
subsequent to the execution of this Agreement.
6.7 Directors of NB. On the
Closing Date, the Board of Directors of NB shall resign and elect as directors
the Organic directors as set forth in Section 2.4.
6.8 Officers of NB. On the
Closing Date, the newly constituted Board of Directors of NB shall elect the
officers of Organic as set forth in Section 2.4 and NB’s existing executive
officers shall resign.
ARTICLE
VII
Closing
7.1 Closing. The closing of this
Agreement shall be held at the offices of Xxxx X. Agron at any mutually
agreeable time and date prior to April 30, 2008, unless extended by mutual
agreement. At the closing:
|
|
(a)
|
Organic
shall deliver to NB (i) copies of Exhibit 1.2 executed by all of the
Organic Security Holders, (ii) certificates representing all of the
outstanding Organic Shares duly endorsed to NB, (iii) the officer’s
certificate described in Section 5.5, and (iv) signed minutes of its
directors approving this Agreement;
|
|
|
(b)
|
NB
shall deliver to the Organic Security Holders (i) certificates
representing an aggregate of 9,299,972 shares of NB’s common stock
pursuant to the computations set forth in Exhibit 1.1 hereto, (ii) the
officer’s certificate described in Section 6.5, (iii) signed minutes of
its directors approving this Agreement, and (iv) resignations of its
directors and executive officers pursuant to Sections 6.7 and 6.8;
and
|
|
|
(c)
|
Organic
shall deliver to certain stockholders of NB certified funds in the amount
of $200,000 (less any payments previously made to such stockholders) in
full payment for 500,000 shares of NB common stock held by the
stockholders pursuant to Section 1.4, above. The subject 500,000 shares
shall then be cancelled by Organic.
|
-10-
ARTICLE
VIII
Covenants
Subsequent to the Closing Date
8.1 Registration and Listing.
Following the Closing Date, NB shall use its best efforts to:
|
|
(a)
|
Continue
NB’s common stock quotation on the Pink
Sheets;
|
|
|
(b)
|
List
NB’s securities in Standard & Poor’s OTC or Corporate Manual;
and
|
|
|
(c)
|
File,
within 90 days from the Closing Date, a registration statement
on Form S-1 with the Securities and Exchange Commission registering all of
the shares of common stock and common stock underlying the Warrants held
by the NB Principals, along with certain other shareholders for whom NB
may agree to register such shares.
|
|
ARTICLE
IX
|
Miscellaneous
9.1 Captions and Headings. The
article and Section headings throughout this Agreement are for convenience and
reference only and shall not define, limit or add to the meaning of any
provision of this Agreement.
9.2 No Oral Change. This
Agreement and any provision hereof may not be waived, changed, modified or
discharged orally, but only by an agreement in writing signed by the party
against whom enforcement of any such waiver, change, modification or discharge
is sought.
9.3 Non-Waiver. The failure of
any party to insist in any one or more cases upon the performance of any of the
provisions, covenants or conditions of this Agreement or to exercise any option
herein contained shall not be construed as a waiver or relinquishment for the
future of any such provisions, covenants or conditions. No waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other subsequent breach.
9.4 Time of Essence. Time is of
the essence of this Agreement and of each and every provision
hereof.
9.5 Entire Agreement. This
Agreement contains the entire Agreement and understanding between the parties
hereto and supersedes all prior agreements and understandings.
9.6 Choice of Law. This Agreement
and its application shall be governed by the laws of the state of
Nevada.
9.7 Counterparts. This Agreement
may be executed simultaneously in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
-11-
9.8 Notices. All notices,
requests, demands and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given on the date of service if
served personally on the party to whom notice is to be given, or on the third
day after mailing if mailed to the party to whom notice is to be given, by first
class mail, registered or certified, postage prepaid, and properly addressed as
follows:
|
NB:
|
NB
Design and Licensing, Inc.
|
|
0000
X. Xxxx Xxxxxx, Xxxxx 000
|
|
|
Xxxxxxxxx,
Xxxxxxxx 00000
|
|
|
Attn: Xxxxxx
X. Xxxxxxx, Chief Executive Officer
|
|
|
Organic:
|
|
|
0000
XX Xxxx 000, Xxxxx 000
|
|
|
Xxx
Xxxxxxx, XX 00000
|
|
|
Attn: Xxx
Xxxxxxxx, Chief Executive
Officer
|
9.9 Binding Effect. This
Agreement shall inure to and be binding upon the heirs, executors, personal
representatives, successors and assigns of each of the parties to this
Agreement.
