SHARE EXCHANGE AGREEMENT

 

Exhibit 2.1

SHARE EXCHANGE AGREEMENT

by and among

BUSINESS DEVELOPMENT SOLUTIONS, INC.

 

 

TRIPMART HOLDING LIMITED

and

 

THE SHAREHOLDERS OF

TRIPMART HOLDING LIMITED
NAMED HEREIN

Dated as of March 30, 2009

 

 

 

TABLE OF CONTENTS

 

ARTICLE I EXCHANGE OF SHARES		1
1.1.	Share Exchange	1
1.2.	Closing	1
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS		2
2.1.	Good Title	2
2.2.	Organization	2
2.3.	Power and Authority	2
2.4.	No Conflicts	2
2.5.	Litigation	2
2.6.	No Finder's Fee	2
2.7.	Purchase Entirely for Own Account	2
2.8.	Available Information	3
2.9.	Non-Registration	3
2.10.	Restricted Securities	3
2.11.	Legends	3
2.12.	Additional Legend	3
2.13.	Accredited Investor	3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF TRIPMART		4
3.1.	Organization, Standing and Power	4
3.2.	TripMart Subsidiaries; Equity Interests	4
3.3.	Capital Structure	4
3.4.	Authority; Execution and Delivery; Enforceability	5
3.5.	No Conflicts; Consents	5
3.6.	Taxes	6
3.7.	Benefit Plans	6
3.8.	Litigation	6
3.9.	Compliance with Applicable Laws	7
3.10.	Brokers	7
3.11.	Contracts	7
3.12.	Title to Properties	7
3.13.	Intellectual Property	7
3.14.	Labor Matters	7
3.15.	Financial Statements; Liabilities	8
3.16.	Insurance	8
3.17.	Transactions with Affiliates and Employees	8
3.18.	Internal Accounting Controls	8
3.19.	Solvency	9
3.20.	Application of Takeover Protections	9
3.21.	Investment Company	9
3.22.	Absence of Certain Changes or Events	9
3.23.	Disclosure	10
3.24.	Information Supplied	10
3.25.	No Undisclosed Events, Liabilities, Developments or Circumstances	11
3.26.	Foreign Corrupt Practices	11
3.27.	No Additional Agreements	11
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BDS		11
4.1.	Organization, Standing and Power	11
4.2.	Subsidiaries; Equity Interests	11
4.3.	Capital Structure	12
4.4.	Authority; Execution and Delivery; Enforceability	12
4.5.	No Conflicts; Consents	12
4.6.	Taxes	13
4.7.	Absence of Changes in Benefit Plans	13
4.8.	ERISA Compliance; Excess Parachute Payments	14
4.9.	Litigation	14

 

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TABLE OF CONTENTS

 

4.10.	Compliance with Applicable Laws	14
4.11.	Contracts	14
4.12.	Title to Properties	14
4.13.	Intellectual Property	14
4.14.	Labor Matters	15
4.15.	SEC Documents; Undisclosed Liabilities	15
4.16.	Transactions With Affiliates and Employees	15
4.17.	Internal Accounting Controls	15
4.18.	Solvency	16
4.19.	Application of Takeover Protections	16
4.20.	Investment Company	16
4.21.	Absence of Certain Changes or Events	16
4.22.	Disclosure	17
4.23.	Information Supplied	18
4.24.	Certain Registration Matters	18
4.25.	Listing and Maintenance Requirements	18
4.26.	No Undisclosed Events, Liabilities, Developments or Circumstances	18
4.27.	Foreign Corrupt Practices	18
4.28.	No Additional Agreements	18
ARTICLE V CONDITIONS TO CLOSING		18
5.1.	BDS Conditions Precedent	18
5.2.	TripMart and Shareholder Conditions Precedent	20
ARTICLE VI COVENANTS		22
6.1.	Preparation of the 14f-1 Notice; Blue Sky Laws	22
6.2.	Public Announcements	22
6.3.	Fees and Expenses	22
6.4.	Continued Efforts	22
6.5.	Exclusivity	22
6.6.	Filing of 8-K	22
6.7.	Furnishing of Information	23
6.8.	Access	23
6.9.	Preservation of Business	23
ARTICLE VII MISCELLANEOUS		23
7.1.	Notices	23
7.2.	Amendments; Waivers; No Additional Consideration	24
7.3.	Replacement of Securities	24
7.4.	Remedies	24
7.5.	Independent Nature of Shareholders' Obligations and Rights	25
7.6.	Limitation of Liability	25
7.7.	Interpretation	25
7.8.	Severability	25
7.9.	Counterparts; Facsimile Execution	25
7.10.	Entire Agreement; Third Party Beneficiaries	26
7.11.	Governing Law	26
7.12.	Assignment	26

