EXECUTION VERSION
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this
"Agreement"), dated this 8th day of January, 2008, is entered
into by and between Nortia Capital Partners, Inc., a Nevada
corporation ("Buyer"), and Xxxxxxxxx Capital, Inc., a Colorado
corporation ("Seller"), with respect to the following:
A. Seller is the sole member of both Herd On the Street LLC, a
Colorado limited liability company ("HOS"), and Xxxxxxxxx
Investment Events LLC, a Colorado limited liability company
("FIE").
B. Seller desires to sell to Buyer, and Buyer desires to acquire
from Seller, Seller's membership interest in HOS and FIE (the
"Membership Interests") on the terms and conditions hereinafter
set forth.
ACCORDINGLY, in consideration of the premises and the mutual
covenants, agreements, representations and warranties herein, the
parties hereto agree as follows:
1 TRANSACTION.
On the terms and subject to all of the conditions hereof,
and upon the performance by the parties hereto of their
respective obligations hereunder, on the Closing Date (as that
term is defined in Section 1.3 hereof), the following shall be
effected:
1.1. Transfer of Membership Interests. Seller shall sell,
assign, transfer and convey to Buyer, free and clear of all
claims, liens, and restrictions, all of Seller's right, title and
interest in, to and under the Membership Interests.
1.2. Purchase Price. The purchase price for the Membership
Interests shall be 1,000,000 shares of Buyer's common stock, par
value $0.001 per share, (the "Buyer's Shares") which shall be
subject to the restrictions on transfer set forth in Exhibit B
(the "Purchase Price"). The parties agree that the aggregate
fair market value of the Buyer's Shares is $600,000.
1.3. Closing. Closing of the transactions contemplated by this
Agreement (the "Closing") shall take place as of 5:00 P.M.
Mountain Standard Time on the date hereof, or at such other time,
date and place as the parties hereto may agree (the "Closing
Date"). At the Closing:
(a) Seller shall deliver to Buyer:
(i) An assignment of the Membership Interests,
substantially in the form of Exhibit A attached hereto;
and
(ii) such other deeds, bills of sale, assignments,
certificates of title, documents and other instruments of
transfer and conveyance as may reasonably be requested by
Buyer, each in form and substance satisfactory to Buyer
and its legal counsel and executed by Seller.
(b) Buyer shall deliver to Seller stock certificates
representing the portion of the Purchase Price then payable duly
registered in the name of Seller or Seller's designee on the
stockholders' register of Buyer and bearing the legends required
by this Agreement;
2 REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Buyer to enter into this Agreement, upon
which Buyer has relied, and intends to rely, Seller hereby
represents and warrants to Buyer that:
2.1. Organizational Status.
(a) Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Colorado. Seller has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and
to consummate the transactions contemplated hereby, including
without limitation, to own, hold, sell and transfer the Membership
Interests.
(b) The execution and delivery by Seller of this Agreement
have been duly authorized by all necessary corporate action and no
other corporate action is required on the part of Seller in order to
authorize the execution, delivery and performance of this Agreement.
Seller has duly executed and delivered this Agreement and prior to the
Closing will have duly executed and delivered each other document to
be delivered hereunder by it. This Agreement constitutes and
constitutes the valid and binding obligations of Seller enforceable
against it in accordance with its terms.
(c) Each of HOS and FIE is a limited liability company duly
organized, validly existing and in good standing under the laws
of the State of Colorado and each has all necessary company
powers to own its respective properties and operate its
respective businesses as now owned and conducted by each of them.
Neither of HOS and FIE is qualified as a foreign company in any
state, although both have applied for qualification in the State
of New Jersey.
2.2. Title to Membership Interests. Seller is the owner,
beneficially and of record, of the Membership Interests, and
holds each Membership Interest free and clear of all liens,
encumbrances, security agreements, equities, options, claims,
charges and restrictions. The Membership Interests are duly
authorized, validly issued and all capital contributions required
to have been made to date with respect thereto have been made.
The delivery of the assignments as set forth in Section 1.3(a)(i)
at the Closing will transfer to Buyer good and valid title to the
Membership Interests, free of all liens. There are no documents
or agreements to which Seller is a party or which otherwise are
binding on Seller that affects its rights or obligations with
respect to each of the Membership Interests, other than the
rights and obligations contained in the operating agreement of
each of HOS and FIE.
2.3. Subsidiaries; Investments. On the Closing Date, neither
HOS nor FIE will (i) own, directly or indirectly, any interest or
investment (whether equity or debt) in any corporation,
partnership, business, trust or other entity other than as set
forth in Schedule 2.3; or (ii) be a party to, nor shall the
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business, assets, rights, or property of either HOS or FIE be
subject to, any claim, liability, mortgage, pledge, deed of
trust, or lease not incurred in the ordinary course of their
respective businesses.
2.4. Title to Assets. On the Closing Date, FIE will have good
and marketable title to the Transferred Domain Registrations (as
defined in Section 4.3(b)), free and clear of all liens,
covenants and restrictions other than those imposed by the
registrars of such domain names. HOS and FIE each has good and
marketable title to all of its respective assets, free and clear
of all liens and encumbrances. Among those assets, which assets
shall be transferred to Buyer at the Closing are:
2 laptop computers
1 fax machine
1 laptop with GroupMail and ACT software included
1 Hewlett Packard color printer
2 LCD projectors
The HOS and FIE complete financial community database in an
ACT format
The HOS and FIE complete public company database on
Salesforce
2.5. Accounts Receivable. All accounts receivable of each, HOS
and FIE have arisen from sales made in the ordinary course of
business consistent with past practice.
2.6. Compliance with Laws. Neither HOS nor FIE has received
notice of any violation of any judgment, applicable federal,
state or local statute, law or regulation affecting their
properties or operation of its business, and to the best of the
knowledge of Seller, there are no such violations.
2.7. Litigation. There is no pending, or to the best knowledge
of Seller, threatened, suit, action, arbitration or legal,
administrative or other proceeding, or governmental investigation
against or affecting HOS or FIE or any of their respective
business, assets, or financial condition.