9.10 Mutual Cooperation. The
parties hereto shall cooperate with each other to achieve the purpose of this
Agreement and shall execute such other and further documents and take such other
and further actions as may be necessary or convenient to effect the transaction
described herein.
9.11 Finders. There are no finders
in connection with this transaction.
9.12 Announcements. The
parties will consult and cooperate with each other as to the timing and content
of any public announcements regarding this Agreement.
9.13 Expenses. Each party will
bear their own expenses, including legal fees incurred in connection with this
Agreement.
9.14 Survival of Representations and
Warranties. The representations, warranties, covenants and agreements of
the parties set forth in this Agreement or in any instrument, certificate,
opinion or other writing providing for in it, shall survive the Closing
Date.
9.15 Exhibits. As of the execution
hereof, the parties have provided each other with the exhibits described
herein. Any material changes to the exhibits shall be immediately
disclosed to the other party.
9.16 Legal Counsel. NB has been
represented by Xxxx X. Agron, Esq. (“Agron”) in connection with this Agreement
and Organic has been advised by separate counsel selected by it. The
parties acknowledge that Agron has previously represented certain of Organic’s
principals in connection with other matters. Both parties waive any
potential for a conflict of interest that may arise in connection with Agron’s
prior representation of the parties and specifically waive any conflict of
interest, claim or cause of action that may arise in connection with such prior
representation.
-12-
9.17 Termination, Amendment and
Waiver.
(a) Termination. This
Agreement may be terminated at any time prior to the Closing Date, whether
before or after approval of matters presented in connection with the share
exchange by the stockholders of NB or by the stockholders of
Organic:
(1) By
mutual written consent of Organic and NB;
(2) By
either Organic or NB;
|
|
(i)
|
If
any court of competent jurisdiction or any governmental, administrative or
regulatory authority, agency or body shall have issued an order, decree or
ruling or taken any other action permanently enjoining, restraining or
otherwise prohibiting the transactions contemplated by this Agreement;
or
|
|
|
(ii)
|
If
the transaction shall not have been consummated on or before April 30,
2008, unless the failure to consummate the transaction is the result of a
material breach of this Agreement by the party seeking to terminate this
Agreement. If the failure to consummate the transaction is the
result of a material breach by Organic, including its inability to raise
the $210,000 of equity financing required in Section 1.3, then NB shall
retain the $15,000 deposit made to it by Organic with the letter of intent
executed by the parties on February 15,
2008.
|
(3) By
Organic, if NB breaches any of its representations or warranties hereof or fails
to perform in any material respect any of its covenants, agreements or
obligations under this Agreement; and
(4) By
NB, if Organic breaches any of its representations or warranties hereof or fails
to perform in any material respect any of its covenants, agreements or
obligations under this Agreement.
(b) Effect of
Termination. In the event of termination of this Agreement by
either NB or Organic, as provided herein, this Agreement shall forthwith become
void and have no effect,
without any liability or obligation on the part of Organic or NB, except as set
forth in 9.17(a)(2)(ii) above with respect to the $15,000 deposit by Organic,
and such termination shall not relieve any party hereto for any intentional
breach prior to such termination by a party hereto of any of its representations
or warranties or any of its covenants or agreements set forth in this
Agreement.
-13-
(c) Extension;
Waiver. At any time prior to the Closing Date, the parties
may, to the extent legally allowed, (a) extend the time for the performance of
any of the obligation of the other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto or waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part
of a party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. The failure
of any party to this Agreement to assert any of its rights under this Agreement
or otherwise shall not constitute a waiver of such rights.
(d) Procedure for Termination,
Amendment, Extension or Waiver. A termination of this
Agreement, an amendment of this Agreement or an extension or waiver shall, in
order to be effective, require in the case of Organic or NB, action by its
respective Board of Directors or the duly authorized designee of such Board of
Directors.