 

Annex A

Schedule of Share Issuance

Annex B

Definitions

 

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SHARE EXCHANGE AGREEMENT

 

This SHARE EXCHANGE AGREEMENT (this “ Agreement ”), dated as of March 30, 2009, is by and among Business Development Solutions, Inc., a Delaware corporation (“ BDS ”), TripMart Holding Limited, a British Virgin Islands company (“ TripMart ”), and the shareholders of TripMart identified on Annex A hereto (each, a “ Shareholder ” and together the “ Shareholders ”).  Each of the parties to this Agreement is individually referred to herein as a “ Party ” and collectively, as the “ Parties .”  Capitalized terms used herein that are not otherwise defined herein shall have the meanings ascribed to them in Annex B hereto.

BACKGROUND

 

A.

TripMart has 10,000 ordinary shares (the “ TripMart Stock ”) issued and outstanding, all of which are held by the Shareholders.  Each Shareholder is the record and beneficial owner of the number of shares of TripMart Stock set forth opposite such Shareholder's name on Annex A hereto.  Each Shareholder has agreed to transfer all of his, her or its (hereinafter “ its ”) shares of TripMart Stock in exchange for a number of newly issued shares of the Common Stock, $.00001 par value, of BDS (the “ BDS Stock ”) that will, in the aggregate, constitute 88.14% of the issued and outstanding capital stock of BDS on a fully diluted basis, as of and immediately after the Closing.  

B.

The number of shares of BDS Stock to be received by each Shareholder is listed opposite each such Shareholder's name on Annex A .  The aggregate number of shares of BDS Stock that is reflected on Annex A is referred to herein as the “ Shares .”  

C.

The exchange of TripMart Stock for BDS Stock is intended to constitute a reorganization within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended.

D.

The Board of Directors of each of BDS and TripMart has determined that it is desirable to effect this plan of reorganization and share exchange.

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and intending to be legally bound hereby, the Parties agree as follows:

ARTICLE I
Exchange of Shares

1.1.

Share Exchange .  

At the Closing, each Shareholder shall sell, transfer, convey, assign and deliver to BDS its TripMart Stock free and clear of all Liens, in exchange for the BDS Stock listed on Annex A opposite such Shareholder's name.    

1.2.

Closing .  

The closing (the “ Closing ”) of the transactions contemplated hereby (the “ Transactions ”) shall take place at the offices of Pillsbury Winthrop Shaw Pittman LLP in Washington, DC, commencing at 9:00 a.m. local time on the day of the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the Transactions (other than conditions with respect to actions that the respective parties will take at Closing) or such other date and time as the Parties may mutually determine (the “ Closing Date ”).

 

ARTICLE II
Representations and Warranties of the Shareholders

Each of the Shareholders hereby severally (and not jointly) represents and warrants to BDS with respect to itself, as follows:.

2.1.

Good Title .  

Each Shareholder is the record and beneficial owner, and has good title to its TripMart Stock, with the right and authority to sell and deliver such TripMart Stock.  Upon delivery of any certificate or certificates duly assigned, representing the same as herein contemplated and/or upon registering of BDS as the new owner of such TripMart Stock in the share register of TripMart, BDS will receive good title to such TripMart Stock, free and clear of all Liens.

