AGREEMENT CONCERNING THE EXCHANGE OF SECURITIES BY AND AMONG INHIBITON THERAPEUTICS, INC. AND HPI PARTNERS, LLC AND THE SECURITY HOLDERS OF HPI PARTNERS, LLC
EXHIBIT
2.1
AGREEMENT
CONCERNING
THE EXCHANGE OF SECURITIES
BY
AND AMONG
AND
HPI
PARTNERS, LLC AND
THE
SECURITY HOLDERS OF HPI PARTNERS, LLC
INDEX
|
Page
|
|
|
ARTICLE I – Exchange of
Securities
|
1
|
|
1.1 Issuance
of Securities
|
1
|
|
1.2 Exemption
from Registration
|
1
|
|
1.3 Private
Placement
|
2
|
|
1.4 Computation
of Inhibiton Shares Issuable To HPIP Security
Holders
|
2
|
|
1.5 Computation
of Inhibiton Warrants Issuable To HPIP Warrant
Holders
|
2
|
|
1.6 Promissory
Note
|
2
|
|
ARTICLE II – Representations and
Warranties of HPIP
|
3
|
|
2.1 Organization
|
3
|
|
2.2 Capital
|
3
|
|
2.3 Subsidiaries
|
3
|
|
2.4 Managers
and Officers
|
3
|
|
2.5 Financial
Statements
|
3
|
|
2.6 Absence
of Changes
|
3
|
|
2.7 Absence
of Undisclosed Liabilities
|
4
|
|
2.8 Tax
Returns
|
4
|
|
2.9 Investigation
of Financial Condition
|
4
|
|
2.10 Intellectual
Property Rights
|
4
|
|
2.11 Compliance
with Laws
|
4
|
|
2.12 Litigation
|
4
|
|
2.13 Authority
|
4
|
|
2.14 Ability
to Carry Out Obligations
|
5
|
|
2.15 Full
Disclosure
|
5
|
|
2.16 Assets
|
5
|
|
2.17 Material
Contracts
|
5
|
|
2.18 Indemnification
|
5
|
|
2.19 Criminal
or Civil Acts
|
5
|
|
2.20 Restricted
Securities
|
5
|
|
ARTICLE III – Representations and
Warranties of Inhibiton
|
6
|
|
3.1 Organization
|
6
|
|
3.2 Capital
|
6
|
|
3.3 Subsidiaries
|
6
|
|
3.4 Directors
and Officers
|
6
|
|
3.5 Financial
Statements
|
6
|
|
3.6 Absence
of Changes
|
6
|
|
3.7 Absence
of Undisclosed Liabilities
|
7
|
|
3.8 Tax
Returns
|
7
|
|
3.9 Investigation
of Financial Condition
|
7
|
|
3.10 Intellectual
Property Rights
|
7
|
|
3.11 Compliance
with Laws
|
7
|
i
|
3.12 Litigation
|
7
|
|
3.13 Authority
|
7
|
|
3.14 Ability
to Carry Out Obligations
|
7
|
|
3.15 Full
Disclosure
|
8
|
|
3.16 Assets
|
8
|
|
3.17 Material
Contracts
|
8
|
|
3.18 Indemnification
|
8
|
|
3.19 Criminal
or Civil Acts
|
8
|
|
3.20 Bulletin
Board Trading Status
|
8
|
|
ARTICLE IV – Covenants Prior to
the Closing Date
|
8
|
|
4.1 Investigative
Rights
|
8
|
|
4.2 Conduct
of Business
|
8
|
|
4.3 Confidential
Information
|
9
|
|
4.4 Notice
of Non-Compliance
|
9
|
|
ARTICLE V – Conditions Precedent
to Inhibiton’s Performance
|
9
|
|
5.1 Conditions
|
9
|
|
5.2 Accuracy
of Representations
|
9
|
|
5.3 Performance
|
9
|
|
5.4 Absence
of Litigation
|
9
|
|
5.5 Officer’s
Certificate
|
9
|
|
5.6 Legal
Opinion
|
10
|
|
ARTICLE VI – Conditions Precedent
to HPIP’s Performance
|
10
|
|
6.1 Conditions
|
10
|
|
6.2 Accuracy
of Representations
|
10
|
|
6.3 Performance
|
10
|
|
6.4 Absence
of Litigation
|
10
|
|
6.5 Officer’s
Certificate
|
10
|
|
6.6 Directors
of Inhibiton
|
10
|
|
ARTICLE VII –
Closing
|
11
|
|
7.1 Closing
|
11
|
|
ARTICLE VIII – Covenants
Subsequent to the Closing Date
|
11
|
|
8.1 Registration
and Listing
|
11
|
|
8.2 Business
Segments
|
11
|
|
ARTICLE IX –
Miscellaneous
|
11
|
|
9.1 Captions
and Headings
|
11