2.8. No Conflicts. The execution and delivery by Seller of this
Agreement, the consummation of this transfer and the compliance
by Seller with the terms of this Agreement will not violate,
conflict with, result in a breach of or constitute a default (or
an event that, with notice or without notice or lapse of time, or
both would constitute a default) on the part of any of Seller,
HOS or FIE under (i) charter documents thereof or to the
knowledge of Seller (ii) any decree, judgment, order or
determination of any court, governmental agency or body having
jurisdiction over any of such entities; (iii) any law, rule, or
regulations applicable to any of such entities; or (iv) any
material agreement to which any of such entities is a party or by
which its assets are bound.
2.9. Consents. Except as set forth in Schedule 2.9, to the
knowledge of Seller no approvals or consents of any other persons
or Government Authority are necessary in connection with the
transactions contemplated by this Agreement.
2.10. HOS Financial Statements. The financial statements of
HOS as at October 31, 2007 attached hereto as Schedule 2.10 are
accurate in all material respects, and, to the knowledge of
Seller, fairly present, in all material respects, the financial
position and the results of operations of HOS as at the date and
for the period presented.
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2.11. FIE Financial Statements. The financial statements of
FIE as at October 31, 2007 attached hereto as Schedule 2.11 are
accurate in all material respects, and fairly present, in all
material respects, the financial position and the results of
operations of FIE as at the date and for the period presented
without regard to investments in investment securities to be
disposed of prior to the Closing.
2.12. Taxes. Each of HOS and FIE, has duly prepared and
filed all tax returns required to be filed on behalf of and for
the respective company. All such tax returns were correct and
complete in all material respects. All taxes owed by each of HOS
and FIE have been paid.
2.13. Employee Matters. As of the Closing Date, except for
Xxxx XxXxxxxx and Xxxxx Xxxxxxx, neither HOS nor FIE shall have
any employees.
2.14. Material Contracts. Schedule 2.14 sets forth a
complete and accurate list of all contracts to which HOS or FIE
is a party, or which have been entered into by an affiliate for
its benefit, and which are material to its business.
2.15. Brokers. All negotiations relative to this Agreement
have been carried on directly between Seller and buyer without
the intervention of any person on behalf of Seller in such manner
as to give rise to any valid claim by any Person against Buyer
for a finder's fee, brokerage commission or similar payment.
2.16. Investment Intent; Accredited Investor. Seller and
any designee to whom Seller causes any of Buyer's Shares to be
delivered: (i) will acquire the Buyer's Shares for its own
account for investment and not with a view to, or for sale in
connection with, any distribution thereof, except in compliance
with applicable state and federal securities laws, and (ii) is an
"Accredited Investor" within the meaning of that term pursuant to
Rule 501(a)(1) promulgated pursuant to the U.S. Securities Act of
1933, as amended (the "Securities Act").
2.17. Full Disclosure. None of the representations or
warranties made by Seller or made in any certificate, memorandum
or exhibit furnished or to be furnished by Seller or on Seller's
behalf, contains or will contain any untrue statement of a
material fact, or omits to state any material fact necessary to
make the statements made true when made.
3 BUYER'S REPRESENTATIONS AND WARRANTIES
As an inducement to Seller to enter into this Agreement,
upon which Seller has relied, and intends to rely, Buyer hereby
represents and warrants to Seller that:
3.1. Organizational Status. Buyer has all the requisite legal
power, capacity and authority to enter into and perform its
obligations under this Agreement. The execution and delivery by
Buyer of this Agreement has been duly authorized by all necessary
corporate action and no other corporate action is required on the
part of Buyer in order to authorize its execution, delivery and
performance of this Agreement. This Agreement constitutes and
constitutes the valid and binding obligations of Buyer
enforceable against it in accordance with its terms. No consent
or permit is required to be obtained by or with respect to Buyer
in connection with the execution, delivery and performance of
this Agreement.
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3.2. Buyer's Shares. Buyer has available out of its authorized
but unissued shares of common stock sufficient shares to effect
the issuance to Seller of the Buyer's Shares. Upon issuance, the
Buyer's Shares will be duly and validly issued, fully paid and
non-assessable and free from all taxes, liens and charges other
than restrictions upon transfer thereof imposed by the Securities
Act.
3.3. Brokers. All negotiations relative to this Agreement have
been carried on directly between Seller and Buyer without the
intervention of any person on behalf of Buyer in such manner as
to give rise to any valid claim by any person against Seller for
a finder's fee, brokerage commission or similar payment.
4 CERTAIN COVENANTS
4.1. Access to Information. Between the date of this Agreement
and the Closing Date, and upon reasonable advance notice received
from Buyer, Seller shall (a) afford Buyer and its representatives
full and free access, during regular business hours, to HOS' and
FIE's personnel, properties, premises, contracts, books and
records and other documents and data, such rights of access to be
exercised in a manner that does not unreasonably interfere with
the operations of such entities; (b) furnish Buyer and its
representatives with copies of all such contracts, books and
records and other existing documents and data as Buyer may
reasonably request and (c) otherwise cooperate and assist, to the
extent reasonably requested by Buyer and its Representatives,
with Buyer's investigation of the business, properties, assets
and financial condition related to HOS and FIE.
4.2. Operation of the Business of Seller. Between the date
of this Agreement and the Closing Date, Seller shall cause HOS and
FIE to conduct their respective businesses only in the ordinary
course of business; use their commercially reasonably efforts to
preserve intact their current business; and confer with Buyer
prior to implementing operational decisions of a material nature.
4.3. Actions Prior to Closing.
(a) The transactions contemplated by this Agreement do
not include any obligations or liabilities of any of Seller, HOS
or FIE of any kind or description, whether accrued, absolute,
matured, contingent or otherwise, that arise from or are
connected with any act, omission, event, condition or
circumstance that occurred or existed prior to the Closing except
(i) liabilities relating solely to operation to be conducted by
them after the Closing and (ii) credits, refunds and future
program participations as set forth in Schedule 4.3(a)(ii)
("Excluded Liabilities"). As of the Closing, each of HOS and FIE
shall be free of Excluded Liabilities and Seller shall have
caused HOS and FIE to have assigned all Excluded Liabilities,
including those enumerated in the liabilities section of their
respective balance sheets as of October 31, 2007 that have not
previously been paid in the ordinary course of business, to a
third party.
