CONTRIBUTION AGREEMENT

EX-2.1

 

CONTRIBUTION AGREEMENT

dated as of

December 8, 2006

by and among

NEW ERA MARKETING, INC.

FEARLESS YACHTS, LLC,

and

THE MEMBERS OF FEARLESS YACHTS, LLC

CONTRIBUTION AGREEMENT

          THIS CONTRIBUTION AGREEMENT is entered into as of December 8, 2006 (the “Agreement”), by and among Fearless Yachts, LLC, a Missouri limited liability company (the “Company”), New Era Marketing, Inc., a Nevada corporation (“Parent”), Joseph MacKenzie, the holder of a majority of the shares of Common Stock (as hereinafter defined) of Parent (the “Majority Holder”) and the other signatories whose names appear on the signature page hereto (collectively, the “Members”). The Company, Parent and the Members are at times referred to herein individually as a “Party” and collectively as the “Parties.”

                    WHEREAS, the Company and Parent have determined that a reverse acquisition whereby the Company becomes the wholly owned subsidiary of Parent (the “Transaction”) is advisable and presents an opportunity for their respective companies to achieve long-term strategic and financial benefits;

                    WHEREAS, the Company and Parent have determined that the Transaction is to be effected by a transfer described in Section 1.1 hereof by the Members of all of their respective membership interests in the Company (the “Membership Interests”) to Parent in exchange for an aggregate of 27,000,000 shares (the “Contribution Shares”) of common stock, par value $0.001 per share, of Parent (the “Common Stock”), upon the terms and subject to the conditions set forth herein;

                    WHEREAS, the Company sold certain promissory notes (the “Company Notes”) in the aggregate principal face amount of $1,257,620.87 in a bridge financing commenced in April, 2006, and in connection therewith issued certain warrants (the “Company Warrants”) to purchase membership interests in the Company to the purchasers of the notes (the “Investors”);

                    WHEREAS, Parent has (a) determined that the Transaction is fair to, and in the best interests of, Parent and its shareholders (the “Shareholders”) and (b) approved and declared the advisability of entering into this Agreement;

                    WHEREAS, the obligations of each of Parent and the Company to effect the Transaction is conditioned as further described in Article IX hereof;

                    WHEREAS, the Parties are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by the provisions of Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”).

                    NOW, THEREFORE, in consideration of the premises and the mutual covenants, representations and warranties contained herein, the Parties hereto, intending to be legally bound, hereby agree as follows:

ARTICLE I
THE TRANSACTION

          Section 1.1           Transaction.

          (a)         At the closing of the Transaction (the “Closing”), and subject to the terms and conditions of this Agreement, Parent shall deliver to the Members 27,000,000 shares of Common Stock to be used as the Contribution Shares.

          (b)         At the Closing, and subject to the terms and conditions of this Agreement, the Members shall contribute their respective percentage of the Membership Interests of the Company to Parent in exchange for the Contribution Shares, each as set forth on Schedule 1.1(b) hereto.

          (c)         At the Closing, and subject to the terms and conditions of this Agreement, Parent shall issue to

the Investors the notes (the “Notes”) and warrants (the “Warrants”) attached hereto as Exhibit A and Exhibit B, respectively (collectively, the “Issuable Securities”), in the amounts set forth on Schedule 1.1(c) hereto and the Investors shall surrender to parent their Company Notes and Company Warrants. Each Investor and Member shall contemporaneously therewith furnish to Parent a representation as to “accredited investor” status within the meaning of Section 501 under Regulation D of the Securities Act with respect to each Investor.

          (d)         If any portion of the Contribution Shares or the Issuable Securities is to be delivered to any Person other than a Member or an Investor, it shall be a condition that such Person shall pay to Parent any transfer or other taxes (as defined in Section 10.13) required as a result of such delivery to other than a Member or Investor or establish to the satisfaction of Parent that such tax has been paid or is not payable.