2.2.

Organization .  

Each Shareholder that is an entity is duly organized and validly existing in its jurisdiction of organization.

2.3.

Power and Authority .  

Each Shareholder has the legal power, capacity and authority to execute and deliver this Agreement and each Transaction Document to be delivered by it hereunder and to perform its obligations hereunder and thereunder, and to consummate the Transactions.  All acts required to be taken by the Shareholder to enter into this Agreement, to deliver each Transaction Document to which it is a party and to carry out the Transactions have been properly taken.  This Agreement constitutes a legal, valid and binding obligation of the Shareholder, enforceable against the Shareholder in accordance with the terms hereof.

2.4.

No Conflicts .  

The execution and delivery of this Agreement by the Shareholder and the performance by the Shareholder of its obligations hereunder in accordance with the terms hereof: (a) will not require the consent of any third party or Governmental Entity under any Laws; (b) will not violate any Laws applicable to the Shareholder; and (c) will not violate or breach any contractual obligation to which the Shareholder is a party.

2.5.

Litigation .  

There is no pending proceeding against the Shareholder that involves the Shares or that challenges, or may have the effect of preventing, delaying or making illegal, or otherwise interfering with, any of the transactions contemplated by this Agreement and, to the knowledge of the Shareholder, no such proceeding has been threatened, and no event or circumstance exists that is reasonably likely to give rise to or serve as a basis for the commencement of any such proceeding.

2.6.

No Finder's Fee .  

The Shareholder has not created any obligation for any finder's, investment banker's or broker's fee in connection with the Transactions.

2.7.

Purchase Entirely for Own Account .  

The Shareholder is acquiring the BDS Stock proposed to be acquired hereunder, for investment for its own account, and not with a view to the resale or distribution of any part thereof, and the Shareholder has no present intention of selling or otherwise distributing the BDS Stock, except in compliance with applicable securities laws.

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2.8.

Available Information .  

The Shareholder has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in BDS.

2.9.

Non-Registration .  

The Shareholder understands that the BDS Stock has not been registered under the Securities Act and, if issued in accordance with the provisions of this Agreement, will be issued by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Shareholder's representations as expressed herein.  The non-registration shall have no prejudice with respect to any rights, interests, benefits and entitlements attached to the BDS Stock in accordance with BDS's charter documents or the laws of its jurisdiction of incorporation.

2.10.

Restricted Securities .

The Shareholder understands that the Shares are characterized as “restricted securities” under the Securities Act inasmuch as this Agreement contemplates that, if acquired by the Shareholder pursuant hereto, the Shares would be acquired in a transaction not involving a public offering. The issuance of the Shares hereunder is being effected in reliance upon an exemption from registration afforded under Section 4(2) of the Securities Act for transactions by an issuer not involving a public offering. The Shareholder further acknowledges that if the Shares are issued to the Shareholder in accordance with the provisions of this Agreement, such Shares may not be resold without registration under the Securities Act or the existence of an exemption therefrom.  The Shareholder represents that it is familiar with Rule 144 promulgated under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.

 

2.11.

Legends .  

 The Shareholder hereby agrees with BDS that the BDS Stock will bear the following legend or one that is substantially similar to the following legend:

THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION STATEMENT IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.

 

2.12.

Additional Legend .

Additionally, the BDS Stock will bear any legend required by the “blue sky” laws of any state to the extent such laws are applicable to the securities represented by the certificate so legended.

 

2.13.

Accredited Investor .  

The Shareholder is an “accredited Investor” within the meaning of Rule 501 under the Securities Act and the Shareholder was not organized for the specific purpose of acquiring the Shares.

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ARTICLE III
Representations and Warranties of TripMart

Subject to the exceptions set forth in the TripMart Disclosure Letter (regardless of whether or not the TripMart Disclosure Letter is referenced below with respect to any particular representation or warranty), TripMart represents and warrants to BDS as follows.

 

3.1.

Organization, Standing and Power .  