|
|
9.2 No
Oral Change
|
12
|
|
9.3 Non-Waiver
|
12
|
|
9.4 Time
of Essence
|
12
|
|
9.5 Entire
Agreement
|
12
|
ii
|
9.6 Choice
of Law
|
12
|
|
9.7 Counterparts
|
12
|
|
9.8 Notices
|
12
|
|
9.9 Binding
Effect
|
12
|
|
9.10 Mutual
Cooperation
|
12
|
|
9.11 Finders
|
13
|
|
9.12 Announcements
|
13
|
|
9.13 Expenses
|
13
|
|
9.14 Survival
of Representations and Warranties
|
13
|
|
9.15 Exhibits
|
13
|
|
9.16 Termination,
Amendment and Waiver
|
13
|
|
EXHIBITS
|
|
|
Allocation of
Securities
|
Exhibit
1.1
|
|
Subscription
Agreement
|
Exhibit
1.2
|
|
Financial Statements of
HPIP
|
Exhibit
2.5
|
|
Material Contracts of
HPIP
|
Exhibit
2.17
|
|
Financial Statements of
Inhibiton
|
Exhibit
3.5
|
|
Material Contracts of
Inhibiton…
|
Exhibit
3.17
|
iii
AGREEMENT
THIS AGREEMENT (“Agreement”) is made
this 4th day of March, 2009, by and between Inhibiton Therapeutics, Inc., a
Nevada corporation (“Inhibiton”), HPI Partners, LLC, a Colorado limited
liability company (“HPIP”), and the security holders of HPIP (the “HPIP 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, Inhibiton desires to acquire
all of the issued and outstanding limited liability company interests of HPIP
(the “HPIP Interests”) from the HPIP Security Holders in exchange for newly
issued unregistered shares of common stock of Inhibiton;
WHEREAS, HPIP desires to assist
Inhibiton in acquiring all of the HPIP Interests pursuant to the terms of this
Agreement; and
WHEREAS, all of the HPIP Security
Holders, by execution of Exhibit 1.2 hereto, agree to exchange all of the
HPIP Interests they hold as set forth in Exhibit 1.1 hereto, for
common shares of Inhibiton as set forth in Article 1 hereto.
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, Inhibiton agrees to issue
and exchange its fully paid and non-assessable unregistered shares of
Inhibiton’s $.001 par value common stock (the “Inhibiton Shares”) in
such amount as is set forth in Paragraph 1.4(a) and (b) below for all HPIP
Interests held by the HPIP Security Holders set forth in Exhibit 1.1
hereto. Inhibiton will also issue common stock purchase
warrants to HPIP warrant holders as set forth on Exhibit 1.1 hereto, on the
basis of one Inhibiton warrant for each HPIP warrant outstanding at the Closing
Date, pursuant to Paragraph 1.5 below. All
Inhibiton securities will be issued directly to the HPIP Security
Holders on the date the transaction contemplated by this Agreement closes (the
“Closing Date”), pursuant to the schedule set forth in
Exhibit 1.1.
1.2 Exemption from Registration.
The parties hereto intend that all Inhibiton securities to be issued to the HPIP
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 HPIP Security Holders
will execute and deliver to Inhibiton on the Closing Date a copy of the
Subscription Agreement set forth in Exhibit 1.2 hereto.
1.3 Private
Placement. Following the Closing Date, Inhibiton may issue
additional shares of its common stock to complete the private placement of HPIP
Interests as described in Paragraph 1.4(c) below.