(b) At or prior to the Closing, Seller will cause all
right, title and interest in the domain names listed below,
including any top-level domain related to the list below, such as
..com; .org; .net, etc. (the "Transferred Domain Names"), as well
as the existing registrations thereof and benefit of the pending
registration terms thereof, to be transferred to FIE:
Xxxxxxxxxxxxxxxxxxx.xxx;
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Xxxxxxxxxxxxxxxxxxxxxxxx.xxx;
Xxxxxxxxxxxxxxxxxx.xxx;
Xxxxxxxxxxxxxxxxxxx.xxx;
Xxxxxxxxxxxxxxx.xxx;
Xxxxxxxxxxxxxxx.xxx;
Xxxxxxxxxxxxxxxxxxxx.xxx; and
Xxxxxxxxxxxxxxx.xxx.
(c) As promptly as feasible, Seller shall use its best
efforts to transfer to Buyer, HOS or FIE (as Buyer directs) all of
Seller's rights to use the following phone and fax numbers:
000.000.0000 (phone); 000.000.0000 (phone); 000.000.0000 (fax);
and 000.000.0000 (Xxxx XxXxxxxx'x phone).
(d) Seller shall cause the contract with the Doubletree
Metropolitan Hotel, New York described in Schedule 2.14 to be
assigned to FIE or re-issued in the name of FIE.
4.4. Transfer Restrictions. Seller hereby acknowledges and
agrees that the Buyer's Shares are being issued and sold in a
transaction not involving any public offering within the meaning
of the Securities Act and that, if in the future Seller or its
designee decides to resell, pledge or otherwise transfer any of
the Buyer's Shares, such Buyer's Shares may be resold, pledged or
transferred only (i) in accordance with restrictions required
pursuant to this Agreement and (ii) pursuant to an exemption from
registration under the Securities Act.
4.5. Liabilities After Closing. Buyer shall be solely
responsible for the payment of all liabilities incurred by either
HOS or FIE (i) prior to the Closing that relate solely to
operations to be conducted after the Closing and (ii) after the
Closing, including, but not limited to, all charges pertaining to
the phone and fax numbers transferred hereby by Seller, all
charges related to the service called "Formsite" used for online
RSVP and participation forms, and employee-related expenses
related to Xxxx XxXxxxxx and Xxxxx Xxxxxxx after the Closing.
The foregoing will not relieve Seller of liabilities for any
employment-related obligation regarding those individuals arising
from or connected with any act, omission, event, condition or
circumstance that occurs or exists prior to the Closing.
4.6. Actions After Closing. After the Closing;
(a) Buyer shall reimburse Seller promptly upon
presentation of satisfactory documentation of Seller's payment of
(i) a deposit against the contract price for the venue contracts
set forth in Schedule 2.14 and (ii) rent for the period following
the Closing Date pursuant to the lease set forth in Schedule 2.14;
(b) Seller shall deliver to Buyer any stock certificates,
distributions or proceeds received by Seller with respect to the
securities identified in Schedule 2.3; and
(c) Seller shall have the right to approve the federal
and state income tax returns of HOS and FIE with respect to the tax
year ending December 31, 2007 prior to the filing thereof.
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5 CONDITIONS TO CLOSING
5.1. Conditions to Buyer's Obligation to Close. Buyer's
obligation to purchase the Membership Interests and to take the
other actions required to be taken by Buyer at the Closing is
subject to the satisfaction, at or prior to the Closing, of each
of the following conditions (any of which may be waived by Buyer,
in whole or in part):
(a) All of Seller's representations and warranties in
this Agreement (considered collectively) and each of those
representations and warranties (considered individually) shall
have been accurate in all material respects as of the date when
made and shall be accurate in all material respects as of the
time of the Closing as if then made, without giving effect to any
supplement to the disclosure schedules of Seller.
(b) All of the covenants and obligations that Seller
is required to perform or to comply with pursuant to this Agreement
at or prior to the Closing (considered collectively), and each of
those covenants and obligations (considered individually), shall
have been duly performed and complied with in all material respects.
(c) Seller shall have caused the documents and
instruments required by Section 1.3(a) to be delivered (or tendered
subject only to Closing) to Buyer.
(d) Buyer shall have completed and be satisfied, in its
sole discretion, with its due diligence with respect to the Seller.
5.2. Conditions to Seller's Obligation to Close. Seller's
obligation to sell and transfer the Membership Interests and to
take the other actions required to be taken by Seller at the
Closing is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions (any of which may be
waived by Seller, in whole or in part):
(a) All of Buyer's representations and warranties in
this Agreement (considered collectively) and each of those
representations and warranties (considered individually) shall
have been accurate in all material respects when made and shall
be accurate in all material respects as of the time of the
Closing as if then made.
(b) All of the covenants and obligations that Buyer is
required to perform or to comply with pursuant to this Agreement
at or prior to the Closing (considered collectively), and each of
those covenants and obligations (considered individually), shall
have been performed and complied with in all material respects.
(c) Buyer shall have caused the documents and
instruments required by Section 1.3(b) to be delivered (or tendered
subject only to Closing) to Seller.
6 INDEMNITIES
6.1. Buyer's Indemnity. Buyer shall indemnify, defend and hold
harmless Seller against and in respect of claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorney
fees ("Claims"), that Seller may incur or suffer, which arise out of,
or result from (i) any misrepresentation or breach of any
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representation, warranty, covenant, undertaking or agreement made by
Buyer pursuant to this Agreement or in any schedule, certificate,
exhibit or other document furnished or to be furnished to Seller
under this Agreement.
