UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

Current Report Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): July 1, 2021

 

BERGIO INTERNATIONAL, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

333-150029

27-1338257

(State or other jurisdiction

of incorporation)

(Commission File Number)

(I.R.S. Employer

Identification Number)

 

12 Daniel Road

East Fairfield, NJ 07004

(Address of principal executive offices) (Zip Code)

 

(973) 227-3230

Registrant’s telephone number, including area code:

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

[  ]Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) 

 

[  ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) 

 

[  ]Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) 

 

[  ]Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 40.13e-4(c)) 

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company [  ]

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [  ]

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

Trading Symbol(s)

Name of each exchange

on which registered

N/A

N/A

N/A

 


 


 

ITEM 1.01 - ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT

 

Agreement and Plan of Merger with GearBubble, Inc.

 

Pursuant to the terms of the May 6, 2021 Binding Letter of Intent, on July 1, 2021, Bergio International, Inc. (the “Company” or “BRGO”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with GearBubble, Inc., a Nevada corporation, (“Gear Bubble”), pursuant to which the shareholders of Gear Bubble (the “Equity Recipients”) agreed to sell 100% of the issued and outstanding shares of Gear Bubble to a recently formed wholly-owned subsidiary of the Company known as Gear Bubble Tech, Inc., a Wyoming corporation (the “Merger Sub”) in exchange for $3,162,000.00 (the “Cash Purchase Price”), which shall be paid as follows: a) $2,000,000.00 (which was paid in cash at Closing), b) $1,162,000.00 to be paid in 15 equal installments, and c) 49,000 of the 100,000 authorized shares of the Merger Sub, such that upon the Closing, 51% of the Merger Sub shall be owned by BRGO, and 49% of the Merger Sub shall be owned by the Gear Bubble Shareholders.

 

Under the terms of the Merger Agreement, the Gear Bubble Shareholders also have an opportunity to earn shares of BRGO common stock (“BRGO Incentive Common Shares”) if certain revenue and net income benchmarks are met by Merger Sub in the three years following the Closing of the Acquisition Agreement.

 

The Merger Agreement requires that following Closing of the Merger Agreement, Don Wilson, the President and CEO of Gear Bubble, and certain other key employees of Acquisition Sub shall receive employment agreements from Acquisition Sub with respect to their continued employment (the “Employment Agreements”) which will allow such key employees to participate in any employee stock ownership plan (“ESOP”) as offered to other BRGO subsidiary employees from time to time) to make certain that current personnel operating the business of Gear Bubble shall remain in place for all departments of the business of Gear Bubble post-Closing of the Acquisition.

 

At the Closing, the Equity Recipients will grant BRGO the right of first refusal (the “First Refusal Right”) to purchase the Transfer Shares for cash. The aggregate cash price for the Transfer Shares shall equal (i) the average of a minimum of two (2) and a maximum of three (3) independent valuations of Merger Sub, each as of the date when BRGO notifies the Equity Recipients of its intent to exercise the First Refusal Right, and each of which shall be undertaken by an independent valuation firm (to be identified by BRGO and mutually acceptable to the Equity Recipients), multiplied by (ii) 49%. If the First Refusal Right has not been exercised and the Equity Recipients have not otherwise had a liquidity event with respect to the Merger Sub prior to such date, each Equity Recipient will have a one-time put right (the “Put Right”) that, if elected by such Equity Recipient, would obligate BRGO to buy the Transfer Shares held by such Equity Recipient for cash at a price per Transfer Share based upon the independent fair market valuation per share as determined by an independent valuation firm (chosen in the same manner as set forth in the prior sentence). The Merger Agreement is attached hereto and incorporated herein as Exhibit 10.1.

 

Articles of Merger in Wyoming and Nevada

 

Pursuant to the Closing of the Merger Agreement, on July 9, 2021, the Company has today filed Articles of Merger in Nevada and Wyoming, under the terms of which, Gear Bubble is merging into Merger Sub, which are attached hereto and incorporated herein as Exhibit 10.2.

 

Employee Stock Ownership Plan

 

On July 9, 2021, the Company entered into the Bergio International, Inc. 2021 Stock Incentive Plan (the “ESOP”), under which the Company may award shares of BRGO Common Stock to employees of the Company and/or its Subsidiaries. The terms of the ESOP allow the Company’s Board of Directors discretion to award the Company’s Common Stock, in the form of options, stock appreciation rights, restricted stock awards, restricted stock units, and performance award shares, to such employees, upon meeting the criteria set forth therein, from time to time.

 

The foregoing descriptions of the Merger Agreement, Articles of Merger, and ESOP, herein are qualified by the terms of the full text of the Merger Agreement, and Articles of Merger attached hereto as Exhibit 10.1, Exhibit 10.2, and Exhibit 10.3 and the terms thereof are incorporated herein by reference.


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ITEM 3.02 - UNREGISTERED SALE OF SECURITIES

 

As partial consideration for the Closing of the Merger Agreement, on July 9, 2021, and per the terms thereof described in Item 1.01, the Company transferred 49,000 shares of Merger Sub Common Stock, representing 49% ownership of Merger Sub, to those shareholders of Gear Bubble, as identified in the Merger Agreement as Equity Recipients.

 

On July 9, 2021, and under the terms of Section 4.2 of the ESOP, the Company’s Board of Directors approved the issuance of 500,000,000 shares of the Company’s Common Stock to the Company’s CEO, Berge Abajian, as a Performance Award in recognition of the Closing of the Merger Agreement with Gear Bubble and with the Acquisition of the Assets used in the operation of Aphrodites. The award of such Performance Award shares is subject to the Company increasing its total authorized shares of Common Stock to 6,000,000,000 shares, which the Company plans to accomplish by filing Articles of Amendment to its Articles of Incorporation in Wyoming.

 

ITEM 7.01 - REGULATION FD DISCLOSURE.

 

On July 8, 2021, Bergio International, Inc., (the “Company”) issued a press release announcing that the Company acquired the assets and operations of GearBubble, Inc., a Nevada corporation (“Gear Bubble”), the terms of which are detailed in the Merger Agreement discussed in Item 1.01 above.

 

In accordance with General Instruction B.2 of Form 8-K, the information set forth herein and in Exhibit 99.1 hereto are deemed to be “furnished” and shall not be deemed to be “filed” for purposes of the Exchange Act. The information set forth in Item 7.01 of this Current Report on Form 8-K shall not be deemed an admission as to the materiality of any information in this Current Report on Form 8-K that is required to be disclosed solely to satisfy the requirements of Regulation FD.

 

Safe Harbor

 

This release may contain certain forward-looking statements regarding our prospective performance and strategies within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements, which are based on certain assumptions and describe future plans, strategies, and expectations of our company, are generally identified by use of words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “plan,” “project,” “seek,” “strive,” “try,” or future or conditional verbs such as “could,” “may,” “should,” “will,” “would,” or similar expressions. Our ability to predict results or the actual effects of our plans or strategies is inherently uncertain. Accordingly, actual results may differ materially from anticipated results. Some of the factors that could cause our actual results to differ from our expectations or beliefs include, without limitation, the risks discussed from time to time in our filings with the Securities and Exchange Commission. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this release. Except as required by applicable law or regulation, we undertake no obligation to update these forward-looking statements to reflect events or circumstances that occur after the date on which such statements were made.