[Remainder
of Page Intentionally Blank; Signature Page Follows]
-14-
In witness whereof, the parties have
executed this Agreement Concerning the Exchange of Securities on the date
indicated above.
|
NB
DESIGN AND LICENSING, INC
|
||||
|
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
By:
|
/s/ Xxxxxx Xxxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxx
Chief
Executive
Officer
|
Xxxxxx
Xxxxxxxx
Chief
Executive
Officer
|
|||
|
SOLELY
AS TO SECTION 1.5:
|
The NB
Principals:
/s/ Xxxxxxx
Xxxxxx
|
Name
of NB Principal: XXXXXX
FAMILY PARTNERS, LTD.
|
||||
|
Name
of Authorized Signator: XXXXXXX
XXXXXX
|
||||
|
Number
of NB Shares Owned on Closing Date: 560,000
|
||||
|
Number
of NB Warrants Owned on Closing Date: 3,360,000
|
||||
/s/
Xxxxxx Xxxxxxx
|
Name
of NB Principal: XXXXXXX
FAMILY TRUST
|
||||
|
Name
of Authorized Signator: XXXXXX
XXXXXXX
|
||||
|
Number
of NB Shares Owned on Closing Date: 240,000
|
||||
|
Number
of NB Warrants Owned on Closing Date: 1,440,000
|
||||
|
Name
of NB Principal:
|
||||
|
Name
of Authorized Signator:
|
||||
|
Number
of NB Shares Owned on Closing Date:
|
||||
|
Number
of NB Warrants Owned on Closing Date:
|
||||
|
Name
of NB Principal:
|
||||
|
Name
of Authorized Signator:
|
||||
|
Number
of NB Shares Owned on Closing Date:
|
||||
|
Number
of NB Warrants Owned on Closing Date:
|
||||
|
Name
of NB Principal:
|
||||
|
Name
of Authorized Signator:
|
||||
|
Number
of NB Shares Owned on Closing Date:
|
||||
|
Number
of NB Warrants Owned on Closing Date:
|
||||
-15-
EXHIBIT
1.1
SCHEDULE
OF ORGANIC SECURITY HOLDERS
AND
ALLOCATION
OF NB COMMON SHARES
|
Name
of Organic
Security Holder
|
SS
or
TAX IS #
|
Number
of Organic
Shares Exchanged
|
Number
of
NB
Common
Shares to be
Issued
|
|
Xxxxx,
Xxxx
|
###-##-####
|
40,000
|
123,740
|
|||
|
Best, Inc.
c/o
Xxxx Xxxxxxxxx
|
00-0000000
|
500,000
|
421,750
|
|||
|
Xxxxxx,
Cap
|
###-##-####
|
475,000
|
400,663
|
|||
|
Xxxxxxx,
M.C.
|
###-##-####
|
50,000
|
42,175
|
|||
|
Xxxxxx,
Xxxxx
|
###-##-####
|
30,000
|
25,305
|
|||
|
CEOCAST, Inc.
Xxxxxx
Xxxxxxxxx
(Xxxxxxx
Xxxxx)
|
###-##-####
|
200,000
|
168,700
|
|||
|
CSM Consulting, LLC
Xxxxxxxx,
Xxxxxxxxxxxxxx
|
###-##-####
|
30,000
|
25,305
|
|||
|
Xxxx,
Xxxxx
|
Not
US Ctzn
|
300,000
|
253,050
|
|||
|
Xxxxxxx,
Xxx
|
###-##-####
|
240,000
|
202,440
|
|||
|
Xxxxxxxxx,
X.X. Xxxxxxxx
|
###-##-####
|
500,000
|
421,750
|
|||
|
Xxxxxxxxx,
Xxxxxxx
|
###-##-####
|
500,000
|
421,750
|
|||
|
Xxxxxx,
X. Xxxxxx
|
###-##-####
|
100,000
|
84,350
|
|||
|
Xxxx,
Xxxx
|
###-##-####
|
30,000
|
25,305
|
|||
|
Xxxxxxx,
Xxxxx Xxxxxx
|
###-##-####
|
1,000,000
|
843,500
|
|||
|
Xxxxxx,
Xxxxxxxx
|
###-##-####
|
100,000
|
84,350
|
|||
|
Institutional Analyst, Inc.