1.4 Computation of Inhibiton Shares
Issuable to HPIP Security Holders. At the Closing Date all of the HPIP
Interests outstanding immediately prior to the Closing Date shall be acquired by
Inhibiton in exchange for the greater of:
(a) that number of fully paid and
non-assessable shares of Inhibiton common stock equal to (i) $12,000,000,
divided by (ii) the average of the prior 20 trading day closing prices of the
Inhibiton Common Stock immediately prior to the execution of this Agreement, the
quotient of which shall be distributed pro rata by the total dollar amount of
HPIP Interests outstanding as of the Closing Date of
$2,000,000, provided, however, that in no case shall the number of
shares to be issued be less than 80,000,000; or
(b) that number of fully paid and
non-assessable shares of Inhibiton common stock equal to 85% of the total number
of shares of Inhibiton common stock outstanding immediately following the
Closing Date of this Agreement.
(c) HPIP has commenced a
private placement of HPIP Interests that includes an over-allotment provision
allowing for the sale of up to $300,000 of HPIP Interests over and above the
$2,000,000 of HPIP Interests for up to 90 days following the Closing
Date. Accordingly, immediately following the Closing Date, Inhibiton
shall commence a 90-day private placement of Inhibiton common stock to be
offered solely to the Members of HPIP at a per share price equal to and in
accordance with the terms of Paragraph 1.4(a) above.
(d) Should there be more than
$2,000,000 of HPIP Interests outstanding at the Closing Date, the number of
shares of Inhibiton common stock issued under either (a) or (b) above shall be
increased on a proportional basis based on the percentage increase in HPIP
Interests over $2,000,000 (i.e., if there are $2,100,000 of HPIP Interests
outstanding, or a 5% increase, then the $12,000,000 in (i) above shall be
increased by 5% to $12,600,000).
(e) In addition, HPIP’s
total number of shares of Inhibiton issued hereunder shall be increased post
Closing Date by the same percentage increase as the increase in the total number
of outstanding shares of Inhibiton resulting from Inhibiton’s issuance, between
the Closing Date and 90 days following the Closing Date, of all shares it shall
issue in exchange for debt due from Inhibiton to third party debt
holders.
1.5 Computation of Inhibiton Warrants
Issuable To HPIP Warrant Holders. Inhibiton agrees to exchange
its warrants for all HPIP warrants outstanding as set forth in Exhibit 1.1
hereto, on the basis of one Inhibiton warrant for each HPIP warrant, at an
exercise price of $0.12 per share and exercisable until March 4,
2012
1.6 Promissory
Note. HPIP shall pay to Inhibiton $200,000 on the
Closing Date evidenced by a promissory note in such amount bearing interest at
5% per annum and due and payable by HPIP on or before March 4,
2014.
2
ARTICLE
II
Representations
and Warranties of HPIP
HPIP for itself and for its wholly
owned subsidiary, AlumiFuel Power, Inc., (“API”) hereby represents and warrants
to Inhibiton that:
2.1 Organization. HPIP is a
limited liability company duly organized, validly existing and in good standing
under the laws of Colorado, has all necessary corporate powers to own its
properties and to carry on its business as now owned and operated by it, and is
duly qualified to do business and is in good standing in each of the states
where its business requires qualification.
2.2 Capital. The authorized
capital stock of HPIP consists of the HPIP Interests set forth in Exhibit 1.1
hereto. All of the outstanding HPIP Interests 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 HPIP to issue any additional HPIP
Interests except the HPIP warrants described in Paragraph 1.5
above.
2.3 Subsidiaries. HPIP has one
wholly-owned subsidiary: AlumiFuel Power, Inc. a Colorado
corporation, which has been duly organized, validly existing and in good
standing under Colorado law.
2.4 Managers and Officers. The
names and titles of the managers and officers of HPIP as of the date of this
Agreement are as follows:
Name Position
▇▇▇▇▇
▇▇▇▇ Manager
▇▇▇▇▇▇ ▇.
▇▇▇▇▇ Manager
2.5 Financial Statements. Exhibit
2.5 hereto consists of the unaudited consolidated financial statements of HPIP
for the period from inception (November 8, 2007) through December 31, 2008 (the
“HPIP Financial Statements”). The HPIP Financial Statements have been prepared
in accordance with generally accepted accounting principles and practices
consistently followed by HPIP throughout the periods indicated, and fairly
present the financial position of HPIP as of the date of the balance sheet
included in the HPIP Financial Statements and the results of operations for the
period indicated. There are no material omissions or non-disclosures
in the HPIP Financial Statements.
2.6 Absence of Changes. Since
December 31, 2008, there has not been any material change in the financial
condition or operations of HPIP or API, 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.