 

 

ITEM 9.01 - FINANCIAL STATEMENTS AND EXHIBITS.

 

(d) Exhibits. The following exhibits are filed with this report:

 

Exhibit No.

Description

 

 

10.1

Agreement and Plan of Merger dated July 1, 2021.

10.2

Articles of Merger in Wyoming and Nevada dated July 9. 2021.

10.3

Employee Stock Ownership Plan dated July 9, 2021

99.1

Press Release dated July 8, 2021.

 


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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

BERGIO INTERNATIONAL, INC.

 

 

 

 

 

 

Date: July 9, 2021

By:

/s/ Berge Abajian

 

 

Name: Berge Abajian

 

 

Title: Chief Executive Officer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


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AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of July 1, 2021, is by and among: (i) Bergio International, Inc., a publicly traded Wyoming corporation (“Parent”); (ii) GEAR BUBBLE TECH, INC., a Wyoming corporation and a direct wholly owned subsidiary of Parent (“Merger Sub”); (iii) Gearbubble, Inc., a Nevada corporation (the “Company”); Donald Wilson (the “Shareholder”) and the Equity Recipients (as defined below).

RECITALS

WHEREAS, each of Parent, Merger Sub and the Company desire to effect the acquisition of the Company by Parent through the merger of the Company with and into Merger Sub (the “Merger”);

WHEREAS, Merger Sub will be the surviving corporation of the Merger (the “Surviving Corporation”), owned 49% by the Company Stockholders (as defined below) and 51% by Parent, all in accordance with the terms and subject to the conditions set forth in this Agreement and in accordance with the applicable provisions of Chapter 92A of the Nevada Revised Statutes (the “NRS”) and Article 11 of the Wyoming Business Corporation Act (the “WBCA”);

WHEREAS, the boards of directors of Merger Sub and the Company have each determined that the Merger is advisable and in the best interests of their respective companies and their respective stockholders or members, and have approved this Agreement and the Merger provided for in this Agreement upon the terms and subject to the conditions set forth in this Agreement;

WHEREAS, Parent and the Company intend that (a) the Merger qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations promulgated thereunder and (b) this Agreement be, and hereby be adopted as, a “plan of reorganization” within the meaning of Treasury Regulations Section 1.368-2(g);

WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger.

AGREEMENT

NOW THEREFORE, in consideration of the foregoing Recitals and the respective covenants and promises contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are acknowledged, the parties to this Agreement agree as follows:


DEFINITIONS

DefinitionsIn addition to as otherwise defined herein, for all purposes of and under this Agreement, the following capitalized terms shall have the following respective meanings:

Accredited Investor” has the meaning set forth in Rule 501 under the Securities Act.

Affiliate” has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Exchange Act.

Agreement” has the meaning set forth in the preamble.

Business Day” shall mean any day other than a Saturday, Sunday or a day on which commercial banks in New York, New York are required or authorized to be closed.

BRGO Incentive Common Share Fair Market Value” shall mean the average closing bid price per share of Parent Stock for the ten (10) consecutive trading day period ending on and including the date as of which such value is being determined, as adjusted to appropriately reflect any stock split, reverse stock split, stock dividend, reorganization, reclassification, combination, recapitalization or other like change with respect to Parent Stock occurring after the date hereof.




BRGO Incentive Equity Consideration” means the number of shares of BRGO Incentive Common Shares to which the Company Stockholders may become entitled in accordance with the terms and conditions of Section 2.5 of the Agreement.

Cash Consideration” means $3,162,000.00.

Code” means the Internal Revenue Code of 1986, as amended.

Company Class A Common Stock” means the Class A Common Stock, no par value, of the Company.

Company Class B Common Stock” means the Class B Common Stock, no par value, of the Company.

Company Common Stock” means the Class A Common Stock and the Class B Common Stock.

Company Stockholder” means any holder of Company Common Stock as of immediately prior to the Effective Time.

Conditions Precedent” means the conditions which must be satisfied or waived prior to closing set forth in Article X of this Agreement.

Contract” means any written or oral contract, lease, license, indenture, note, bond, arrangement, understanding, permit, concession, franchise, instrument or other agreement.

Current Liabilities” means all current liabilities of the Company incurred in the ordinary course of business (including, for the avoidance of doubt, all liabilities in respect of accrued vacation or paid time-off relating to employees of the Company, as well as the employer portion of any payroll or employment taxes arising therefrom, and tax liabilities accrued but not yet due and payable), but excluding any liabilities arising in connection with the transactions contemplated by this Agreement, capital lease obligations, long-term leases, the current portion of long-term liabilities, and any liabilities incurred other than in the ordinary course of business; provided, however, that Current Liabilities shall also include any Liabilities arising from or related to matters disclosed in the Disclosure Schedule or described directly in the Company’s representations and warranties in Article VI.

Dissenting Shares” means any shares of Company Common Stock held by a Company Stockholder who has properly demanded and not effectively withdrawn or lost such holder’s appraisal rights for such shares under the NRS or other similar rights (if any) under applicable Regulations.

Equity Recipients” means the persons listed on Schedule A hereto.

ESOP” means any employee stock ownership plan which is offered to employees of BRGO or any of its subsidiaries from time to time.

Exchange Act” means the Securities Exchange Act of 1934, as amended, or any similar federal statute, and the rules and regulations of the SEC thereunder, all as the same will then be in effect.

Final Installment Payments” means the final four payments of the Per Share Monthly Installment Cash Consideration payable pursuant to Section 2.4(b) on all shares of Company Common Stock issued and outstanding as of immediately prior to the Effective Time.

Governmental Authority” means any domestic or foreign, federal or national, state or provincial, municipal or local government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, political subdivision, commission, court, tribunal, official, arbitrator or arbitral body.

Indemnification Escrow Amount” means $309,866.68, which the Parties agree is the amount in cash equal to the total amount in cash payable in connection with the Final Installment Payments.

Intellectual Property” means all intellectual property owned by the Company and used in the operation of GEAR BUBBLE, including, without limitation, all U.S. and non-U.S. patents, patent applications,


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patent rights, trademarks, trademark applications, common law trademarks, Internet domain names, trade names, service marks, service mark applications, common law service marks, and the goodwill associated therewith, copyrights, in both published and unpublished works, whether registered or unregistered, copyright applications, franchises, licenses, know-how, trade secrets, technical data, designs, customer lists, confidential and proprietary information, processes and formulae, all computer software programs or applications, layouts, inventions, development tools and all documentation and media constituting, describing or relating to the above, including manuals, memoranda, and records, whether such intellectual property has been created, applied for or obtained anywhere throughout the world.