          Section 1.2           Closing. The Closing of the Transaction and the other transactions contemplated by this Agreement shall take place at 11:00 a.m. on a date to be specified by the parties, which shall be the date of satisfaction (or waiver in accordance with this Agreement) of all of the conditions set forth in Article IX (the “Closing Date”), unless another time or date is agreed to by the parties hereto. The Closing shall be held at the offices of Hodgson Russ LLP, 60 East 42^nd Street, Floor 37, New York, New York 10165.

          Section 1.3           Restrictions On Resale. Neither the Contribution Shares nor the Issuable Securities will be registered under the Securities Act, or the securities laws of any state, and cannot be transferred, hypothecated, sold or otherwise disposed of until; (i) a registration statement with respect to such securities is declared effective under the Securities Act, or (ii) Parent receives an opinion of counsel for the stockholder, reasonably satisfactory to counsel for Parent, that an exemption from the registration requirements of the Securities Act is available. The certificates representing the Contribution Shares as well as the Issuable Securities shall contain a legend substantially as follows:

“THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR FEARLESS INTERNATIONAL, INC. RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO COUNSEL FOR FEARLESS INTERNATIONAL, INC. THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.”

           Section 1.4           Additional Closing Events. At the Closing, in addition to the deliveries referred to in Section 1.1 and elsewhere herein, each of the respective Parties hereto shall execute, acknowledge, and/or deliver, as applicable, or shall ensure to be executed, acknowledged, and delivered, as applicable, the following:

           (a)         In the case of the Company: (i) this Agreement duly executed by the Company and each of the Members; (ii) the security agreement dated the date hereof, by and among the Company and the agent for the Investors (the “Agent”), in the form of Exhibit C attached hereto duly executed by the Agent on behalf of the Investors (the “Security Agreement”); (iii) the Secretary’s certificate provided for in Section 8.2(c) hereof; (v) a certificate of an officer of the Company stating that the operating agreement of the Company is in full force and effect and has not been amended since the date hereof; (v) the Company Notes; (vi) the Company Warrants; and (vii) certificates evidencing the ownership by the Members of the Membership Interests or other evidence thereof reasonably satisfactory to Parent.

           (b)         In the case of the Parent: (i) this Agreement duly executed by the Parent; (ii) the Security Agreement duly executed by the Parent; (iii) the Notes duly executed by the Parent; (iv) the Warrants duly executed by the Parent; (v) share certificates evidencing the ownership by the Members of the Contribution Shares; (vi) the Articles of Incorporation and Bylaws of Parent certified by an officer of the Parent as being in force as of the Closing Date; and (vii) the Secretary’s certificate provided for in Section 8.1(d) hereof.

           (c)         Any and all certificates, together with such other items as may be reasonably requested by the Parties

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hereto and their respective legal counsel in order to effectuate or evidence the transactions contemplated hereby.

ARTICLE II
PARENT POST-CLOSING

          Section 2.1           Resignation of Directors and Officers. Effective as of the Closing, each of the Officers of Parent then in office shall resign.

          Section 2.2           Appointment of New Director and Officers. Effective as of the Closing, the Officers and Directors of the Company shall be those Persons listed on Schedule 2.2 hereof.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND THE MAJORITY HOLDER

          Parent and the Majority Holder hereby jointly and severally represent and warrant to the Company and the Members as of the date hereof and as of the Closing Date as follows:

          Section 3.1           Corporate Existence and Power. Parent is a corporation duly incorporated, validly existing and in good standing under the Nevada Revised Statutes (the “NRS”) and has all corporate powers and all governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted, except for those licenses, authorizations, permits, consents and approvals the absence of which would not, individually or in the aggregate, have a Material Adverse Effect (as defined in Section 10.13) on Parent. Parent is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect on Parent. Parent has heretofore delivered to the Company true and complete copies of its Articles of Incorporation and By-laws as currently in effect.

          Section 3.2           Authorization.