3
2.7 Absence of Undisclosed
Liabilities. As of December 31, 2008, HPIP 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 HPIP Financial Statements.
2.8 Tax Returns. HPIP and API
have filed or will file on a timely basis all federal, state and local tax
returns required by law and have 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 HPIP or API.
2.9 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, Inhibiton, its legal counsel and accountants
shall have the opportunity to meet with HPIP’s accountants and attorneys to
discuss the financial condition of HPIP during reasonable business hours and in
a manner that does not interfere with the normal operation of HPIP’s
business. HPIP shall make available to Inhibiton all books and
records of HPIP, provided, however, that HPIP 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.
HPIP and API own or have the right to use all trademarks, service marks, trade
names, copyrights and patents material to their businesses as outlined in that
certain memorandum to the directors of Inhibiton dated March 3,
2009.
2.11 Compliance with Laws. To the
best of HPIP’s knowledge, HPIP and API have complied with, and are 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 their businesses or
properties.
2.12 Litigation. HPIP and API are
not defendants in any suit, action, arbitration or legal, administrative or
other proceeding, or governmental investigation which is pending or, to the best
knowledge of HPIP, threatened against or affecting HPIP or API or their
businesses, assets or financial condition. Neither is 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. Neither is engaged in any material litigation to recover monies
due to either of them.
2.13 Authority. The Board of
Directors of HPIP has authorized the execution of this Agreement and the
consummation of the transactions contemplated herein, and HPIP has full power
and authority to execute, deliver and perform this Agreement, and this Agreement
is a legal, valid and binding obligation of HPIP and is enforceable in
accordance with its terms and conditions. By execution of Exhibit
1.2, all of the HPIP Security Holders have agreed to and have approved the terms
of this Agreement.
4
2.14 Ability to Carry Out
Obligations. To the best of HPIP’s knowledge, the execution and delivery
of this Agreement by HPIP and the performance by HPIP 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 formation, operating agreement, bylaw, or other agreement or
instrument to which HPIP 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
HPIP, or (c) an event that would result in the creation or imposition of any
lien, charge or encumbrance on any asset of HPIP or API.
2.15 Full Disclosure. None of the
representations and warranties made by HPIP herein or in any exhibit,
certificate or memorandum furnished or to be furnished by HPIP, 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. HPIP owns all of the
assets set forth in Exhibit 2.5.
2.17 Material
Contracts. A list of all of HPIP’s material contracts is
attached as Exhibit 2.17.
2.18 Indemnification. HPIP agrees
to indemnify, defend and hold Inhibiton and Inhibiton’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 Inhibiton which arise out of, or result from (i) any breach by
HPIP 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 HPIP under this Agreement, (ii) a failure of any representation or
warranty in this Article II or (iii) any untrue statement made by HPIP 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, manage or principal Interest holder of HPIP has been convicted of a
felony crime, filed for personal bankruptcy, been the subject of a Commission or
NASD (FINRA) judgment or decree, or is currently the subject to any
investigation in connection with a felony crime or Commission or NASD
proceeding.
2.20 Restricted
Securities. HPIP and the HPIP Security Holders, by execution
of this Agreement and of Exhibit 1.2, acknowledge that all of the Inhibiton
securities issued by Inhibiton are restricted securities and none of such
securities may be sold or publicly traded except in accordance with the
provisions of the Act.
5
ARTICLE
III
Representations
and Warranties of Inhibiton
Inhibiton represents and warrants to
HPIP that:
3.1 Organization. Inhibiton 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 Inhibiton currently consists of 200,000,000 shares of $.001 par
value common stock, of which 22,725,993 shares are currently
outstanding. Inhibiton has 10,000,000 shares of preferred stock
authorized and none outstanding. All of Inhibiton’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 Inhibiton to issue any additional shares of its capital stock of any
class except for an aggregate of 3,638,719 stock options and warrants
exercisable at an average price of $.50 per share into Inhibiton common
stock.
3.3 Subsidiaries. Inhibiton does
not have any subsidiaries or own any interest in any other
enterprise.
3.4 Directors and Officers. The
officers and directors of Inhibiton are:
▇▇▇▇▇
▇▇▇▇ Chief
Executive Officer, Chief Financial Officer
and
Director
▇▇▇▇▇▇ ▇.