TripMart and each of its subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized and has the corporate power and authority and possesses all governmental franchises, licenses, permits, authorizations and approvals necessary to enable it to own, lease or otherwise hold its properties and assets and to conduct its businesses as presently conducted, other than such franchises, licenses, permits, authorizations and approvals the lack of which, individually or in the aggregate, has not had and would not reasonably be expected to have a material adverse effect on TripMart, a material adverse effect on the ability of TripMart to perform its obligations under this Agreement or on the ability of TripMart to consummate the Transactions (a “ TripMart Material Adverse Effect ”).  TripMart and each of its subsidiaries is duly qualified to do business in each jurisdiction where the nature of its business or its ownership or leasing of its properties make such qualification necessary except where the failure to so qualify would not reasonably be expected to have a TripMart Material Adverse Effect.  TripMart has delivered to BDS true and complete copies of the TripMart Constituent Instruments, and the comparable charter, organizational documents and other constituent instruments of each of its subsidiaries, in each case as amended through the date of this Agreement.

3.2.

TripMart Subsidiaries; Equity Interests .  

(a)

The TripMart Disclosure Letter lists each subsidiary of TripMart and its jurisdiction of organization.  All the outstanding shares of capital stock or equity investments of each subsidiary have been validly issued and are fully paid and nonassessable and are as of the date of this Agreement owned by TripMart or by another subsidiary of TripMart, free and clear of all Liens.

(b)

Except for its interests in its subsidiaries, TripMart does not, as of the date of this Agreement, own, directly or indirectly, any capital stock, membership interest, partnership interest, joint venture interest or other equity interest in any person.

3.3.

Capital Structure .  

The authorized capital stock of TripMart consists of 50,000 ordinary shares of which 10,000 shares are issued and outstanding.  Except as set forth above, no shares of capital stock or other voting securities of TripMart are issued, reserved for issuance or outstanding. TripMart is the sole record and beneficial owner of all of the issued and outstanding capital stock of each of its subsidiaries.  All outstanding shares of the capital stock of TripMart and each of its subsidiaries are duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the applicable corporate laws of the British Virgin Islands, the TripMart Constituent Instruments or any Contract to which TripMart is a party or otherwise bound.  There are not any bonds, debentures, notes or other indebtedness of TripMart or any of its subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of TripMart Stock or the capital stock of any of its subsidiaries may vote (“ Voting TripMart Debt ”).  As of the date of this Agreement, there are not any options, warrants, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to which TripMart or any of its subsidiaries is a party or by which any of them is bound (a) obligating TripMart or any of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, TripMart or any of its subsidiaries or any Voting TripMart Debt, (b) obligating TripMart or any of its subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, Contract, arrangement or undertaking or (c) that give any person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights occurring to holders of the capital stock of TripMart or of any of its subsidiaries.  As of the date of this Agreement, there are not any outstanding contractual obligations of TripMart to repurchase, redeem or otherwise acquire any shares of capital stock of TripMart.

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3.4.

Authority; Execution and Delivery; Enforceability .  

TripMart has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the Transactions.  The execution and delivery by TripMart of this Agreement and the consummation by TripMart of the Transactions have been duly authorized and approved by the Board of Directors of TripMart and no other corporate proceedings on the part of TripMart are necessary to authorize this Agreement and the Transactions.  When executed and delivered, this Agreement will be enforceable against TripMart in accordance with its terms.

3.5.

No Conflicts; Consents .  

(a)

The execution and delivery by TripMart of this Agreement does not, and the consummation of the Transactions and compliance with the terms hereof will not, conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a material benefit under, or result in the creation of any Lien upon any of the properties or assets of TripMart or any of its subsidiaries under, any provision of (i) the TripMart Constituent Instruments or the comparable charter or organizational documents of any of its subsidiaries, (ii) any Contract to which TripMart or any of its subsidiaries is a party or to which any of their respective properties or assets is subject or (iii) subject to the filings and other matters referred to in Section 3.5(b), any material judgment, order or decree or material Law applicable to TripMart or any of its subsidiaries or their respective properties or assets, other than, in the case of clauses (ii) and (iii) above, any such items that, individually or in the aggregate, have not had and would not reasonably be expected to have a TripMart Material Adverse Effect.