6.2. Seller's Indemnities.
(a) Seller shall indemnify, defend and hold harmless
Buyer against and in respect of Claims that Buyer, HOS or FIE may
incur or suffer, which arise out of, or result from any
misrepresentation or breach of any representation, warranty,
covenant, undertaking or agreement made by Seller pursuant to this
Agreement or in any schedule, certificate, exhibit or other
instrument furnished or to be furnished to Buyer under this
Agreement.
(b) In addition, Seller shall indemnify, defend and hold
harmless Buyer against and in respect of Claims that Buyer, HOS
or FIE may incur or suffer which arise out of, or result from the
Excluded Liabilities.
6.3. Certain Limitations.
(a) The aggregate dollar amount recoverable as a result
of all Claims brought pursuant to the provisions of either Section
6.1 by Seller or Section 6.2(a) by Buyer, as the case may be, shall
be limited as follows: an indemnifying party shall be liable for
indemnification Claims asserted or brought under those Sections
only after the aggregate amount of all such indemnification Claims
against the indemnifying party exceeds Twenty Thousand Dollars
($20,000). If, and from and after the time that the aggregate
amount of such indemnification claims asserted or brought against
the indemnifying party exceeds Twenty Thousand Dollars ($20,000),
then the indemnified party shall have the right to receive the
aggregate amount of all such Claims in excess of that amount.
Neither party shall be responsible to indemnify the other party to
the extent that claims exceed One Million Dollars ($1,000,000), in
the aggregate.
(b) There shall be no limitations on the aggregate dollar
amount recoverable as a result of Claims with respect to Excluded
Liabilities brought pursuant to the provisions of Section 6.2(b)
by Seller, HOS or FIE.
6.4. Notice and Defense.
(a) Purchaser, on the one hand, or Seller, on the other
hand, shall promptly notify Seller or Purchaser, as the case may be,
of any claim, suit or demand which the notifying party believes will
entitle it to indemnification under this Article 6; provided,
however, that the failure to give such notice shall not affect
the liability of the indemnifying party unless the failure to
give such notice prejudices the indemnifying party.
(b) If the Claim for which indemnification is sought is
asserted by a third party, the indemnifying party shall have, at
its election, the right to compromise and defend any such matter
at its sole cost and expense, through counsel chosen by it but
subject to the reasonable approval of the indemnified party. If
the indemnifying party so undertakes to compromise and defend,
the indemnifying party shall notify the other party hereto of its
intention to do so. The indemnifying party must defend such
matter diligently or the indemnified party may assume control of
the defense of such matter. The indemnifying party shall not,
without the indemnified party's written consent, settle or
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compromise any claim or consent to an entry of a judgment that
does not include as an unconditional term thereof a release of
the indemnified party. If the indemnifying party, within a
reasonable time after notice of a Claim, fails to assume the
defense of the indemnified party, the indemnified party shall be
entitled to undertake the defense, compromise or settlement of
such Claim at the expense of and for the account and risk of the
indemnifying party, utilizing counsel of the indemnified party's
own choosing. Each party agrees in all cases to cooperate with
the defending party and its counsel in the compromise or defense
of any such Claims. The defending party and the non-defending
party or parties may be represented by the same counsel unless
such representation would be inappropriate due to conflicts of
interests between them. In addition, the non-defending party or
parties shall at all times be entitled to monitor such defense
through the appointment of counsel of its or their own choosing,
at its or their own cost and expense.
7 TERMINATION
7.1. Termination Events. By notice given prior to or at the
Closing, subject to Section 7.2, this Agreement may be terminated
as follows:
(a) by Buyer if a material breach of any provision of
this Agreement has been committed by Seller and such breach has
not been waived by Buyer;
(b) by Seller if a material breach of any provision of
this Agreement has been committed by Buyer and such breach has
not been waived by Seller;
(c) by Buyer if any condition in Section 5.1 has not
been satisfied as of the date specified for Closing in Section
1.3 or if satisfaction of such a condition by such date is or
becomes impossible (other than through the failure of Buyer to
comply with its obligations under this Agreement), and Buyer has
not waived such condition on or before such date;
(d) by Seller if any condition in Section 5.2 has not
been satisfied as of the date specified for Closing in Section
1.3 or if satisfaction of such a condition by such date is or
becomes impossible (other than through the failure of Seller to
comply with their obligations under this Agreement), and Seller
has not waived such condition on or before such date;
(e) by mutual consent of Buyer and Seller;
(f) by Buyer if the Closing has not occurred on or
before January 15, 2008 or such later date as the parties may
agree upon, unless the Buyer is in material breach of this
Agreement; or
(g) by Seller if the Closing has not occurred on or
before January 15, 2008 or such later date as the parties may
agree upon, unless the Seller is in material breach of this
Agreement.
7.2. Effect of Termination. If this Agreement is terminated
pursuant to Section 7.1, all obligations of the parties under
this Agreement will terminate, except that the obligations of the
parties in this Section 7.2 and Section 8 will survive.
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8 MISCELLANEOUS PROVISIONS.
8.1. Effect of Headings. The subject headings of the
paragraphs and subparagraphs are included for convenience only
and will not affect the construction or interpretation of any of
the provisions of this Agreement.
8.2. Word Usage. Unless the context clearly requires
otherwise: (a) plural and singular number will each be considered
to include the other; (b) the masculine, feminine and neuter
genders will each be considered to include the others; (c) "shall",
"will", "must", "agree" and "covenants" are each mandatory;
(d) "may" is permissive; (e) "or" is not exclusive; and
(f) "includes" and "including" are not limiting.
8.3. Entire Agreement; Modification and Waiver. When signed
by both parties, this Agreement and the ancillary documents and
agreements referred to in this Agreement constitute the entire
agreement between the parties pertaining to the subject matter
contained in it and supersedes all prior and contemporaneous
agreements, representations and understandings of the parties
and/or their representatives. No supplement, modification or
amendment to this Agreement will be binding unless executed in
writing by all parties. No waiver of any of the provisions of
this Agreement will constitute a waiver of any other provision,
whether or not similar, nor will any waiver constitute a
continuing waiver. No waiver will be binding unless executed in
writing by the party making the waiver.