Knowledge” shall mean, except as otherwise explicitly provided herein, actual knowledge after reasonable investigation.  Parent shall be deemed to have “Knowledge” of a matter if any of its officers, directors or employees has Knowledge of such matter.

Law” means all U.S. or non-U.S. international, national, federal, provincial state or local treaty, law, rule, regulation, order, decree, judgment, code, ordinance, common law or custom with the force of law.

Legal Proceeding” means any pending or, to the Knowledge of the Company, threatened claim action, suit, inquiry, notice of violation, proceeding (including any partial proceeding such as a deposition) or investigation pending or threatened before or by any court, arbitrator, governmental or administrative agency, regulatory authority (federal, state, county, local or foreign), stock market, stock exchange or trading facility.

Liability” means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.

Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind, including, without limitation, any conditional sale or other title retention agreement, any lease in the nature thereof and the filing of or agreement to give any financing statement under the Uniform Commercial Code of any jurisdiction and including any lien or charge arising by Law.

Material Adverse Effect” means, with respect to any Person, a material adverse effect on the business, financial condition, operations, results of operations, assets, customer, supplier or employee relations of such Person.

Merger Consideration” means the Cash Consideration and the Transfer Shares.

Merger Sub Common Stock” means common stock, par value $0.0001 per share, of Merger Sub.

Order” means any order, judgment, ruling, injunction, assessment, award, decree or writ of any Governmental Authority or regulatory body.

Organizational Documents” means with respect to any entity, such entity’s Articles of Incorporation, Bylaws, Shareholder Agreement, or any other agreement governing the operations of such entity or the rights and obligations of its shareholders, members, partners, directors, officers, or managers.

Person” means all natural persons, corporations, business trusts, associations, companies, partnerships, limited liability companies, joint ventures, unincorporated associations, and other entities, governments, agencies and political subdivisions.

Parent Stock” means common stock of Parent.

Party” and “Parties” include all of the signers of this Agreement (Parent, Merger Sub, the Company, the Shareholder and the Equity Recipients) as set forth in the preamble.

Per Share BRGO Incentive Equity Consideration” means the quotient of (a) the BRGO Incentive Equity Consideration divided by (b) the total number of shares of Company Common Stock outstanding as of immediately prior to the Effective Time.

Per Share Cash Consideration” means the quotient of (a) the Cash Consideration divided by (b) the total number of shares of Company Common Stock outstanding as of immediately prior to the Effective Time.


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Per Share Closing Cash Consideration” means the quotient of (a) $2,000,000 divided by (b) the total number of shares of Company Common Stock outstanding as of immediately prior to the Effective Time.

Per Share Monthly Installment Cash Consideration” means the quotient of (a) $77,466.67 divided by (b) the total number of shares of Company Common Stock outstanding as of immediately prior to the Effective Time.

Person” means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, or other entity or governmental body.

Principal Market” means the OTC Markets.

Representative” means any Person’s shareholders, members, partners, directors, officers, managers, employees, contractors, and agents.

Requisite Vote” means the written consent or affirmative vote of a majority of the voting power of the stockholders.

SEC” means the U.S. Securities and Exchange Commission, or any successor agency thereto.

Securities Act” means the Securities Act of 1933, as amended, or any similar federal statute, and the rules and regulations of the Commission thereunder, all as the same will be in effect at the time.

Tax” or “Taxes” means all taxes, assessments, duties, levies or other charge imposed by any Governmental Authority of any kind whatsoever together with any interest, penalties, fines or additions thereto and any liability for payment of taxes whether as a result of (i) being a member of an affiliated, consolidated, combined, unitary or similar group for any period, (ii) any tax sharing, tax indemnity or tax allocation agreement or any other express or implied agreement to indemnify any Person, (iii) being liable for another Person’s taxes as a transferee or successor otherwise for any period, or (iv) operation of Law.

Tax Return” means all returns, declarations, reports, estimates, statements, forms and other documents filed with or supplied to or required to be provided to a Governmental Authority with respect to Taxes, including any schedule or attachment thereto and any amendment thereof.

Termination Date” means July 15, 2021.

Transaction Documents” means, collectively, this Agreement and all agreements, certificates, instruments and other documents to be executed and delivered in connection with the transactions contemplated by this Agreement.

U.S.” means the United States of America.


THE MERGER

The MergerIn accordance with the terms and subject to the conditions of this Agreement, at the Effective Time (as defined below), the Company and Merger Sub will consummate the Merger in accordance with the NRS and WBCA, under which (i) the Company will be merged with and into Merger Sub and the separate corporate existence of the Company will thereupon cease; (ii) Merger Sub will be the successor or surviving corporation in the Merger, governed by the laws of the State of Wyoming; (iii) the separate corporate existence of Merger Sub with all its rights, privileges, immunities, powers and franchises will continue unaffected by the Merger; and (iv) Merger Sub will succeed to and assume all the rights and obligations of the Company. The Merger will have the effects set forth in the applicable provisions of the NRS and WBCA.

Concurrently with the Closing on the Closing Date, the parties will file (i) Articles of Merger in the form attached hereto as Exhibit 1 (the “NV Articles of Merger”) with the Secretary of State of the State of Nevada in accordance with the relevant provisions of the NRS and (ii) Articles of Merger in the form attached hereto as Exhibit 2 (the “WY Articles of Merger” and, together with the NV Articles of Merger, the “Articles of Merger”) with the Secretary of State of the State of Wyoming in accordance with the relevant provisions of the


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WBCA. The Merger will become effective upon the filing of the Articles of Merger or at such later time as is agreed to by the parties hereto and specified in the Articles of Merger (the time at which the Merger becomes effective is referred to in this Agreement as the “Effective Time”).

At the Effective Time, and without any further action on the part of the Company or Merger Sub:

the articles of incorporation of Merger Sub will remain unchanged and, in such form, such articles of incorporation will be the articles of incorporation of the Surviving Corporation until later amended as provided therein or by applicable Law;

the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, will remain unchanged and, in such form, such bylaws will be the bylaws of the Surviving Corporation until later amended as provided therein or by applicable Law;

the directors and officers of Merger Sub immediately prior to the Effective Time will, from and after the Effective Time, be the directors and officers of the Surviving Corporation, until their respective successors will have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the Surviving Corporation’s articles of incorporation and bylaws; and

the Merger will, from and after the Effective Time, have all of the effects provided by the NRS and WBCA and applicable Law. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the properties, rights, privileges and powers of the Company and Merger Sub will vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and Merger Sub will become the debts, liabilities and duties of the Surviving Corporation.

Subsequent ActionsIf at any time after the Effective Time the Surviving Corporation will determine, in its sole discretion, or will be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation will be authorized to execute and deliver, in the name and on behalf of the Company or any of its subsidiaries, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of the Company or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

Conversion of Securities in the Merger

At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company or the holders of shares of Company Common Stock, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than any Dissenting Shares and Treasury Shares) held by a Company Stockholder will be cancelled and extinguished and will be converted automatically into the right to receive (i) the Per Share Cash Consideration (in such amounts and at such times as specified in this Agreement), plus (ii) the Per Share BRGO Incentive Equity Consideration (solely to the extent any BRGO Incentive Equity Consideration is issued to the Company Stockholders in accordance with this Agreement).