(b)

Except for required filings with the SEC and applicable “Blue Sky” or state securities commissions, no Consent of, or registration, declaration or filing with, or permit from, any Governmental Entity is required to be obtained or made by or with respect to TripMart or any of its subsidiaries in connection with the execution, delivery and performance of this Agreement or the consummation of the Transactions.

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3.6.

Taxes .  

(a)

Each of TripMart and each of its subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by it, and all such Tax Returns are true, complete and accurate, except to the extent any failure to file or any inaccuracies in any filed Tax Returns, individually or in the aggregate, have not had and would not reasonably be expected to have a TripMart Material Adverse Effect.  All Taxes shown to be due on such Tax Returns, or otherwise owed, have been timely paid, except to the extent that any failure to pay, individually or in the aggregate, has not had and would not reasonably be expected to have a TripMart Material Adverse Effect.  There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of TripMart know of no basis for any such claim.

(b)

The TripMart Financial Statements reflect an adequate reserve for all Taxes payable by TripMart and its subsidiaries (in addition to any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.  No deficiency with respect to any Taxes has been proposed, asserted or assessed against TripMart or any of its subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending, except to the extent any such deficiency or request for waiver, individually or in the aggregate, has not had and would not reasonably be expected to have a TripMart Material Adverse Effect.

3.7.

Benefit Plans .  

(a)

Except as set forth in the TripMart Disclosure Letter, TripMart does not have or maintain any collective bargaining agreement or any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other plan, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of TripMart or any of its subsidiaries (collectively, “ TripMart Benefit Plans ”).  Except as set forth in the TripMart Disclosure Letter, as of the date of this Agreement there are not any severance or termination agreements or arrangements between TripMart or any of its subsidiaries and any current or former employee, officer or director of TripMart or any of its subsidiaries, nor does TripMart or any of its subsidiaries have any general severance plan or policy.

(b)

Since December 31, 2008, there has not been any adoption or amendment in any material respect by TripMart or any of its subsidiaries of any TripMart Benefit Plan.

3.8.

Litigation .  

Except as set forth in the TripMart Disclosure Letter, there is no Action against or affecting TripMart or any of its subsidiaries or any of their respective properties which (a) adversely affects or challenges the legality, validity or enforceability of any of this Agreement or the Shares or (b) could, if there were an unfavorable decision, individually or in the aggregate, have or reasonably be expected to result in a TripMart Material Adverse Effect.  Neither TripMart nor any of its subsidiaries, nor any director or officer thereof (in his or her capacity as such), is or has been the subject of any Action involving a claim or violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty.

3.9.

Compliance with Applicable Laws .  

Except as set forth in the TripMart Disclosure Letter, TripMart and each of its subsidiaries have conducted their business and operations in compliance with all applicable Laws, including those relating to occupational health and safety and the environment, except for instances of noncompliance that, individually and in the aggregate, have not had and would not reasonably be expected to have a TripMart Material Adverse Effect.  TripMart has not received any written communication during the past two years from a Governmental Entity that alleges that TripMart is not in compliance in any material respect with any applicable Law.  This Section 3.9 does not relate to matters with respect to Taxes, which are the subject of Section 3.6.

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3.10.

Brokers .  

No broker, investment banker, financial advisor or other person is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the Transactions based upon arrangements made by or on behalf of TripMart or any of its subsidiaries.

3.11.

Contracts .  

Except as disclosed in the TripMart Disclosure Letter, there are no Contracts that are material to the business, properties, assets, condition (financial or otherwise), results of operations or prospects of TripMart and its subsidiaries taken as a whole.  Neither TripMart nor any of its subsidiaries is in violation of or in default under (nor does there exist any condition which upon the passage of time or the giving of notice would cause such a violation of or default under) any Contract to which it is a party or to which it or any of its properties or assets is subject, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to result in a TripMart Material Adverse Effect.