8.4. Counterparts. This Agreement may be executed
simultaneously or in one or more counterparts, each of which will
be deemed an original, but all of which together will constitute
one and the same Agreement. Signatures to this Agreement may be
evidenced by facsimile.
8.5. No Third Party Beneficiaries. Nothing in this
Agreement, whether expressed or implied, shall give or be
construed to confer any legal or equitable rights hereunder to
any person other than the parties hereto and their respective
successors and assigns. Nothing in this Agreement is intended
to relieve or discharge the obligation or liability of any third
persons to any party to this Agreement. No provision in this
Agreement gives any third persons any right of subrogation or
action against any party to this Agreement.
8.6. Assignment. This Agreement and the rights and
obligations hereunder shall not be assignable, transferable or
delegable by Buyer or Seller (other than by operation of law in
connection with a merger or consolidation of Buyer or through a
sale of substantially all of the assets of Buyer, provided that
the surviving entity or the buyer of the assets has agreed to be
bound by the terms of this Agreement) without the prior written
consent of the other party hereto. Any attempted assignment in
violation of this Section 8.6 shall be null and void.
8.7. Arbitration. If any dispute arises between the parties
under this Agreement, the parties shall first attempt to resolve
the dispute by good faith negotiation between the chief executive
officers of Buyer and Seller. If a resolution is not achieved by
negotiation, such dispute shall be submitted to arbitration under
the commercial arbitration rules of the American Arbitration
Association ("AAA"). The arbitral panel shall consist of one
arbitrator selected by a procedure mutually agreeable to the
parties hereto. Failing such agreement within thirty days after
filing the demand for arbitration, the arbitrator shall be
appointed by the AAA. All arbitration proceedings hereunder
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shall take place in Denver, Colorado, U.S.A. In no event will
the arbitral panel have the power to include any consequential
damages in the arbitration award. The award of the arbitral
panel shall be final and judgment upon which award may be entered
by the prevailing party in any court having jurisdiction thereof
or application may be made by such party to any such court for
judicial acceptance of such award and an order of enforcement.
The fee and expenses of the arbitral panel shall be shared
equally between the parties, with the further understanding that
the non-prevailing party shall fully reimburse the prevailing
party for the latter's reasonable cost, expenses and attorney
fees incurred.
8.8. Nature and Survival of Warranties and Obligations.
Notwithstanding any right of Buyer (whether or not exercised) to
investigate the affairs of HOS and FIE or the right of either
party (whether or not exercised) to investigate the accuracy of
the representations and warranties of the other party contained
in this Agreement, Seller and Buyer have the right to rely fully
upon the representations, warranties, covenants and agreements of
the other contained in this Agreement. The representations,
warranties, covenants and agreements of Seller and Purchaser
contained in this Agreement will survive the Closing (a)
indefinitely with respect to the representations and warranties
and the covenants and agreements contained in Sections 2.1(b),
2.2, 2.4, 3.1, 4.3(a), and 4.5, and Articles 6 and 8, and (b)
until December 31, 2010, except that any representation,
warranty, covenant or agreement that would otherwise terminate in
accordance with the foregoing will continue to survive if a
notice claiming indemnification has been timely given under
Article 6 on or prior to such termination date, until the related
claim for indemnification has been satisfied or otherwise
resolved as provided therein.
8.9. Specific Performance and Waiver of Recision Rights. Each
party's obligations under this Agreement are unique. If any party
should default in its obligations under this Agreement, the
parties acknowledge that it would be extremely impractical to
measure the resulting damages; accordingly, the non-defaulting
party or parties, in addition to any other available rights or
remedies, may xxx in equity for specific performance, in which
event, the parties each expressly waive the defense that a remedy
in damages will be adequate. Despite a breach or default by any
of the parties or any of their respective representations,
warranties, covenants or agreements under this Agreement, if the
agreement and sale contemplated by it is consummated at the
Closing, each of the parties waive any unilateral right that such
party may have to rescind this Agreement or the transaction
consummated by it; provided, however, that this waiver will not
affect any rights or remedies available to the parties under this
Agreement or under law.
8.10. Attorney Fees. If any arbitration or other legal
proceeding is brought for the enforcement of this Agreement
because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of
this Agreement, the successful or prevailing party or parties
will be entitled to recover reasonable attorney fees and other
costs incurred in that action or proceeding, in addition to any
other relief to which it or they may be entitled.
8.11. Notices. Unless otherwise specifically permitted by
this Agreement, all notices under this Agreement shall be in
writing and shall be delivered by personal service, federal
express or comparable overnight service or certified mail (if
such service is not available, then by first class mail), postage
prepaid, to such address as may be designated from time to time
by the relevant party, and which shall initially be:
11
If to Seller:
Xxxxxxxxx Capital, Inc.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
If to Buyer:
Nortia Capital Partners, Inc.
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Any notice sent by first class mail shall be deemed to have been
given three (3) days after the date on which it is mailed. All
other notices shall be deemed given when received. No objection
may be made to the manner of delivery of any notice actually
received in writing by an authorized agent of a party. Any party
may change its address for purposes of this paragraph by giving
the other parties written notice of the new address in the manner
set forth above.
8.12. Governing Law. This Agreement and the ancillary
documents executed together with this Agreement will (except to
the extent otherwise specifically provided in such documents) be
construed in accordance with and governed by the laws of the
State of Colorado, as applied to contracts that are executed and
performed entirely in Colorado.
8.13. Further Assurances. Seller, at any time after the
Closing Date, will execute, acknowledge, and deliver any further
deeds, assignments, conveyances, and other assurances, documents,
and instruments of transfer, reasonably requested by Buyer (and
will use its best efforts to cause third parties to do the same),
and will take any other action consistent with the terms of this
Agreement that may reasonably be requested by Buyer for the
purpose of consummating the transactions contemplated herein.