Each issued and outstanding share of Company Common Stock that is held in treasury of the Company or owned by the Company, Parent or Merger Sub (collectively, “Treasury Shares”) will automatically be cancelled and retired and will cease to exist, and no consideration will be delivered in exchange therefor.

Cash Consideration. The Per Share Cash Consideration shall be delivered by Parent to the Company Stockholders as follows: a) the Per Share Closing Cash Consideration shall be delivered within one Business Day of the Closing Date, b) a per share amount equal to the Per Share Monthly Installment Cash Consideration shall be delivered monthly, beginning 60 days following the Closing and continuing each month for the remaining 14 months. Notwithstanding the foregoing, any amounts that may be recovered by Parent or Merger Sub from the Indemnification Escrow Amount will be recovered by an offset against the Final Installment Payments.


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BRGO Incentive Equity Consideration. If the Surviving Corporation meets the revenue and net income benchmarks set forth on Schedule B herein (“Revenue and Net Income Benchmarks”), Parent will issue to the Company Stockholders the number of shares of Parent Stock (the “BRGO Incentive Common Shares”) specified on Schedule B. If the Surviving Corporation satisfies the Revenue and Net Income Benchmarks for Year One, Year Two, or Year Three (each as defined in Schedule A), then in each case Parent will issue the applicable number of shares of BRGO Incentive Common Shares within 30 days of the end of Year One, Year Two, or Year Three, respectively.  Parent and Merger Sub agree not to take any actions that would prevent the achievement by Surviving Corporation of the Revenue and Net Income Benchmarks.  For avoidance of doubt, the Merger Consideration is not subject to reduction, set off, refund or clawback, even if the Surviving Corporation does not meet the Revenue and Net Income Benchmarks set forth in on Schedule B herein.

No Further Ownership Rights in Company Common Stock. At and after the Effective Time, each holder of issued and outstanding shares of Company Common Stock immediately prior to the Effective Time will cease to have any rights as a holder of securities of the Company, except for the right of a Company Stockholder to the consideration payable in respect of such Company Common Stock under this Agreement. After the Effective Time, there will be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Company Common Stock outstanding immediately prior to the Effective Time.

Fractional SharesNotwithstanding any other provision hereof, no fractional shares of Parent Stock and no certificates or scrip therefor, or other evidence of ownership thereof, will be issued pursuant to this Agreement.  In lieu of any fractional shares to which any Company Stockholder would otherwise be entitled, the number of shares of Parent Stock to be issued shall be rounded down to the nearest whole share.  Any shares of Parent Stock comprising the BRGO Incentive Equity Consideration that are not allocated to the Company Stockholders by reason of the operation of this Section 2.7 shall be cancelled and returned to Parent.


SHARE TRANSFER

Share TransferWithin one Business Day of the Closing Date, subject to the satisfaction or waiver of all Conditions Precedent, Parent shall transfer 49,000 shares of the Merger Sub Common Stock (the “Transfer Shares”) to the Equity Recipients, in each case in the amounts set forth in Schedule A. Certificates will not be issued for the Transfer Shares, which shall be held in book entry format, and Parent’s filing of an 8-K evidencing the transfer of the Transfer Shares to the Equity Recipients, shall document such issuance or transfer, without the need of any further act by any Party. Notwithstanding the foregoing, at Parent’s request, the Company shall promptly execute one or more further agreements to the extent Parent reasonably deems such execution necessary or appropriate to effectuate the intent of this Agreement.

Ownership of Surviving CorporationAs a result of the conversions contemplated by Article II and the transfers contemplated by this Article III, the Surviving Corporation will be owned 49% by the Company Stockholders and 51% by Parent as of immediately following the Effective Time.


CLOSING

The ClosingThe transactions contemplated by this Agreement shall take place at a closing (the “Closing”) to be held remotely, by an exchange of counter-signed documents, at a time and date to be specified by the Parties, which shall be no later than second (2nd) Business Day following the satisfaction or waiver of the Conditions Precedent, or at such other location, date and time as Parent, Merger Sub and the Company shall mutually agree.  The date and time of the Closing is referred to herein as the “Closing Date.”


SHARE TRANSFER RESTRICTIONS

The Company, the Shareholder and the Equity Recipients acknowledge their understanding that the Transfer Shares and BRGO Incentive Common Shares, as applicable, shall be subject to the following restrictions affecting the transfer of the Transfer Shares and BRGO Incentive Common Shares (the “Transfer Restrictions”):

First Refusal Right; Put RightAt the Closing, the Equity Recipients will grant Parent the right of first refusal (the “First Refusal Right”) to purchase the Transfer Shares for cash. The aggregate cash price for the


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Transfer Shares shall equal (i) the average of a minimum of two (2) and a maximum of three (3) independent valuations of Merger Sub, each as of the date when Parent notifies the Equity Recipients of its intent to exercise the First Refusal Right, and each of which shall be undertaken by an independent valuation firm (to be identified by Parent and mutually acceptable to the Equity Recipients), multiplied by (ii) 49%.  If the First Refusal Right has not been exercised and the Equity Recipients have not otherwise had a liquidity event with respect to the Merger Sub prior to such date, each Equity Recipient will have a one-time put right (the “Put Right”) that, if elected by such Equity Recipient, would obligate Parent to buy the Transfer Shares held by such Equity Recipient for cash at a price per Transfer Share based upon the independent fair market valuation per share as determined by an independent valuation firm (chosen in the same manner as set forth in the prior sentence).

First Refusal Right Period; Put Right PeriodThe First Refusal Right may be exercised by Parent at any time during the period beginning on the date of the Closing and ending on the date which is eighteen (18) months following such date (“First Refusal Right Period”), and in the event of Parent’s exercise of the First Refusal Right, Parent shall pay the cost of such independent valuations therefor. The Put Right may be exercised by each Equity Recipient one time, beginning eighteen (18) months following the Closing and ending no later than the three (3) year anniversary of the Closing (“Put Right Period”), and in the event of the Equity Recipients’ exercise of  the Put Right, the exercising Equity Recipients  shall pay the cost of such independent valuations therefor.

Additional Transfer Restrictions During the First Refusal Right PeriodIn order to ensure that the Transfer Shares remain available for Parent’s purchase during the First Refusal Right Period, the Equity Recipients may not, without the prior knowledge and written consent of Parent, (a) sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase, make any short sale or otherwise dispose of or agree to dispose of, directly or indirectly to any party other than another Equity Recipient, the Transfer Shares held thereby, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act and the rules and regulations of the SEC promulgated thereunder with respect to any of the Transfer Shares, or (b) enter into any swap or other arrangement that transfers to anyone other than an Equity Recipient, in whole or in part, any of the economic benefits or consequences of ownership of the Transfer Shares held thereby, whether any such transaction is to be settled by delivery of such securities, or otherwise.