          (a)         The execution, delivery and performance by Parent of this Agreement, the performance of its obligations hereunder, and the consummation of the Transaction and the other transactions and developments contemplated hereby are within Parent=s corporate powers and have been duly authorized by all necessary corporate action, including the affirmative vote of the Majority Holder. This Agreement has been duly and validly executed and delivered by Parent and, assuming the due authorization, execution and delivery thereof by the Company and the Members, is a legal, valid and binding obligation of Parent, enforceable against it in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or other similar laws now or hereafter in effect relating to creditors= rights generally or by general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).

          (b)         Parent=s Board of Directors, at a meeting duly called and held, has (i) determined that this Agreement and the transactions contemplated hereby, including the Transaction, are fair to and in the best interests of the Shareholders and (ii) approved and adopted this Agreement and the transactions contemplated hereby, including the Transaction, which approval satisfies in full any applicable requirements of the NRS.

          Section 3.3           Governmental Authorization. The execution and delivery of this Agreement and the performance by Parent of its obligations under this Agreement relating to the Transaction and the transactions contemplated hereby require no action by or in respect of, or filing with, any governmental body, agency, official or authority other than (a) compliance with any applicable requirements of the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”), foreign or state securities laws or regulations of various states (“Blue Sky Laws”), (b) any filings required to be made by or in connection with the Security Agreement, and (c) any other filings, approvals or authorizations which, if not obtained, would not, individually or in the aggregate, have a Material Adverse Effect on Parent, or materially impair the ability of Parent to consummate the Transaction and the transactions contemplated by this Agreement.

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          Section 3.4           Non-contravention. The execution and delivery by Parent of this Agreement and the consummation by Parent of the transactions contemplated hereby and performance of its obligations under this Agreement do not and will not (a) violate Parent=s Articles of Incorporation or By-Laws, (b) assuming compliance with the matters referred to in Section 3.3, violate any applicable law, rule, regulation, judgment, injunction, order or decree, (c) require any consent or other action by any Person under, constitute a default under, result in a violation of, conflict with, or give rise to any right of termination, cancellation or acceleration of any right or obligation of Parent, or to a loss of any benefit to which Parent is entitled under any provision of any agreement or other instrument binding upon Parent, or any license, franchise, permit, certificate, approval or other similar authorization affecting, or relating in any way to, the assets or business of Parent or (d) result in the creation or imposition of any Lien on any asset of Parent, except, in the case of clauses (b), (c) and (d), for such matters as would not, individually or in the aggregate, have a Material Adverse Effect on Parent or materially impair the ability of Parent to consummate the transactions contemplated by this Agreement.

          Section 3.5           Capitalization.

          (a)         The authorized capital stock of Parent consists of 840,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, par value $0.001 per share (the “Preferred Stock”). The outstanding capitalization of Parent will at Closing consist of (i) 30,100,000 shares of Common Stock and (ii) no shares of Preferred Stock. The list of Shareholders attached hereto as Schedule 3.5 is the true and correct list of such Shareholders of record of outstanding shares of Common Stock on the date hereof and such list will remain true and correct through and including the Closing of this Agreement. All outstanding shares of capital stock of Parent have been duly authorized and validly issued and are fully paid and non-assessable and were not issued in violation of any preemptive rights or other preferential rights of subscription or purchase. There are no outstanding options, warrants, subscriptions, conversion or other rights, agreements or other commitments obligating Parent to issue any shares of its capital stock or any securities convertible into, exchangeable for or evidencing the right to subscribe for any shares of its capital stock.

          (b)         There are no outstanding obligations, contingent or otherwise, of Parent to redeem, purchase or otherwise acquire any capital stock or other securities of Parent.

          (c)         Parent is not in violation of and has not violated any federal or state securities laws in connection with any transaction relating to Parent and/or an Affiliate, including without limitation, the acquisition of any stock, business or assets of any third party or the issuance of any capital stock of Parent.

          (d)         There are not as of the date hereof, and there will not be at the Closing, any shareholder agreements, voting trusts or other agreements or understandings to which Parent is a party or by which it is bound relating to the voting of any shares of the capital stock of Parent.