8.14. Severability. If any provision of this Agreement is
held invalid or unenforceable by any arbitrator or court of final
jurisdiction, it is the intent of the parties that all other
provisions of this Agreement be construed to remain fully valid,
enforceable and binding on the parties.
8.15. Expenses. Each party will pay all costs and expenses
incurred or to be incurred by it in negotiating and preparing
this Agreement and closing and carrying out the transactions
contemplated by this Agreement, including without limitation any
taxes incurred by it as a result of or arising out of such
transactions.
IN WITNESS WHEREOF, the parties to this Agreement have duly
executed it on the day and year first above written.
[Balance of Page Deliberately Left Blank -- Signature Page Follows]
12
Buyer:
Nortia Capital Partners, Inc.
By: /s/Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx, Chief Executive Officer
Seller:
Xxxxxxxxx Capital, Inc.
By: /s/Xxxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxx, President
Membership Interest Purchase Agreement Signature Page
EXHIBIT A
Form of Assignment of Membership Interests
(Attached)
EXECUTION VERSION
ASSIGNMENT
ASSIGNMENT, dated as of January 8, 2008, from Xxxxxxxxx
Capital, Inc., a Colorado corporation ("Seller"), to Nortia Capital
Partners, Inc., a Nevada corporation ("Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Membership Interest Purchase
Agreement, dated as of the date hereof (the "Purchase Agreement"), by
and between Seller and Purchaser, Seller has agreed to sell, assign,
transfer and convey to Purchaser all of Seller's right, title and
interest in and to membership interests in Herd on the Street LLC and
Xxxxxxxxx Investment Events LLC, which constitute all of the
outstanding membership interests in such entities (each a "Membership
Interest");
NOW THEREFORE, in consideration of the premises and agreements
herein contained, the parties hereto agree as follows:
1. For purposes hereof, terms used in this Agreement without
definition shall have the meanings ascribed thereto in the Purchase
Agreement.
2. For valuable consideration, receipt of which is hereby
acknowledged, and in accordance with the provisions of the Purchase
Agreement, Seller hereby sells, assigns, transfers, conveys, and
delivers, and causes to be sold, assigned, transferred, conveyed and
delivered to Purchaser, to have and to hold unto itself, its
successors and assigns, all of Seller's right, title and interest, to
the extent assignable, in and to the Membership Interests in Herd on
the Street LLC and Xxxxxxxxx Investment Events LLC and Purchaser
hereby accepts the sale, assignment, transfer, conveyance and delivery
thereof. Seller hereby appoints Purchaser as attorney to register the
transfer of ownership of the Membership Interests on the membership
registers of the respective companies.
3. Seller hereby covenants that, from time to time after the
delivery of this instrument, upon Purchaser's reasonable request and
without further consideration, but without expense to Seller, Seller
will execute, acknowledge and deliver, or will cause to be executed,
acknowledged and delivered, all such further assignments, transfers,
conveyances, powers of attorney and assurances as may be required more
effectively to convey and transfer to and vest in Purchaser, its
successors and assigns and to enable Purchaser to protect, its right,
title and interest in and to all of the Membership Interests.
4. Nothing in this instrument, express or implied, is intended
or shall be construed to confer upon or give to any person or
corporation other than Seller and Purchaser and their respective
successors and permitted assigns, any remedy or claim under, or by
reason of, this instrument or any term, covenant or condition hereof.
All the terms, covenants, conditions, promises and agreements
contained in this instrument shall bind and be for the sole and
exclusive benefit of Seller and Purchaser and their respective
successors and permitted assigns.
5. This Assignment may be executed in any number of
counterparts, each of which will be deemed and original, but all of
which together will constitute one and the same instrument. Each
party may execute this Assignment by signing any number of such
counterparts.
6. This Assignment shall be governed by and construed in
accordance with the laws of the State of Colorado, without giving
effect to principles or rules of conflicts of laws that would permit
or require the application of laws of a jurisdiction other than of
such state.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment as of the date first written above.
SELLER:
XXXXXXXXX CAPITAL, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
PURCHASER:
NORTIA CAPITAL PARTNERS, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
Assignment Signature Page
EXHIBIT B
Form of Restrictions on Transfer on Buyer's Shares
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND ARE "RESTRICTED
SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT.