Legal RestrictionsThe Transfer Shares have not been registered under the Securities Act or any state securities law or “blue sky” law. Under no circumstances may any holder of Transfer Shares transfer the Transfer Shares in a manner inconsistent with the Securities Act, Securities Exchange Act, any state securities or “blue sky” Law, or other Law applicable to the Transfer Shares.

Stock LegendsThe Transfer Shares and the BRGO Incentive Common Shares will initially be held in book entry format, and evidenced by an 8-K filed by Parent, and as evidenced by the Equity Recipients being named in Parent’s subsequent SEC filings.  If certificates are later issued to the Equity Recipients in the future, any certificates representing the Transfer Shares or the BRGO Incentive Common Shares may bear any and all restrictive legends Parent or Merger Sub deems necessary to properly communicate to holders of the Transfer Shares or the BRGO Incentive Common Shares, the transfer restrictions described in this Agreement or required by any Law.


REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to Merger Sub as follows, except as set forth on the Disclosure Schedule attached as Exhibit 3 to this Agreement, which exceptions shall be deemed to be part of the representations and warranties made hereunder. The Disclosure Schedule shall be arranged in sections corresponding to the numbered and lettered sections and subsections contained in this Article VI, and the disclosures in any section or subsection of the Disclosure Schedule shall qualify other sections and subsections in this Article VI only to the extent it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other sections and subsections:

Organization and QualificationThe Company is a corporation  duly organized, validly existing and in good standing under the laws of the State of Nevada, has all requisite authority and power, licenses, authorizations, consents and approvals to carry on its business as presently conducted and to own, hold and operate its properties and assets as now owned, held and operated by it, and is duly qualified to do business and in good standing in each jurisdiction in which it conducts business.


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Authority

The Company has all requisite authority and power (corporate and other), licenses, authorizations, consents and approvals to enter into and deliver this Agreement and any of the other Transaction Documents, and to perform its obligations and consummate the transactions contemplated by this Agreement and the other Transaction Documents.  The Company’s execution and delivery of this Agreement and the other Transaction Documents and the Company’s performance of its obligations hereunder and thereunder and consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and the Shareholder.  The Company does not need to give any notice to, make any filing with, or obtain any authorization, consent or approval of any Person or Governmental Authority in order for the Parties to execute, deliver or perform this Agreement or the transactions contemplated hereby, except to the extent Company has already done so. This Agreement and the Transaction Documents to which the Company is a party have been duly and validly authorized and approved, executed and delivered by the Company.

Company’s Organizational Documents and Financial StatementsThe Company’s Organizational Documents are true and correct and represent the entirety of the agreements applicable to the Company’s corporate governance. The Shareholder constitutes the entirety of the Persons having an ownership interest, economic interest, voting interest or beneficial interest in Company, and no other Person has the right to acquire such an interest, whether through a warrant, option, convertible debenture or bond, Contract or otherwise. There are no 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 the Company is a party or by which it is bound obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional units or other equity interests in, or any security convertible or exercisable for or exchangeable into any unit of or other equity interest in, the Company, or 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 the Shareholder. There are no registration rights, proxies, voting trust agreements or other agreements or understandings with respect to any of the Shareholder’s rights or interests in the Company.  The Company’s income statements and statements of cash flows for the fiscal years ending December 31, 2018 and December 31, 2019, and December 31, 2020 will be prepared on a cash basis and such financial statements fairly represent Company’s financial condition at that time and the results of its operations for that period.

Binding ObligationsThis Agreement and each of the Transaction Documents constitute the legal, valid and binding obligations of the Company and the Shareholder enforceable against them in accordance with their respective terms, except as such enforcement is limited by bankruptcy, insolvency and other similar Laws affecting the enforcement of creditors rights generally.

No ConflictsThe execution and delivery of this Agreement and the other Transaction Documents, and the consummation and performance by the Company of the transactions contemplated this Agreement and the other Transaction Documents will not, directly or indirectly: (a) contravene, conflict with, or result in a violation of any provision of the Company’s Organizational Documents, (b) contravene, conflict with or result in a violation of any Law, Order, charge or other restriction or decree applicable to the Company or the Shareholder, or by which the Company or the Shareholder, or any of its respective assets and properties are bound or affected, (c) contravene, conflict with, result in any breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, impair the rights appurtenant to the material assets of the Company, or alter the obligations of any Person under, or create in any Person the right to terminate, amend, accelerate or cancel, or require any notice, report or other filing (whether with a Governmental Authority or any other Person) pursuant to, or result in the creation of a Lien on any of the material assets of the Company under, any note, bond, mortgage, indenture, Contract, license, permit, franchise or other instrument or obligation with respect to the material assets of the Company; or (d) contravene, conflict with, or result in a violation of, the terms or requirements of, or give any Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate or modify, any licenses, permits, authorizations, approvals, franchises or other rights with respect to the material assets of the Company.

Required VoteThe board of directors of the Company has, before the execution of this Agreement, (a) unanimously adopted, approved and declared advisable this Agreement, (b) determined that the transactions contemplated by this Agreement are advisable, fair to and in the best interests of the Company and the Company Stockholders, (c) resolved to recommend and has recommended the approval and adoption of this Agreement, the Merger, the Transaction Documents and the other transactions contemplated by this Agreement and each such Transaction Document to the Company’s shareholders and (d) directed that this Agreement, the Merger, the Transaction Documents and the other transactions contemplated by this Agreement and each Transaction


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Document be submitted to the Company stockholders for approval. The Requisite Vote is the only vote, approval or other corporate action of the Company stockholders necessary for the Company to approve, authorize and adopt this Agreement, the Merger, the Transaction Documents and the other transactions contemplated by this Agreement and each such Transaction Document and to consummate the Merger and the other transactions contemplated by this Agreement and each Transaction Document.

SolvencyThe Company is not insolvent and is able to meet all of its payment obligations as they come due. The fair market value of the Company’s assets exceed the fair market value of its obligations, whether contingent or otherwise. As of the Effective Time, the Company will have no Liabilities (whether accrued, absolute, contingent or otherwise) except for Current Liabilities. The Company has not guaranteed or otherwise agreed to cause, insure or become liable for, and the Company has not pledged any of its assets to secure, the performance or payment of any obligation or other Liability of any other Person.

No Brokers or FindersNo agent, broker, investment banker, financial advisor or other firm or Person is or shall be entitled, as a result of any agreement, action or commitment of the Company or any of its Affiliates to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with any of the transactions contemplated by this Agreement.