          (e)         The shares of Common Stock to be issued as the Contribution Shares will be duly authorized for issuance and when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable and the issuance thereof will not be subject to any preemptive or other similar right.

          Section 3.6           Subsidiaries. Parent has no subsidiaries.

          Section 3.7           Parent Financial Statements; SEC Documents.

          (a)         Schedule 3.7 sets forth the Parent’s unaudited balance sheet as of September 30, 2006 (the “Parent Financial Statements Date”) and the related unaudited consolidated statements of operations, stockholders’ equity and cash flows for the six-month period then ended (collectively with the Parent Financial Statements, the “Parent Financials”). The Parent Financials are correct in all material respects and have been prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a basis consistent throughout the periods indicated and consistent with each other. The Parent Financials present fairly the financial condition and operating results of the Parent as of the dates and during the periods indicated therein, subject to normal year-end adjustments, which will not be

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material in amount or significance.

          (b)         Parent has furnished or made available and will continue to make available to the Company true and complete copies of all reports or registration statements filed by it with the U.S. Securities and Exchange Commission (the “SEC”) under the Exchange Act, all in the form so filed (all of the foregoing being collectively referred to as the “SEC Documents”). All SEC Documents were timely filed. As of their respective filing dates, the SEC Documents complied and will continue to comply in all material respects with the requirements of the Securities Act and the Exchange Act, and none of the SEC Documents contained or will contain any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading, except to the extent corrected by a subsequently filed document with the SEC. The financial statements of Parent, including the notes thereto, included in the SEC Documents (the “Parent Financial Statements”) comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with generally accepted accounting principles consistently applied (except as may be indicated in the notes thereto) and present fairly the financial position of Parent at the dates thereof and of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal, recurring audit adjustments). There has been no change in Parent accounting policies except as described in the notes to the Parent Financial Statements.

          (c)         Other than in connection with this Agreement, Parent has no current business activity whatsoever.

          (d)         Schedule 3.7 hereof lists, and Parent has delivered to the Company, copies of the documentation creating or governing, all securitization transactions and "off-balance sheet arrangements" (as defined in Item 303(c) of Regulation S-K of the SEC) effected by Parent since inception.

          Section 3.8           Absence of Certain Changes. Since the Parent Financial Statements Date, except as applicable to the Issuable Securities and the Security Agreement as disclosed to the Company, there has not been:

          (a)         any event, occurrence, development or state of circumstances or facts which would, individually or in the aggregate, have a Material Adverse Effect on Parent;

          (b)         any amendment of any material term of any outstanding security of Parent;

          (c)         any incurrence, assumption or guarantee by Parent of any indebtedness for borrowed money; (d) any creation or other incurrence by Parent of any Lien on any material asset; (e) the making of any loan, advance or capital contributions to or investment in any Person;

          (f)         any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or any asset(s) of Parent which would, individually or in the aggregate, have a Material Adverse Effect on Parent;

          (g)         any transaction or commitment made, or any contract or agreement entered into, by Parent or any relinquishment by Parent of any contract or other right;

          (h)         any change in any method of accounting, method of tax accounting, or accounting practice by Parent;

          (i)         any (i) grant of any severance or termination pay to any current or former director, officer or employee of Parent, (ii) increase in benefits payable under any existing severance or termination pay policies or employment agreements, (iii) entering into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any current or former director, officer or employee of Parent, (iv) establishment, adoption or amendment (except as required by applicable law) of any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or

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arrangement covering any current or former director, officer or employee of Parent, or (v) increase in compensation, bonus or other benefits payable or otherwise made available to any current or former director, officer or employee of Parent;

          (j)         any labor dispute, other than routine individual grievances; or

          (k)         any tax election or any settlement or compromise of any tax liability, in either case that is material to Parent.