THE SHARES MAY NOT BE SOLD OR OFFERED FOR SALE EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933 OR AN OPINION OF COUNSEL FOR THE CORPORATION THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE U.S SECURITIES
AND EXCHANGE COMMISION OF ANY STATE. THESE SECURITIES ARE BEING
OFFERED PURSUANT TO A SAFE HARBOR FROM REGISTRATION UNDER
REGULATION S PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). THE SECURITIES ARE "RESTRICTED" AND MAY NOT
BE OFFERED OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS (AS
SUCH TERM IS DEFINED IN REGULATION S PROMULGATED UNDER THE ACT)
UNLESS THE SECURITIES ARE REGISTERED UNDER THE ACT, PURSUANT TO
REGULATION S OR PURSUANT TO AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND THE SELLER WILL BE
PROVIDED WITH OPINION OF COUNSEL OR OTHER SUCH INFORMATION AS IT
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH EXEMPTIONS ARE
AVAILABLE. FURTHER HEDGING TRANSACTIONS INVOLVING THE SECURITIES
MAY NOT BE MADE EXCEPT IN COMPLIANCE WITH THE ACT
Schedule 2.3
Subsidiaries, Investments
50,000 shares Klegg Electronics (not adjusted for reverse stock split)
3,000 shares Siberian Energy
45,000 shares eFood Safety
10,000 shares Enable IPC
40,000 shares Liberty Star
140,000 shares Natural Harmony Foods
Stock Receivable:
Northern Oil & Gas 1,000
eDentify 20,000
Medlink 4,000
American Scientific 25,000
Sale proceeds Receivable:
Synergy Brands 3,000 shares
Schedule 2.6
Compliance with Laws
None
Schedule 2.9
Consents
None
Schedule 2.10
HOS Financial Statements at October 31, 2007
Herd on the Street, LLC
Balance Sheet
October 31, 2007
ASSETS
Current Assets
First Am. State Bk.-126110 $ 684.89
Due to FC (850.00)
------------
Total Current Assets (165.11)
Property and Equipment
------------
Total Property and Equipment 0.00
Other Assets
------------
Total Other Assets 0.00
------------
Total Assets $ (165.11)
============
LIABILITIES AND CAPITAL
Current Liabilities
Due to FC $ 2,700.00
Due to Global (12,100.00)
Due to Investor 820.00
Due to FIE 4,320.00
------------
Total Current Liabilities (4,260.00)
Long-Term Liabilities
------------
Total Long-Term Liabilities 0.00
------------
Total Liabilities (4,260.00)
Capital
Net Income 4,094.89
------------
Total Capital 4,094.89
------------
Total Liabilities & Capital $ (165.11)
============
Unaudited - For Management Purposes Only
Herd on the Street, LLC
Income Statement
For the Ten Months Ending October 31, 2007
Current Month Year to Date
Revenues
Revenue $ 0.00 0.00 $ 22,500.00 100.00
Event Revenue 0.00 0.00 0.00 0.00
RoadShows Revenue 0.00 0.00 0.00 0.00
Bull and Bear 0.00 0.00 0.00 0.00
Sponsorship-Revenue 0.00 0.00 0.00 0.00
Conferences 0.00 0.00 0.00 0.00
Las Vegas-Conference 0.00 0.00 0.00 0.00
Web Design 0.00 0.00 0.00 0.00
Other income 0.00 0.00 0.00 0.00
Interest income 0.00 0.00 0.00 0.00
Sale of security (stock) 0.00 0.00 0.00 0.00
---------- ----------
Total Revenues 0.00 0.00 22,500.00 100.00
---------- ----------
Cost of Sales
Venue costs - Events 0.00 0.00 0.00 0.00
Venue - Roadshows 0.00 0.00 0.00 0.00
Venue - Conference 0.00 0.00 0.00 0.00
Printing - Events 0.00 0.00 0.00 0.00
Printing - Roadshow 0.00 0.00 0.00 0.00
Email Campaign 900.00 0.00 7,900.00 35.11
Webcasting - events 0.00 0.00 0.00 0.00
Misc - events 0.00 0.00 0.00 0.00
Misc - Roadshow 0.00 0.00 0.00 0.00
Market Wire services 0.00 0.00 0.00 0.00
Fedex Costs 0.00 0.00 0.00 0.00
Salary - Events 0.00 0.00 0.00 0.00
Salary - Road Shows 0.00 0.00 0.00 0.00
Commissions 1,861.50 0.00 6,616.50 29.41
---------- ----------
Total Cost of Sales 2,761.50 0.00 14,516.50 64.52
---------- ----------
Gross Profit (2,761.50) 0.00 7,983.50 35.48
---------- ----------
Expenses
Bank Charges 10.03 0.00 273.61 1.22
Credit Cards Vender Fee 0.00 0.00 0.00 0.00
Contract Labor 0.00 0.00 0.00 0.00
Dues and Subscriptions fee 0.00 0.00 0.00 0.00
Insurance Expense - Office 0.00 0.00 0.00 0.00
Insurance - Health 0.00 0.00 0.00 0.00
Insurance - Auto 0.00 0.00 0.00 0.00
Accounting and Legal Fees 0.00 0.00 0.00 0.00
Licenses Expense 0.00 0.00 0.00 0.00
Gift Expense 0.00 0.00 0.00 0.00
Repair & Maintenance 0.00 0.00 0.00 0.00
Telephone Expense 0.00 0.00 0.00 0.00
Cable/Internet Expense 0.00 0.00 0.00 0.00
Gross Payroll/Admin - Office 0.00 0.00 0.00 0.00
Consulting Fee 0.00 0.00 1,305.00 5.80
Salaries 0.00 0.00 2,010.00 8.93
Payroll Taxes 0.00 0.00 0.00 0.00
Payroll Service Fee 0.00 0.00 0.00 0.00
Office Supplies Expense 0.00 0.00 0.00 0.00
Printing Expense 0.00 0.00 0.00 0.00
Rent Expense 0.00 0.00 0.00 0.00
Utilities Expense 0.00 0.00 0.00 0.00
Miscellaneous Exp. 0.00 0.00 0.00 0.00
Unaudited - For Management Purposes Only
Herd on the Street, LLC
Income Statement
For the Ten Months Ending October 31, 2007
Current Month Year to Date
Meals Expense - Travel 0.00 0.00 0.00 0.00
Meals Expense - Travel 0.00 0.00 0.00 0.00
Meal Expense - Travel 0.00 0.00 0.00 0.00
Hotel - Travel 0.00 0.00 0.00 0.00
Hotel - Travel 0.00 0.00 0.00 0.00
Hotel - Travel 0.00 0.00 0.00 0.00
Airfare - Travel 0.00 0.00 0.00 0.00
Airfare - Travel 0.00 0.00 0.00 0.00
Airfare - Travel 0.00 0.00 0.00 0.00
Ground Trans - Travel 0.00 0.00 0.00 0.00