Title to Acquired AssetsThe Company holds good and merchantable title to the assets of the Company, subject only to the Current Liabilities, and free and clear of all Liens other than (a) any restriction on transfer arising under applicable securities laws; (b) liens for Taxes not yet due and payable; (c) mechanics’, carriers’, workers’, repairers’ and similar Liens arising or incurred in the ordinary course of business that are not yet due and payable and which are not, individually or in the aggregate, material to the business of the Company, and (d) non-exclusive licenses of Intellectual Property granted in the ordinary course of business. On the Closing Date, the Surviving Corporation shall have, good and merchantable title to the assets of the Company, free and clear of all Liens other than Liens created or granted by Merger Sub.  Upon consummation of the transactions contemplated by this Agreement, Merger Sub will not be required to obtain any other asset or License or consent of any Person to use, alienate and encumber the assets of the Company as the Surviving Corporation, in its sole discretion, desires.

Intellectual PropertyWithout limiting the generality of the foregoing: (a) the Company is the sole owner of all Intellectual Property necessary to operate the business of the Company as presently conducted (the “Business”), and has the exclusive right to use, all patents, trademark registrations, trade secrets and copyrights that are part of the necessary to operate the Business; (b) no patents, trademarks or copyrights relating to the Business have been abandoned or cancelled, or are the subject of any invalidation, opposition or cancellation proceeding, and each is in full force and effect; (c)  the Company has not granted or licensed to any Person, any rights with respect to the Intellectual Property, other than non-exclusive licenses granted in the ordinary course of business; (d) the Company’s Intellectual Property is sufficient for the operation of the Business; (e) the Company’s Intellectual Property does not infringe, misappropriate, violate or dilute, and is not alleged to infringe, misappropriate, violate or dilute, any trademark, copyright, patent, moral right or other proprietary right of any Person, and the Company has no Knowledge of any pending or threatened Legal Proceeding with respect thereto; (f) the Company is not aware of any party infringing, misappropriating, or diluting the Company’s rights with respect to the Company’s Intellectual Property; (g) the Company has taken all action necessary to protect the Company’s Intellectual Property, other than where the failure to take such actions would not have a Material Adverse Effect. Notwithstanding the foregoing, certain third-parties have in the past and may in the future, in the ordinary course of business, without the authorization of the Company and in contravention of the GEAR BUBBLE terms of services, upload or post content to the GEAR BUBBLE platform which infringes, violates or dilutes the proprietary rights of certain other third parties (the “Infringing Content”). The Company may receive cease and desist letters or similar communications with respect to such occurrences, following which the Company will remove such Infringing Content.

OperationsUntil the Termination Date, the Company will not engage in any operations or enter into any Contract, other than in the ordinary course of business or as required to consummate the transactions contemplated by this Agreement.

Investment RepresentationsThe Shareholder:

will acquire their respective portion of the Transfer Shares and the BRGO Incentive Common Shares, for investment for their own accounts, subject to the Transfer Restrictions set forth in Article V, and not with a view to the resale or distribution of any part thereof, and the Shareholder has no present intention of


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selling or otherwise distributing such Transfer Shares or the BRGO Incentive Common Shares except as permitted by this Agreement, and in compliance with all Laws;

understands that their ownership of the Transfer Shares may or may not result in profits or distributions to the Shareholder;

has consulted with their tax and financial advisors, and understands the potential tax implications of acquiring a direct or indirect interest in the Transfer Shares;

understands that the Transfer Shares (i) are subject to the Transfer Restrictions, and may not be sold except as permitted by this Agreement, and applicable federal and state securities laws,  and (ii) are characterized as “restricted securities” under the Securities Act, acquired in a transaction not involving a registered offering in reliance upon exemptions from certain requirements of the Securities Act.  

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;

consents to the placement of a restrictive legend on any certificate or other document evidencing the Transfer Shares as permitted by Section 5.5;

has sufficient knowledge and experience in finance, securities, investments and other business matters to be able to protect such Person’s interests in connection with the transactions contemplated by this Agreement;

has consulted, to the extent that it has deemed necessary, with their tax, legal, accounting and financial advisors concerning the Transfer Shares, and can afford to bear such risks for an indefinite period of time, including, without limitation, the risk of losing its entire investment in the Transfer Shares;

has had access to the SEC Reports, has been furnished or has had access to all public information relating to Parent sufficient for such Person to evaluate the risks of investing in Parent and Merger Sub by acquiring an interest in the Transfer Shares; has been afforded the opportunity to ask questions of and receive answers concerning Parent and Merger Sub and the terms and conditions of this Agreement;

is not relying on any representations and warranties concerning Parent and Merger Sub or any officer, employee or agent of Parent and Merger Sub, other than those contained in this Agreement or the SEC Reports;

will not sell or otherwise transfer the Transfer Shares, except as permitted by this Agreement, and either (A) the transfer of such securities is registered under the Securities Act or (B) an exemption from registration of such securities is available;

understands and acknowledges that Parent and Merger Sub are under no obligation to register, or maintain the registration of the Transfer Shares under the Securities Act;

has confirmed that such Person’s address furnished on the signature page hereto is the principal residence if he is an individual or its principal business address if it is a corporation or other entity;

understands and acknowledges that the Transfer Shares have not been recommended by any federal or state securities commission or regulatory authority, that the foregoing authorities have not confirmed the accuracy or determined the adequacy of any information concerning Parent and Merger Sub that has been supplied to such Person

is not acquiring its interest the Transfer Shares in a transaction (or an element of a series of transactions) that is part of any plan or scheme to evade the registration provisions of the Securities Act.

DisclosureNo representation or warranty of the Company contained in this Agreement and no statement or disclosure made by or on behalf of the Company to Parent and Merger Sub pursuant to this Agreement or any other Transaction Document contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading.


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Continued AccuracyThe foregoing representations and warranty will be true and correct on the Closing Date.   The Company’s acceptance of the Transfer Shares shall constitute the Company’s confirmation, and certification by its manager, that the foregoing representations and warranties are true and correct as of the Closing Date.

RelianceThe Company and the Shareholder understand that the transfer of the Transfer Shares and the BRGO Incentive Common Shares is being made in reliance upon the truth and accuracy of the foregoing representations and warranties so that Merger Sub may determine the applicability and availability of various exemptions upon which Parent is relying in transferring the 49,000 shares of Merger Sub and in issuing the BRGO Incentive Common Shares.

SurvivalThe Company’s and the Shareholder’s representations, warranties and agreements shall survive the execution and delivery of this Agreement.


REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Parent and Merger Sub jointly each hereby represent and warrant to the Company as follows:

Organization and QualificationThe Merger Sub is a corporation recently formed by Parent for the purpose of the Merger, and is duly organized, validly existing and in good standing under the laws of the state of Wyoming, has all requisite corporate authority and power, licenses, authorizations, consents and approvals to carry on its business as presently conducted and to own, hold and operate its properties and assets as now owned, held and operated by it, and is duly qualified to do business and in good standing in each jurisdiction in which it conducts business. Parent is duly organized, validly existing and in good standing under the laws of the state of Wyoming, has all requisite corporate authority and power, licenses, authorizations, consents and approvals to carry on its business as presently conducted and to own, hold and operate its properties and assets as now owned, held and operated by it, and is duly qualified to do business and in good standing in each jurisdiction in which it conducts business.