          Section 3.9           Operations Since Parent Financial Statements Date. Since the Parent Financial Statements Date, except for as contemplated by this Agreement or in the Parent Financial Statements, Parent:

          (a)         has operated its businesses substantially as it was operated prior to that date and only in the ordinary course;

          (b)         has not declared or otherwise become liable with respect to any dividend or distribution of cash, assets or capital stock;

          (c)         has maintained or kept current its books, accounts, records, payroll, and filings in the usual and ordinary course of business, consistent in all material respects with past practice; and

          (d)         has not made any capital expenditure, commitment or investment other than in the ordinary course of business.

          Section 3.10      Compliance with Laws and Court Orders. Parent holds all permits, licenses, variances, exemptions, orders, franchises and approvals of all governmental entities necessary for the lawful conduct of its business (the “Parent Permits”), except where the failure so to hold would not have a Material Adverse Effect on Parent. Parent is in compliance with the terms of Parent Permits, except where the failure so to comply would not have a Material Adverse Effect on Parent. Parent is and has been in compliance with, and to the best knowledge of Parent, is not under investigation with respect to and has not been threatened to be charged with or given notice of any violation of, any applicable law, rule, regulation, judgment, injunction, order or decree, except for such matters as would not, individually or in the aggregate, have a Material Adverse Effect on Parent.

          Section 3.11      Litigation. There is no action, suit, investigation, audit or proceeding pending against, or to the best knowledge of Parent threatened against or affecting, Parent or any of its assets or properties before any court or arbitrator or any governmental body, agency or official.

          Section 3.12      Taxes. Parent has (i) duly filed with the appropriate taxing authorities all Tax Returns required to be filed by or with respect to its business, or are properly on extension and all such duly filed Tax Returns are true, correct and complete in all material respects, and (ii) paid in full or made adequate provisions for on its respective balance sheet (in accordance with GAAP) all Taxes shown to be due on such Tax Returns. There are no liens for Taxes upon the assets of Parent except for statutory liens for current Taxes not yet due and payable or which may thereafter be paid without penalty or are being contested in good faith. Parent has not received any notice of audit, is not undergoing any audit of its Tax Returns, or has received any notice of deficiency or assessment from any taxing authority with respect to liability for Taxes of its business which has not been fully paid or finally settled. There have been no waivers of statutes of limitations by Parent with respect to any Tax Returns. Parent has not filed a request with the Internal Revenue Service for changes in accounting methods within the last two years which change would effect the accounting for tax purposes, directly or indirectly, of its business. Parent has not executed an extension or waiver of any statute of limitations on the assessment or collection of any Taxes due (excluding such statutes that relate to years currently under examination by the Internal Revenue Service or other applicable taxing authorities) that is currently in effect. The provision for Taxes, if any, due or to become due for Parent for the period or periods through and including the date of the Parent Financial Statements that has been made and is reflected on such financial statements is sufficient to cover all such Taxes. Deferred Taxes, if any, of Parent included in the Parent Financial Statements have been computed in

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accordance with GAAP. Parent is not a party to any Tax allocation or Tax sharing agreement and Parent has not been a member of an affiliated group filing a consolidated federal income Tax Return or has any Liability for Taxes of any Person under Treasury Regulation Section 1.1502 -6 (or any similar provision of state, local or foreign Law) as a transferee or successor or by contract or otherwise. Parent has not made any payments, is not obligated to make any payments, and is not a party to any Contract that could obligate it to make any payments that would be disallowed as a deduction under Section 280G or 162(m) of the Internal Revenue Code.

          Section 3.13      Patents and Other Proprietary Rights. Parent does not have rights to use, whether through ownership, licensing or otherwise any patents, trademarks, service marks, trade names, copyrights, trade secrets or other proprietary rights and processes. Parent has not and does not violate or infringe any intellectual property right of any Person, and Parent has not received any communication alleging that it violates or infringes the intellectual property right of any other Person. Parent has not been sued for infringing any intellectual property right of another Person.

          Section 3.14      Anti-takeover Statutes. The Board of Directors of Parent has approved this Agreement and the transactions contemplated hereby, and neither the anti-takeover provisions of the NRS nor those of any other similar statute or regulation applies to the Transaction or any of the other transactions contemplated hereby.