▇▇▇▇▇ Secretary
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ Director
3.5 Financial Statements. Exhibit
3.5 hereto consists of the audited financial statements of Inhibiton for the
years ended January 31, 2008 and 2007 and the unaudited financial statements of
Inhibiton for the nine months ended October 31, 2008 and 2007 (the “Inhibiton
Financial Statements”). The Inhibiton Financial Statements have been
prepared in accordance with generally accepted accounting principles and
practices consistently followed by Inhibiton throughout the periods indicated,
and fairly present the financial position of Inhibiton as of the dates of the
balance sheets included in the Inhibiton Financial Statements and the results of
operations for the periods indicated. There are no material omissions
or non-disclosures in the Inhibiton Financial Statements.
3.6 Absence of Changes. Since
October 31, 2008, there has not been any material change in the financial
condition or operations of Inhibiton, except as contemplated by this
Agreement.
6
3.7 Absence of Undisclosed
Liabilities. As of October 31, 2008, Inhibiton 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 Inhibiton Financial Statements.
3.8 Tax Returns. Within the times
and in the manner prescribed by law, Inhibiton 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, HPIP, its legal counsel and accountants shall
have the opportunity to meet with Inhibiton’s accountants and attorneys to
discuss the financial condition of Inhibiton. Inhibiton shall make
available to HPIP all books and records of Inhibiton.
3.10 Intellectual Property Rights.
Inhibiton does not have any patents, trademarks, service marks, trade names,
copyrights or other intellectual property rights material to its
business.
3.11 Compliance with Laws.
Inhibiton 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. Inhibiton 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 Inhibiton, threatened against or affecting Inhibiton or its
business, assets or financial condition. Inhibiton 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. Inhibiton is not engaged in any material litigation to recover
monies due to it.
3.13 Authority. The Board of
Directors of Inhibiton has authorized the execution of this Agreement and the
transactions contemplated herein, and Inhibiton has full power and authority to
execute, deliver and perform this Agreement, and this Agreement is the legal,
valid and binding obligation of Inhibiton, 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 Inhibiton
and the performance by Inhibiton 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 Inhibiton 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 Inhibiton, or (c) an event that would result in the creation or
imposition of any lien, charge or encumbrance on any asset of
Inhibiton.
7
3.15 Full Disclosure. None of the
representations and warranties made by Inhibiton herein, or in any exhibit,
certificate or memorandum furnished or to be furnished by Inhibiton 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. Inhibiton
owns all of the assets set forth in Exhibit 3.5.
3.17 Material
Contracts. A list of all of Inhibiton’s material contracts is
attached as Exhibit 3.17.
3.18 Indemnification. Inhibiton
agrees to indemnify, defend and hold HPIP 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 HPIP, which arise out
of, or result from (i) any breach by Inhibiton 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 Inhibiton under this
Agreement, (ii) a failure of any representation or warranty in this
Article III, or (iii) any untrue statement made by Inhibiton 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 Inhibiton has been convicted of a
felony crime, filed for personal bankruptcy, been the subject of a Securities
and Exchange Commission (“Commission”) or NASD (FINRA) judgment or decree, or is
currently the subject to an investigation in connection with any felony crime or
Commission or NASD proceeding.
3.20 Bulletin Board Trading
Status. Inhibiton shall be in compliance with all requirements for, and
its common stock shall continue to be quoted on, the Electronic Bulletin Board
on the Closing Date, such that the common stock of Inhibiton may continue to be
so quoted without interruption following the Closing Date.
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.
8
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, Articles of Formation
or Operating Agreement (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 securities.
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 Inhibiton’s Performance
5.1 Conditions. Inhibiton’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. Inhibiton 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 Inhibiton of any other condition of or any of
Inhibiton’s other rights or remedies, at law or in equity, if HPIP shall be in
default of any of its representations, warranties or covenants under this
Agreement.
5.2 Accuracy of Representations.
Except as otherwise permitted by this Agreement, all representations and
warranties by HPIP in this Agreement or in any written statement that shall be
delivered to Inhibiton by HPIP under this Agreement shall be true and accurate
on and as of the Closing Date as though made at that time.
5.3 Performance. HPIP 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 HPIP on or before the Closing Date.
5.5 Officer’s Certificate. HPIP
shall have delivered to Inhibiton a certificate dated the Closing Date signed by
the Chief Executive Officer of HPIP 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.
9
5.6 Legal
Opinion. HPIP shall have provided Inhibiton a legal opinion
that is satisfactory to Inhibiton, which opines as to the legal and valid
ownership by HPIP and API of their aluminum water split technology.