Ground Trans - Travel 0.00 0.00 0.00 0.00
Ground Trans - Travel 0.00 0.00 0.00 0.00
Misc Expense - Travel 100.00 0.00 100.00 0.44
Misc. Expense - Travel 0.00 0.00 0.00 0.00
Misc. Expense - Travel 0.00 0.00 0.00 0.00
Communication Corp. Rein Exp 0.00 0.00 0.00 0.00
American Exp - Monthly Fees 0.00 0.00 0.00 0.00
Diners Club Exp - Monthly Fees 0.00 0.00 0.00 0.00
Depreciation 0.00 0.00 0.00 0.00
Interest Expense 0.00 0.00 0.00 0.00
---------- ----------
Total Expenses 110.03 0.00 3,888.61 17.28
---------- ----------
Net Income $ (2,871.53) 0.00 $ 4,094.89 18.20
========== ==========
Unaudited - For Management Purposes Only
Schedule 2.11
FIE Financial Statements at October 31, 2007
Xxxxxxxxx Investment Events, LLC
Balance Sheet
October 31, 2007
ASSETS
Current Assets
First Am. State Bk.-124693 $ 557.21
------------
Total Current Assets 557.21
Property and Equipment
------------
Total Property and Equipment 0.00
Other Assets
------------
Total Other Assets 0.00
------------
Total Assets $ 557.21
============
LIABILITIES AND CAPITAL
Current Liabilities
Due to FC $ 215,806.08
Due to Global (65,582.74
Due to Investor 24,270.00
Herd (4,820.00)
Due to FIE 4,724.63
Due to/from JOF 4,823.51
------------
Total Current Liabilities 179,221.48
Long-Term Liabilities
------------
Total Long-Term Liabilities 0.00
------------
Total Liabilities 179,221.48
Capital
Beginning Equity (169,662.16)
Net Income (9,002.11)
------------
Total Capital (178,664.27)
------------
Total Liabilities & Capital $ 557.21
============
Unaudited - For Management Purposes Only
Xxxxxxxxx Investment Events, LLC
Income Statement
For the Ten Months Ending October 31, 2007
Current Month Year to Date
Revenues
Revenue $ 0.00 0.00 $ 2,600.00 0.66
Event Revenue 0.00 0.00 116,850.00 29.56
RoadShows Revenue 0.00 0.00 9,500.00 2.40
Bull and Bear 0.00 0.00 0.00 0.00
Sponsorship-Revenue 2,500.00 6.27 2,500.00 0.63
Conferences 19,385.00 48.63 206,915.00 52.35
Wall Street Dinner 5,800.00 14.55 5,800.00 1.47
Las Vegas-Conference 12,180.00 30.55 51,084.65 12.92
Other income 0.00 0.00 0.00 0.00
Sale of security (stock) 0.00 0.00 0.00 0.00
---------- ----------
Total Revenues 39,865.00 100.00 395,249.65 100.00
---------- ----------
Cost of Sales
Venue costs 14,670.73 36.80 151,320.40 38.28
Printing 0.00 0.00 144.78 0.04
Misc expenses 0.00 0.00 3,200.00 0.81
Fedex Costs 0.00 0.00 1,297.73 0.33
Commission 0.00 0.00 38,186.99 9.66
Commission - Xxxx 1,000.00 2.51 4,000.00 1.01
---------- ----------
Total Cost of Sales 15,670.73 39.31 198,149.90 50.13
---------- ----------
Gross Profit 24,194.27 60.69 197,099.75 49.87
---------- ----------
Expenses
Bank Charges 22.39 0.06 738.21 0.19
Credit Cards Vender Fee 0.00 0.00 0.00 0.00
Dues and Subscriptions fee 0.00 0.00 0.00 0.00
Insurance Expense - Office 0.00 0.00 0.00 0.00
Insurance - Health 150.00 0.38 4,200.00 1.06
Accounting and Legal Fees 0.00 0.00 650.00 0.16
Licenses Expense 0.00 0.00 0.00 0.00
Gift Expense 0.00 0.00 0.00 0.00
Repair & Maintenance 0.00 0.00 230.04 0.06
Telephone Expense 0.00 0.00 455.80 0.12
Cable/Internet Expense 0.00 0.00 0.00 0.00
Gross Payroll/Admin-Office 0.00 0.00 0.00 0.00
Salaries 11,387.00 28.56 146,834.47 37.15
Payroll Taxes 0.00 0.00 0.00 0.00
Office Supplies Expense 0.00 0.00 0.00 0.00
Printing Expense 0.00 0.00 0.00 0.00
Rent Expense-NJ-Xxxx Exp. 900.00 2.26 9,000.00 2.28
Rent Expense-Denver 1/3 1,134.26 2.85 11,342.60 2.87
Utilities Expense 0.00 0.00 0.00 0.00
Miscellaneous Exp 0.00 0.00 2,000.00 0.51
Meals Expense - Travel 0.00 0.00 0.00 0.00
Hotel - Travel 0.00 0.00 3,889.93 0.98
Airfare - Travel 308.49 0.77 1,731.79 0.44
Airfare - Travel 0.00 0.00 0.00 0.00
Ground Trans - Travel 0.00 0.00 4,328.00 1.10
Misc Expense - Travel 0.00 0.00 0.00 0.00
T&E - General 0.00 0.00 300.00 0.08
Employees Adv Travel 120.00 0.30 2,111.16 0.53
Expense Xxxx Xxxx 1,100.00 2.76 15,065.00 3.81
American Exp - Monthly Fees 470.12 1.18 3,224.86 0.82
Diners Club Exp-Monthly Fees 0.00 0.00 0.00 0.00
Depreciation 0.00 0.00 300.00 0.00
Unaudited - For Management Purposes Only
Xxxxxxxxx Investment Events, LLC
Income Statement
For the Ten Months Ending October 31, 2007
Current Month Year to Date
Interest Expense 0.00 0.00 0.00 0.00
---------- ----------
Total Expenses 15,592.26 39.11 206,101.86 52.14
---------- ----------
Net Income $ 8,602.01 21.58 $ (9,002.11) (2.28)
========== ==========
Unaudited - For Management Purposes Only
Schedule 2.14
Material Contracts
Catering Contract, dated January 4, 0000, xxxxxxx Xxxxxxxxxx
Xxxxxxxxxxxx Xxxxx, Xxx Xxxx and Xxxxxxxxx Capital.
Contract, dated January 2, 2008, between Palms Casino Resort and
Xxxxxxxxx Investment Events.
Lease, dated October 31, 2006, between Xxxxxxxxxx Road
Properties, LLC and Xxxx XxXxxxxx with respect to office premises
located in Pennington, New Jersey.
Schedule 4.3(a)(ii)
Credits, Refunds and Future Participations
Companies who have credits or who are owed participation at
future events (not reflected in the financial statements):
Liberty Star One dinner, one conference
Endevco Two events (value $5900)
Disaboom $3000 of events
Lime Energy $3000 of events