          Section 3.15      Consents. The Parent is not subject to any law, ordinance, regulation, rule, order, judgment, injunction, decree, charter, bylaw, contract, commitment, lease, agreement, instrument or other restriction of any kind which would prevent the Parent from performing the terms of this Agreement or any of the transactions contemplated hereby without the consent of any third party, or which would require the consent of any third party for the consummation of this Agreement or any of the transactions contemplated hereby, or which would result in any penalty, forfeiture or other termination as a result of such consummation.

          Section 3.16      No Bankruptcy. There has not been filed any petition or application, nor any proceeding commenced by or against Parent with respect to any assets of Parent under any law, domestic or foreign, relating to bankruptcy, reorganization, fraudulent transfer, compromise, arrangements, insolvency, readjustment of debt or creditors' rights, and no assignment has been made by Parent for the benefit of creditors generally.

          Section 3.17      Acquisition of Equity Securities. There is no share option plan or other arrangement to acquire any equity securities of the Parent or securities convertible or exercisable into or exchangeable for, or which otherwise confer on the holder thereof any right to acquire, any such additional equity securities, as the case may be, except (i) as disclosed in this Agreement, or (ii) as provided on Schedule 3.17 hereto.

          Section 3.18      Guarantees. The Parent does not have any outstanding contracts or commitments guaranteeing (or indemnifying or making contribution to others for breaches in connection with) the payment or collection or the performance of the obligations of others, and it has not entered into any deficiency agreements, or issued any comfort letters, or otherwise granted any material financial assistance to any person, firm, corporation or other entity.

          Section 3.19      Books And Records. The books of account, minute books, stock record books and other records of Parent are complete and correct in all material respects and have been maintained in accordance with sound business practices, including the maintenance of an adequate system of internal controls. The minute books of Parent contain accurate and complete records of all meetings of, and corporate action taken by, the Shareholders, Parent’s board of directors and all committees thereof, and no meeting of the Shareholders, Parent’s board of directors or such committees has been held for which minutes have not been prepared and are not contained in such minute books. True and complete copies of all minute books and all stock record books of Parent have heretofore been delivered to the Company.

          Section 3.20      Title To Properties; Liens. Parent does not own any real property. All of the assets of Parent, except those disposed of in the ordinary course of business, are free and clear of all Liens, security interests, charges and encumbrances, except (i) as disclosed in the Parent Financial Statements, (ii) Liens for current taxes not yet due and payable, (iii) Liens in favor of any lessor with respect to capital lease obligations disclosed in Schedule 3.20 attached hereto, (iv) such imperfections of title or zoning restrictions, easements or encumbrances, if any, as do not

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materially interfere with the present use of such property or assets, and (vi) Liens which arise by operation of law.

          Section 3.21      Lease. Schedule 3.21 contains an accurate list of each Lease. A true and complete copy of each Lease has heretofore been delivered to the Company. Each Lease is valid, binding and enforceable in accordance with its terms and is in full force and effect. The leasehold estate created by each Lease is free and clear of all Liens. There are no existing defaults by Parent under any of the Leases. No event has occurred that (whether with or without notice, lapse of time or the happening or occurrence of any other event) would constitute a default under any Lease. Parent has not received any notice, and does not have any other reason to believe, that any lessor under any Lease will not consent (where such consent is necessary) to the consummation of the Transaction and other transactions contemplated hereby without requiring any modification of the rights or obligations of the lessee thereunder.

          Section 3.22      Issuance of Securities Exempt from Registration. In reliance upon the representations and warranties made to Parent herein, the issuance of the Contribution Shares to the Members and the Issuable Securities to the Investors will be exempt from registration under United States federal and state securities laws and regulations.