ARTICLE
VI
Conditions
Precedent to HPIP’s Performance
6.1 Conditions. HPIP’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. HPIP 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 HPIP of any other condition of or any of HPIP’s rights or remedies, at law or
in equity, if Inhibiton 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 Inhibiton in this Agreement or in any written statement that shall
be delivered to HPIP by Inhibiton under this Agreement shall be true and
accurate on and as of the Closing Date as though made at that time.
6.3 Performance. Inhibiton 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 Inhibiton on
or before the Closing Date.
6.5 Officer’s Certificate.
Inhibiton shall have delivered to HPIP a certificate dated the Closing Date
signed by the Chief Executive Officer of Inhibiton 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 Directors of Inhibiton. On
the Closing Date, the Directors of Inhibiton shall retain their positions as
Directors.
10
ARTICLE
VII
Closing
7.1 Closing. The closing of this
Agreement shall be held at the offices of ▇▇▇▇ ▇. Agron at any mutually
agreeable time and date prior to March 31, 2009, unless extended by mutual
agreement. At the closing:
|
(a)
|
HPIP
shall deliver to Inhibiton (i) copies of Exhibit 1.2 executed by all of
the HPIP Security Holders, (ii) certificates representing all of the
outstanding HPIP Interests and HPIP warrants duly endorsed to Inhibiton,
(iii) the officer’s certificate described in Paragraph 5.5, (iv) signed
minutes of its managers approving this Agreement, (v) the promissory note
described in Paragraph 1.6 above and, (vi) the legal opinion described in
paragraph 5.6 above.
|
|
(b)
|
Inhibiton
shall deliver to the HPIP Security Holders (i) certificates representing
that number of shares of Inhibiton’s common stock and warrants
issued pursuant to the computations set forth in Paragraph 1.4 and Exhibit
1.1 hereto, (ii) the officer’s certificate described in Paragraph 6.5,
(iii) signed minutes of its directors approving this Agreement, and (iv)
resignations of its executive officers pursuant to Paragraph
6.7
|
ARTICLE
VIII
Covenants
Subsequent to the Closing Date
8.1 Registration and Listing.
Following the Closing Date, Inhibiton shall use its best efforts to continue
Inhibiton’s common stock quotation on the Electronic Bulletin
Board.
8.2 Business
Segments. Within 90 days following the Closing Date, Inhibiton
shall appoint an independent committee comprised of members of its Board of
Directors and advisors, for the purpose of developing recommendations to the
Inhibiton Board of Directors and stockholders regarding the operation of the
separate business segments of Inhibiton including all assets and
liabilities.
ARTICLE
IX
Miscellaneous
9.1 Captions and Headings. The
Article and Paragraph 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.
11
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
Colorado.
9.7 Counterparts. This Agreement
may be executed simultaneously in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
9.8 Notices. All notices,
requests, demands and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given on the date of service if
served personally on the party to whom notice is to be given, or on the third
day after mailing if mailed to the party to whom notice is to be given, by first
class mail, registered or certified, postage prepaid, and properly addressed as
follows:
Inhibiton:
Inhibiton Therapeutics, Inc.
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Director
HPIP: HPI
Partners, LLC
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇
▇▇▇▇, Manager
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.
12
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 Termination, Amendment and
Waiver.
(a) Termination. This
Agreement may be terminated at any time prior to the Closing Date:
(1) By
mutual written consent of HPIP and Inhibiton;
(2) By
either HPIP or Inhibiton;
|
|
(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 June 30,
2009.
|
(3) By
HPIP, if Inhibiton 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
Inhibiton, if HPIP 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.
13
(b) Effect of
Termination. In the event of termination of this Agreement by
either Inhibiton or HPIP, as provided herein, this Agreement shall forthwith
become void and have no effect, without any liability or obligation on the part
of HPIP or Inhibiton.
(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 HPIP or Inhibiton, action by its
respective Board of Directors or Managers.
[Signature
Page Follows]
14
In witness whereof, the parties have
executed this Agreement Concerning the Exchange of Securities on the date
indicated above.
|
HPI
PARTNERS, LLC
|
|
|
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
By: /s/ ▇▇▇▇▇ ▇▇▇▇
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Director
|
▇▇▇▇▇
▇▇▇▇
Manager
|
15