Xxxxx,
Xxxxxx
|
###-##-####
|
100,000
|
84,350
|
|||
|
KBK Venture, TX
Xxxxx
Xxxxxxxxx
|
00-0000000
|
250,000
|
210,875
|
|||
|
Xxxx,
Xxxxxxxx
|
###-##-####
|
30,000
|
25,305
|
|||
|
Xxxxxx,
Xxxxx
|
30,000
|
25,305
|
||||
|
Xxxxxx,
Xxxxxx Xxxxx
|
###-##-####
|
1,000,000
|
843,500
|
|||
|
Xxxxxxxxxx,
Xxxxxx
|
###-##-####
|
100,000
|
84,350
|
-16-
ALLOCATION
OF NB COMMON SHARES
|
Name
of Organic
Security Holder
|
SS
or
TAX IS #
|
Number
of Organic
Shares Exchanged
|
Number
of
NB
Common
Shares to be
Issued
|
|
Xxxxx, Inc.
c/o
Xxxx Xxxxxxxxx
|
00-0000000
|
500,000
|
421,750
|
|||
|
Magnet Marketing, Inc.
Xxxxx
Xxxx
|
Not
US Ctzn
|
200,000
|
168,700
|
|||
|
Xxxxxx,
Xxxx
|
###-##-####
|
50,000
|
42,175
|
|||
|
XxXxxxx,
Xxxxxx
|
###-##-####
|
30,000
|
25,305
|
|||
|
Xxxxx,
Xxx Xx.
|
###-##-####
|
31,580
|
26,638
|
|||
|
Xxxxx,
Xxx III
|
###-##-####
|
31,580
|
26,638
|
|||
|
Xxxxxxxxx,
Xxxx
|
###-##-####
|
400,000
|
337,400
|
|||
|
Xxxxxxxxx,
Xxxx (TTE)
|
00-0000000
|
148,758
|
125,477
|
|||
|
Xxxxxxxx,
Xxx
|
###-##-####
|
1,500,000
|
1,265,250
|
|||
|
Navy,
Xxxxxx
|
###-##-####
|
200,000
|
168,700
|
|||
|
Ogo, Inc.
Xxxxx
Xxxx
|
Not
US Ctzn
|
200,000
|
168,700
|
|||
|
Xxxx,
Xxxxxxx
|
###-##-####
|
25,000
|
21,088
|
|||
|
Xxxxxx,
Xxxxxx
|
###-##-####
|
100,000
|
84,350
|
|||
|
Xxxxx,
Xxxxxxxx
|
###-##-####
|
100,000
|
84,350
|
|||
|
Xxxxxx,
Xxxxx
|
###-##-####
|
250,000
|
210,875
|
|||
|
Xxxxxx,
Xxxxxx
|
###-##-####
|
100,000
|
84,350
|
|||
|
Xxxxx,
Xxxxxxx
|
###-##-####
|
50,000
|
42,175
|
|||
|
TriEquity, Inc.
Xxxx
Xxxxxxxxxx
|
###-##-####
|
100,000
|
84,350
|
|||
|
Xxxxxx,
Xxxxxx
|
###-##-####
|
30,000
|
25,305
|
|||
|
Xxxx,
Xxxxxxx
|
###-##-####
|
50,000
|
42,175
|
|||
|
Winning Fund Mgmt
Xxxxx
Xxxx
|
Not
US Ctzn
|
100,000
|
84,350
|
|||
|
Xxxx,
Xxxxx
|
###-##-####
|
30,000
|
25,305
|
|||
|
ZZ Bottom, Inc.
c/o
Xxxx Xxxxxxxxx
|
00-0000000
|
500,000
|
421,750
|
|||
|
Xxx,
Xxx Xxxx
|
###-##-####
|
50,000
|
50,000
|
|||
|
Xxx,
Xxx Pong
|
###-##-####
|
16,666
|
16,666
|
-17-
ALLOCATION
OF NB COMMON SHARES
|
Name
of Organic
Security Holder
|
SS
or
TAX IS #
|
Number
of Organic
Shares Exchanged
|
Number
of
NB
Common
Shares to be
Issued
|
|
Xxxxxxxxx,
Xxxxxxx
|
###-##-####
|
100,000
|
100,000
|
|||
|
Xxxxxx,
Xxxxxx
|
###-##-####
|
100,000
|
100,000
|
|
Xxxxxxxxxx,
Xxxx
|
###-##-####
|
35,000
|
35,000
|
|||
|
Penariello,
Xxxxx
|
###-##-####
|
33,333
|
33,333
|
|||
|
Xxxx,
Xxxxx
Xxxx,
Xxxx
|
###-##-####
###-##-####
|
33,333
|
33,333
|
|||
|
Ruth,
Don
Xxxx,
Xxxxxx
|
###-##-####
###-##-####
|
33,333
|
33,333
|
|||
|
Xxxxxxxx,
Xxxxx
|
###-##-####
|
200,000
|
200,000
|
|||
|
TOTALS
|
10,933,583
|
9,406,638
|
||||
[We
need Xxxx X. to insert names and share amounts of all the Organic Security
Holders, including private placement people, following the closing of the
private placement and to obtain their signatures on Exhibit 1.2]
-18-
EXHIBIT
1.2
SUBSCRIPTION
AGREEMENT
In connection with my exchange of $.001
par value common stock of Organic Alliance, Inc. (“Organic”), for
the $.0001 par value common stock of NB Design and Licensing, Inc. (“NB”),
pursuant to the Agreement Concerning The Exchange of Securities by and among NB
Design and Licensing, Inc. and Organic Alliance, Inc. and the Security Holders
of Organic Alliance, Inc. (the “Exchange Agreement”), I acknowledge the matters
set forth below and promise that the statements made herein are true. I
understand that NB is relying on my truthfulness in issuing its securities to
me.