3.12.

Title to Properties .  

Except as set forth in the TripMart Disclosure Letter, neither TripMart nor any of its subsidiaries own any real property.  TripMart and each of its subsidiaries has sufficient title to, or valid leasehold interests in, all of its properties and assets used in the conduct of its businesses.  All such assets and properties, other than assets and properties in which TripMart or any of its subsidiaries has leasehold interests, are free and clear of all Liens other than those set forth in the TripMart Disclosure Letter and except for Liens that, in the aggregate, do not and will not materially interfere with the ability of TripMart and its subsidiaries to conduct business as currently conducted.

3.13.

Intellectual Property .  

TripMart and each of its subsidiaries own, or are validly licensed or otherwise have the right to use, all Intellectual Property Rights which are material to the conduct of the business of TripMart and its subsidiaries taken as a whole.  The TripMart Disclosure Letter sets forth a description of all Intellectual Property Rights which are material to the conduct of the business of TripMart and its subsidiaries taken as a whole.  There are no claims pending or, to the knowledge of TripMart, threatened that TripMart or any of its subsidiaries is infringing or otherwise adversely affecting the rights of any person with regard to any Intellectual Property Right.  To the knowledge of TripMart, no person is infringing the rights of TripMart or any of its subsidiaries with respect to any Intellectual Property Right.

3.14.

Labor Matters .  

There are no collective bargaining or other labor union agreements to which TripMart or any of its subsidiaries is a party or by which any of them is bound.  No material labor dispute exists or, to the knowledge of TripMart, is imminent with respect to any of the employees of TripMart.

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3.15.

Financial Statements; Liabilities .  

TripMart has delivered to BDS its audited consolidated financial statements for the fiscal years ended December 31, 2008 and 2007 (the “ TripMart Financial Statements ”).  The TripMart Financial Statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods indicated.  The TripMart Financial Statements fairly present in all material respects the financial condition and operating results of TripMart, as of the dates, and for the periods, indicated therein.  TripMart does not have any material liabilities or obligations, contingent or otherwise, other than (a) liabilities incurred in the ordinary course of business subsequent to December 31, 2008, and (b) obligations under contracts and commitments incurred in the ordinary course of business and not required under generally accepted accounting principles to be reflected in the TripMart Financial Statements, which, in both cases, individually and in the aggregate, would not be reasonably expected to result in a TripMart Material Adverse Effect.

3.16.

Insurance .  

TripMart and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which TripMart and its subsidiaries are engaged and in the geographic areas where they engage in such businesses.  TripMart has no reason to believe that it will not be able to renew its and its subsidiaries' existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business on terms consistent with market for TripMart's and such subsidiaries' respective lines of business.

3.17.

Transactions with Affiliates and Employees .  

Except as set forth in the TripMart Disclosure Letter and the TripMart Financial Statements, none of the officers or directors of TripMart and, to the knowledge of TripMart, none of the employees of TripMart is presently a party to any transaction with TripMart or any of its subsidiaries (other than for services as employees, officers and directors), including any Contract or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of TripMart, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner.

3.18.

Internal Accounting Controls .  

TripMart and its consolidated subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (a) transactions are executed in accordance with management's general or specific authorizations, (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (c) access to assets is permitted only in accordance with management's general or specific authorization, and (d) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.  TripMart has established disclosure controls and procedures for its company and designed such disclosure controls and procedures to ensure that material information relating to TripMart and its subsidiaries are made known to the officers by others within those entities.  The officers of TripMart have evaluated the effectiveness of TripMart's controls and procedures.  Since December 31, 2008, there have been no significant changes in TripMart's internal controls or, to TripMart's best knowledge, in other factors that could significantly affect TripMart's internal controls.

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3.19.

Solvency .  