AuthorityEach of Parent and Merger Sub has all requisite authority and power, licenses, authorizations, consents and approvals to enter into and deliver this Agreement and any of the other Transaction Documents to which Parent and Merger Sub, as applicable, is a party, and any other certificate, agreement, document or instrument to be executed and delivered by Parent and Merger Sub, as applicable, in connection with the transactions contemplated by this Agreement and to consummate the transactions contemplated by this Agreement.  The execution and delivery of this Agreement and the other Transaction Documents by Parent and Merger Sub, as applicable, and the performance of each such party’s obligations hereunder and thereunder and the consummation by Parent and Merger Sub of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of Parent and Merger Sub.  Neither Parent nor Merger Sub is required to give any notice to, make any filing with, or obtain any authorization, consent or approval of any Person or Governmental Authority in order for Parent and Merger Sub, as applicable, to execute, deliver or perform its obligations pursuant to this Agreement or the transactions contemplated hereby.  This Agreement and each of the Transaction Documents to which Parent and Merger Sub, as applicable, is a party has been duly and validly authorized and approved, executed and delivered by Parent or Merger Sub, respectively.

Binding Obligations

This Agreement and each of the Transaction Documents constitute the legal, valid and binding obligations of Parent and Merger Sub enforceable against them in accordance with their respective terms, except as such enforcement is limited by bankruptcy, insolvency and other similar Laws affecting the enforcement of creditors rights generally.

No ConflictsThe execution or the delivery of this Agreement or any Transaction Document, and the consummation or performance of the transactions contemplated hereby or thereby will not, directly or indirectly, (a) contravene, conflict with, or result in a violation of any provision of Parent’s or Merger Sub’s Organizational Documents, (b) contravene, conflict with or result in a violation of any Law, Order, charge or other restriction or decree of any Governmental Authority or any rule or regulation of the Principal Market applicable to Parent or Merger Sub or the Merger Sub’s shareholders, or by which Parent or Merger Sub or any of their respective assets and properties are bound or affected, (c) contravene, conflict with, result in any breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, impair the rights of Parent or Merger Sub under, or alter the obligations of any Person under, or create in any Person the right to terminate, amend, accelerate or cancel, or require any notice, report or other filing (whether with a


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Governmental Authority or any other Person) pursuant to, or result in the creation of a Lien on any of the assets or properties of Parent or Merger Sub under, any note, bond, mortgage, indenture, Contract, License, permit, franchise or other instrument or obligation to which Parent or Merger Sub, as applicable, is a party or by which Parent or Merger Sub or any of their assets and properties are bound or affected; or (d) contravene, conflict with, or result in a violation of, the terms or requirements of, or give any Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate or modify, any licenses, permits, authorizations, approvals, franchises or other rights held by Parent or Merger Sub or that otherwise relate to the business of, or any of the properties or assets owned or used by, Parent or Merger Sub.

Organizational Documents

Merger Sub has delivered or made available to the Company a true and correct copy of Merger Sub’s Organizational Documents, including its Articles of Incorporation and Articles of Amendment. The Merger Sub is not in violation of any of the provisions of the Merger Sub’s Organizational Documents.

CapitalizationThe authorized capital stock of Merger Sub is 100,000 shares of common stock, all of which is issued and owned by Parent.  The authorized capital stock of Parent consists of 3,000,000,000 shares of common stock, par value $0.00001, 521,083,502 of which is issued and outstanding as of the date hereof; 75 shares of Series A Preferred Stock, par value $0.00001, 75 of which is issued and outstanding as of the date hereof; 4,900 shares of Series B Preferred Stock, par value $0.00001, 3,000 of which is issued and outstanding as of the date hereof; and 5 shares of Series C Preferred Stock, par value $0.00001, 5 of which is issued and outstanding as of the date hereof.  All outstanding shares of the capital stock of Merger Sub and Parent are, and all such shares that may be issued prior to the Closing Date will be when issued, duly authorized, validly issued, fully paid and non-assessable 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 Law applicable to Merger Sub or Parent, or any Contract to which the Merger Sub or Parent is a party or otherwise bound.

On the Closing Date, the Transfer Shares will be duly authorized validly issued and fully paid, and will be non-assessable, have the rights, preferences and privileges specified, will be free of preemptive rights and will be free and clear of all Liens and restrictions, other than Liens created by the holder of such Transfer Shares, and restrictions on transfer imposed by this Agreement, by Merger Sub’s Articles and Certificate of Designation, and the Securities Act. When issued in accordance with the terms and provisions of this Agreement, the BRGO Incentive Common Shares will be duly authorized validly issued and fully paid, and will be non-assessable, have the rights, preferences and privileges specified, will be free of preemptive rights and will be free and clear of all Liens and restrictions, other than Liens created by the holder of such BRGO Incentive Common Shares, and restrictions on transfer imposed by this Agreement and the Securities Act.

Compliance with Laws; Legal ProceedingsThe business and operations of Parent and Merger Sub have been and are being conducted, in all material respects, in accordance with all applicable Laws and Orders.  There is no agreement, judgment or Order binding upon Parent or Merger Sub which has, or could reasonably be expected to have, the effect of prohibiting or materially impairing any current business practice of Parent or Merger Sub.

No Brokers or FindersNo agent, broker, investment banker, financial advisor or other firm or Person is or shall be entitled, as a result of any agreement, action or commitment of Parent or Merger Sub, or any of their respective Affiliates, to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with any of the transactions contemplated by this Agreement.

ContractsNeither Parent nor Merger Sub is in violation of or in 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 Material Adverse Effect of Parent or Merger Sub.

Tax MattersTax Returns.  Merger Sub was formed recently, has not engaged in business operations and is not required to file a Tax Return.  Parent has filed all Tax Returns required to be filed by or on behalf of Merger Sub, as applicable, and has paid all Taxes of Merger Sub, as applicable, required to have been paid (whether or not reflected on any Tax Return).  No Governmental Authority in any jurisdiction has made a claim, assertion or threat to Merger Sub that Merger Sub is or may be subject to taxation by such jurisdiction; there are no Liens with respect to Taxes on the Acquisition Sub’s property or assets; and there are no Tax rulings, requests for rulings, or closing agreements relating to Merger Sub for any period (or portion of a period) that would affect any period after the date hereof.


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No Adjustments, Changes.  Neither Merger Sub nor any other Person on behalf of Merger Sub (a) has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law; or (b) has agreed to or is required to make any adjustments pursuant to Section 481(a) of the Code or any similar provision of state, local or foreign law.

No Disputes.  Notwithstanding Parent’s obligation to file its financial statements quarterly with the SEC, there is no pending audit, examination, investigation, dispute, proceeding or claim with respect to any Taxes of Merger Sub, nor is any such claim or dispute pending or contemplated.  