          Section 3.23      No Materially Adverse Undisclosed Facts. There is no fact known to the management of the Parent which has not previously been disclosed in writing to the Company which may in the reasonable expectation of the Parent’s management materially adversely affect the Parent or its respective assets, properties, business, prospects, operation or condition (financial or otherwise) and no state of facts is known to the management of the Parent that would operate to prevent the Parent from continuing to carry on its business in the manner in which carried on at the date hereof.

          Section 3.24      Assets and Liabilities at the Time of Closing. At the time of the Closing , Parent shall have no liabilities other than those incurred in connection with the Transaction payable to its transfer agent, attorneys and independent registered public accounting firm (the “Transaction Fees”), and no assets other than the cash in the Parent’s bank account in an amount that will not be material.

          Section 3.25      Interested Party Transactions. Except as set forth in Schedule 3.25(a) attached hereto, Parent is not indebted to any officer or director of Parent (except for compensation and reimbursement of expenses incurred in the ordinary course of business), and no such person is indebted to Parent, except as disclosed on Schedule 3.25(b) hereof.

           Section 3.26      Sarbanes-Oxley Compliance.

          (a)         Parent maintains accurate books and records reflecting its assets and liabilities and maintains proper and adequate internal accounting controls which provide assurance that (i) transactions are executed with management's authorization; (ii) transactions are recorded as necessary to permit preparation of the consolidated financial statements of parent to maintain accountability for Parent's consolidated assets; (iii) access to the Parent's assets is permitted only in accordance with management's authorization; (iv) the reporting of Parent's assets is compared with existing assets at regular intervals; and (v) accounts, notes and other receivables and inventory are recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis.

          (b)         Parent has not, since its inception, extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any director or executive officer (or equivalent thereof) of Parent. Schedule 3.27(d) identifies any loan or extension of credit maintained by Parent to which the second sentence of Section 13(k)(1) of the Exchange Act applies.

          Section 3.27      Listing and Maintenance Requirements. The Parent’s Common Stock is registered pursuant to Section 12(g) of the Exchange Act, and Parent has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has Parent received any notification that the Commission is contemplating terminating such registration. Parent has not, in the 12 months preceding the date hereof, received notice from any market on which the Common Stock is or has been listed or quoted (a “Trading Market”) to the effect that Parent is not in compliance with the listing or maintenance requirements of such Trading Market. Parent is, and has no reason to believe that it will not in the foreseeable future continue to be, in

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compliance with all such listing and maintenance requirements.

          Section 3.28          No Integrated Offering. Neither the Parent, nor any of its affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the issuance of the Issuable Securities or the Contribution Shares to be integrated with prior offerings by the Parent for purposes of the Securities Act or any applicable shareholder approval provisions, including, without limitation, under the rules and regulations of any Trading Market on which any of the securities of the Company are listed or designated.

          Section 3.29          No Disagreements with Accountants and Lawyers. There are no material disagreements of any kind presently existing, or reasonably anticipated by Parent to arise, between the accountants and lawyers presently employed by Parent and Parent is current with respect to any fees owed to its accountants and lawyers other than such fees as may be incurred in connection with the Transaction.

          Section 3.30          Disclosure. Neither this Agreement nor any exhibit or schedule hereto nor any statement, list or certificate delivered to the Company pursuant hereto or pursuant to any written request therefor, contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein, in light of the circumstances in which they were made, not misleading.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

          The Company represents and warrants to Parent, as of the date hereof and as of the Closing Date, as follows:

          Section 4.1           Corporate Existence and Power. The Company is a limited liability company duly organized and in good standing under the laws of the State of Missouri. The Company has all powers and governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted, except for those licenses, authorizations, permits, consents and approvals the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Company. At the Closing, the Company will be duly qualified to do business as a foreign corporation and will be in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect on the Company. The Company has heretofore delivered to Parent true and complete copies of the Articles of Formation and Operating Agreement as currently in effect.

          Section 4.2           Authorization. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby are within the powers of the Company, and have been duly authorized by all necessary action. This Agreement, assuming the due authorization, execution and delivery thereof by Parent, is a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or other similar laws now or hereafter in effect relating to creditors= rights generally or by general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).