Based on the financial condition of TripMart as of the Closing Date (and assuming that the Closing shall have occurred): (a) TripMart's fair saleable value of its assets exceeds the amount that will be required to be paid on or in respect of TripMart's existing debts and other liabilities (including known contingent liabilities) as they mature; (b) TripMart's assets do not constitute unreasonably small capital to carry on its business for the current fiscal year as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by TripMart, and projected capital requirements and capital availability thereof; and (c) the current cash flow of TripMart, together with the proceeds TripMart would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its debt when such amounts are required to be paid.  TripMart does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt).

3.20.

Application of Takeover Protections .  

TripMart has taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the TripMart Constituent Instruments or the laws of its  jurisdiction of organization that is or could become applicable to the Shareholders as a result of the Shareholders and TripMart fulfilling their obligations or exercising their rights under this Agreement, including, without limitation, the issuance of the Shares and the Shareholders' ownership of the Shares.

3.21.

Investment Company .  

TripMart is not, and is not an affiliate of, and immediately following the Closing will not have become, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

3.22.

Absence of Certain Changes or Events .  

Except as disclosed in the TripMart Financial Statements or the TripMart Disclosure Letter, from December 31, 2008 to the date of this Agreement, TripMart has conducted its business only in the ordinary course, and during such period there has not been:

(a)

any change in the assets, liabilities, financial condition or operating results of TripMart or any of its subsidiaries, except changes in the ordinary course of business that have not caused, in the aggregate, a TripMart Material Adverse Effect;

(b)

any damage, destruction or loss, whether or not covered by insurance, that would have a TripMart Material Adverse Effect;

(c)

any waiver or compromise by TripMart or any of its subsidiaries of a valuable right or of a material debt owed to it;

(d)

any satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by TripMart or any of its subsidiaries, except in the ordinary course of business and the satisfaction or discharge of which would not have a TripMart Material Adverse Effect;

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(e)

any material change to a material Contract by which TripMart or any of its subsidiaries or any of its respective assets is bound or subject;

(f)

any mortgage, pledge, transfer of a security interest in, or lien, created by TripMart or any of its subsidiaries, with respect to any of its material properties or assets, except liens for taxes not yet due or payable and liens that arise in the ordinary course of business and do not materially impair TripMart's or its subsidiaries' ownership or use of such property or assets;

(g)

any loans or guarantees made by TripMart or any of its subsidiaries to or for the benefit of its employees, officers or directors, or any members of their immediate families, or any loans or advances to any persons, corporations, business trusts, associations, companies, partnerships, limited liability companies, joint ventures and other entities, governments, agencies and political subdivision other than travel advances and other advances made in the ordinary course of its business;

(h)

any alteration of TripMart's method of accounting or the identity of its auditors;

(i)

any declaration or payment of dividend or distribution of cash or other property to the Shareholders or any purchase, redemption or agreements to purchase or redeem any TripMart Stock;

(j)

any issuance, sale, disposition or encumbrance of equity securities to any officer, director or affiliate, except pursuant to existing BDS stock option plans, or any change in their outstanding shares of capital stock or their capitalization, whether by reason of reclassification, recapitalization, stock split, combination, exchange or readjustment of shares, stock dividend or otherwise; or

(k)

any arrangement or commitment by TripMart or any of its subsidiaries to do any of the things described in this Section 3.22.

3.23.

Disclosure .  

TripMart confirms that neither it nor any person acting on its behalf has provided BDS or its agents or counsel with any information that it believes constitutes material, non-public information except insofar as the existence and terms of the proposed transactions hereunder may constitute such information and except for information that will be disclosed by BDS under a current report on Form 8-K filed within four business days after the Closing.  TripMart understands and confirms that BDS will rely on the foregoing representations and covenants in effecting transactions in securities of TripMart.  All disclosure provided to BDS regarding TripMart, its business and the Transactions, furnished by or on behalf of TripMart (including TripMart's representations and warranties set forth in this Agreement) is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.

3.24.

Information Supplied .  

None of the information supplied or to be supplied by TripMart for inclusion or incorporation by reference in the 14f-1 Notice, at the date it is first mailed to BDS's stockholders, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

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