I hereby represent and warrant to NB
that I have the full power and authority to execute, deliver and perform this
Subscription Agreement and to consummate the transactions contemplated
hereby. This Subscription Agreement is a legal, valid and binding
obligation of mine, enforceable against me in accordance with its
terms. I own the securities in Organic that I am exchanging for
securities of NB free and clear of all pledges, liens, encumbrances, security
interests, equities, claims, options, preemptive rights, rights of first
refusal, or any other limitation on my ability to vote such securities or to
transfer such securities to NB. I have full right, title and interest
in and to the Organic securities that I am exchanging.
I understand that NB’s common stock
(the “Securities) is being issued to me in a private transaction in exchange for
my securities in Organic and in reliance upon the exemption provided in section
4(2) and/or Regulation D under the Securities Act of 1933, as amended
(the “Act”) for non-public offerings and pursuant to the Exchange
Agreement. I understand that the Securities are “restricted” under
applicable securities laws and may not be sold by me except in a registered
offering (which may not ever occur) or in a private transaction like this
one. I know this is an illiquid investment and that therefore I may
be required to hold the Securities for an indefinite period of time, but under
no circumstances less than one year from the date of their
issuance.
I am acquiring the Securities solely
for my own account, for long-term investment purposes only and not with a view
to sale or other distribution. I agree not to dispose of any
Securities unless and until counsel for NB shall have determined that the
intended disposition is permissible and does not violate the Act, any applicable
state securities laws or rules and regulations promulgated
thereunder.
All information, financial and
otherwise, or documentation pertaining to all aspects of my acquisition of the
Securities and the activities and financial information of NB has been made
available to me and my representatives, if any, and I have had ample opportunity
to meet with and ask questions of senior officers of NB, and I have received
satisfactory answers to any questions I asked.
In acquiring the Securities, I have
been afforded access to the Exchange Agreement and have made such independent
investigations of NB as I deemed appropriate. I am an “accredited
investor” as that term is defined in Regulation D, Rule 501 of the Act and am an
experienced investor,
have made speculative investments in the past and am capable of analyzing the
merits of an investment in the Securities.
I understand that the Securities are
highly speculative, involve a great degree of risk and should only be acquired
by individuals who can afford to lose their entire
investment. Nevertheless, I consider this a suitable investment for
me because I have adequate financial resources and income to maintain my current
standard of living even after my acquisition of the Securities. I
know that NB currently has only negligible assets and liabilities, and that
although I could lose my entire investment, I am acquiring the Securities
because I believe the potential rewards are commensurate with the
risk. Even if the Securities became worthless, I could still maintain
my standard of living without significant hardship to me or my
family.
By signing this Subscription Agreement,
I also accept and agree to be bound by and to abide by the terms and conditions
of the Exchange Agreement as if I had executed the Exchange Agreement
itself.
|
Date:
|
,
2008
|
| _____________________________________ | |
|
Signature
|
|
| _____________________________________ | |
|
Name,
Please Print
|
|
| _____________________________________ | |
|
Residence
Address
|
|
| _____________________________________ | |
|
City,
State and Zip Code
|
|
| _____________________________________ | |
|
Area
Code and Telephone
Number
|
|
| _____________________________________ | |
|
Social
Security Number
|
|
| _____________________________________ | |
|
Number
of Organic Shares
exchanged
|
-2-
EXHIBIT
2.5
FINANCIAL
STATEMENTS OF ORGANIC
EXHIBIT
3.5
FINANCIAL
STATEMENTS OF NB