          Section 4.3           Governmental Authorization. The execution and delivery of this Agreement and the performance by the Company of its obligations under this Agreement relating to the Transaction and the transactions contemplated hereby require no action by or in respect of, or filing with, any governmental body, agency, official or authority other than (a) compliance with any applicable requirements of the Securities Act, the Exchange Act, Blue Sky Laws or takeover laws, and (b) any other filings, approvals or authorizations which, if not obtained, would not, individually or in the aggregate, have a Material Adverse Effect on the Company or materially impair the ability of the Company to consummate the Transaction and the transactions contemplated by this Agreement.

          Section 4.4           Non-contravention. The execution and delivery by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby and performance of its obligations under this Agreement do not and will not (a) violate the Company=s Certificate of Formation or Operating Agreement, (b) assuming

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compliance with the matters referred to in Section 4.3, violate any applicable law, rule, regulation, judgment, injunction, order or decree, (c) require any consent or other action by any Person under, constitute a default under, result in a violation of, conflict with, or give rise to any right of termination, cancellation or acceleration of any right or obligation of the Company, or to a loss of any benefit to which the Company is entitled under any provision of any agreement or other instrument binding upon the Company, or any license, franchise, permit, certificate, approval or other similar authorization affecting, or relating in any way to, the assets or business of the Company or (d) result in the creation or imposition of any Lien on any asset of the Company, except, in the case of clauses (b), (c) and (d), for such matters as would not, individually or in the aggregate, have a Material Adverse Effect on the Company or materially impair the ability of the Company to consummate the transactions contemplated by this Agreement.

          Section 4.5           Subsidiaries. The Company has no subsidiaries.

          Section 4.6           Financial Statements. The Company Financial Statements (as defined in Section 8.2 below) were prepared in accordance with the books and records of the Company in all material respects and were prepared in accordance with GAAP applied on a consistent basis throughout the periods involved, except as otherwise noted therein. Each of the Company Financial Statements fairly presents the financial position of the Company as of the respective dates set forth therein or the results of operations and changes in financial position of the Company for the respective fiscal periods or as of the respective dates set forth therein.

          Section 4.7           Absence of Certain Changes. Since September 30, 2006 (the “Company Financial Statements Date”), except as applicable to the Company Warrants, the Company Notes and the Security Agreement as disclosed to Parent, there has not been:

          (a)         any event, occurrence, development or state of circumstances or facts which would, individually or in the aggregate, have a Material Adverse Effect on the Company;

          (b)         any amendment of any material term of any outstanding security of the Company;

          (c)         any incurrence, assumption or guarantee by the Company of any indebtedness for borrowed money;

          (d)         any creation or other incurrence by the Company of any Lien on any material asset;

          (e)         the making of any loan, advance or capital contributions to or investment in any Person;

          (f)         any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or any asset(s) of the Company which would, individually or in the aggregate, have a Material Adverse Effect on the Company;

          (g)         any transaction or commitment made, or any contract or agreement entered into, by the Company or any relinquishment by the Company of any contract or other right;

          (h)         any change in any method of accounting, method of tax accounting, or accounting practice by the Company;

          (i)         any (i) grant of any severance or termination pay to any current or former director, officer or employee of the Company, (ii) increase in benefits payable under any existing severance or termination pay policies or employment agreements, (iii) entering into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any current or former director, officer or employee of the Company, (iv) establishment, adoption or amendment (except as required by applicable law) of any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any current or former director, officer or employee of the Company, or (v) increase in compensation, bonus or other benefits payable or otherwise made available to any current or former director, officer or employee of the Company;

 

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          (j)         any labor dispute, other than routine individual grievances; or

          (k)         any tax election or any settlement or compromise of any tax liability, in either case that is material to the Company.

          Section 4.8           Operations Since Company Financial Statements Date. Since the Company Financial Statements Date, except for as contemplated by this Agreement or in the Company Financial Statements, the Company:

          (a)