No Tax Allocation, Sharing.  Merger Sub is not and has not been a party to any Tax allocation or sharing agreement.

No Other Arrangements.  Merger Sub is not a party to any Contract or arrangement for services that would result, individually or in the aggregate, in the payment of any amount that would not be deductible by reason of Section 162(m), 280G or 404 of the Code.  Merger Sub is not a “consenting corporation” within the meaning of Section 341(f) of the Code.  Merger Sub does not have any “tax-exempt bond financed property” or “tax-exempt use property” within the meaning of Section 168(g) or (h), respectively of the Code.  Merger Sub does not have any outstanding closing agreement, ruling request, request for consent to change a method of accounting, subpoena or request for information to or from a Governmental Authority in connection with any Tax matter.  During the last two years, Merger Sub has not engaged in any exchange with a related party (within the meaning of Section 1031(f) of the Code) under which gain realized was not recognized by reason of Section 1031 of the Code.  Merger Sub is not a party to any reportable transaction within the meaning of Treasury Regulation Section 1.6011-4.

SEC ReportsParent has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC, pursuant to the Exchange Act (the “SEC Reports”).

As of their respective dates, the SEC Reports and any registration statements filed by Parent under the Securities Act (the “Registration Statements”) complied in all material respects with the requirements of the Exchange Act and the Securities Act, as applicable, and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Reports or Registration Statements, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

Internal Accounting ControlsParent maintains 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.

Transactions With Affiliates and EmployeesExcept as disclosed in the SEC Reports, no officer, director, employee or stockholder of Parent or any Affiliate of any such Person, has or has had, either directly or indirectly, an interest in any transaction with Parent (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 such Person or, to the Knowledge of Parent, any entity in which any such Person has an interest or is an officer, director, trustee or partner.

LiabilitiesMerger Sub has no liabilities in excess of $25,000, and there is no Legal Proceeding pending, or to the Knowledge of Merger Sub threatened against Merger Sub, that would reasonably be expected to give rise to any Liability.  Merger Sub is not a guarantor nor is otherwise liable for any debt or obligation of any other Person.

Non-Public InformationNeither Parent, nor Merger Sub nor any Person acting on their behalf has provided the Seller or their respective agents or counsel with any information that Parent or Merger Sub 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


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BRGO in a current report on Form 8-K filed by the Acquisition Sub within four (4) Business Days after the Closing.

SurvivalParent’s and Merger Sub’s representations, warranties and agreements shall survive the execution and delivery of this Agreement.


ADDITIONAL AGREEMENTS

Access to InformationMerger Sub shall afford the Company its accountants, counsel and other representatives (including the Equity Recipients), reasonable access, during normal business hours, to the properties, books, records and personnel of Merger Sub at any time prior to the Closing in order to enable the Company and the Equity Recipients to obtain all information concerning the business, assets and properties, results of operations and personnel of Merger Sub as they may reasonably request.  No information resulting from such investigation shall affect or be deemed to modify any representation or warranty contained herein or the conditions to the obligations of Merger Sub to consummate the transactions contemplated hereby.

Legal RequirementsThe Parties shall take all reasonable actions necessary or desirable to comply promptly with all legal requirements which may be imposed on them with respect to the consummation of the transactions contemplated by this Agreement (including, without limitation, furnishing all information required in connection with approvals of or filings with any Governmental Authority, and prompt resolution of any litigation prompted hereby), and shall promptly cooperate with, and furnish information to, the other Parties to the extent necessary in connection with any such requirements imposed upon any of them in connection with the consummation of the transactions contemplated by this Agreement.

Seller AuditsPrior to the Closing and within 71 days of the date of this Agreement, any audit(s) reasonably requested by Parent for the fiscal years ending December 31, 2018 and December 31, 2019, and December 31, 2020 (the “Company Audits”) shall be performed and completed by a PCAOB registered auditing firm and the costs of the Company Audits shall be borne by Parent.

Tax MattersThe Merger is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the Code and this Agreement is intended to constitute a “plan of reorganization” within the meaning of Treasury Regulations Section 1.368-2(g) (the “Intended Tax Treatment”).  The parties to this Agreement shall prepare all Tax Returns, and take actions in the course of any Tax audit, Tax review or Tax litigation relating thereto, consistent with the foregoing Intended Tax Treatment unless and to the extent of any “determination” under Section 1313(a) of the Code.  Notwithstanding the foregoing, except as provided in the immediately following paragraph, Parent makes no representations or warranties to any holders of any Company Capital Stock or any other Person regarding the Tax treatment of the Merger, or any of the Tax consequences to the Company or any such holder or other Person, with respect to this Agreement, the Merger or any of the other transactions contemplated hereby.  The Company acknowledges that the Company and the Company’s stockholders are relying solely on their own Tax advisors in connection with this Agreement, the Merger and the other transactions and agreements contemplated hereby.


POST CLOSING COVENANTS

GeneralIn case at any time after the Closing any further action is necessary to carry out the purposes of this Agreement, each of the Parties will take such further action (including the execution and delivery of such further instruments and documents) as any other Party reasonably may request.

LitigationIn the event and for so long as any Party actively is contesting or defending against any action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand in connection with (i) any transaction contemplated under this Agreement or (ii) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction that existed on or prior to the Closing Date involving Merger Sub or the Company, each of the other Parties will cooperate with such Party and such Party’s counsel in the contest or defense, make available any personnel under their control, and provide such testimony and access to their books and records as shall be reasonably necessary in connection with the contest or defense, all at the sole cost and expense of the contesting or defending Party.


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Public AnnouncementsParent shall file with the SEC a Form 8-K describing the material terms of the transactions contemplated hereby as soon as practicable following the Closing Date but in no event more than four (4) business days following the signing of this Agreement, and another Form 8-K not more than four (4) business after the Closing.


CONDITIONS TO CLOSING

Conditions to Obligation of the Parties GenerallyThe Parties shall not be obligated to consummate the transactions to be performed by each of them in connection with the Closing if, on the Closing Date, (i) any Legal Proceeding shall be pending or threatened before any Governmental Authority wherein an Order or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (ii) any Law or Order which would have any of the foregoing effects shall have been enacted or promulgated by any Governmental Authority.

Conditions to Obligations of the Company and ShareholderThe Company and the Shareholder’s obligations to consummate the transactions are contingent upon the following conditions precedent, or their waiver thereof:

The satisfaction of the Company and the Shareholder with respect to the results of the legal, accounting and business due diligence investigation of Parent and Merger Sub to be performed by the attorneys, accountants and representatives of the Company and the Shareholder, as the case may be;

The satisfaction of the Company and the Shareholder with the terms and conditions in this Agreement and the Transaction Documents, and any ancillary documents carrying out the terms of the Merger as set forth therein, respectively;

All representations and warranties of Parent and Merger Sub contained in this Agreement will be true and correct at and as of the date of this Agreement and at and as of the Closing Date.

Parent and Merger Sub will have performed and satisfied all agreements and covenants required by this Agreement to be performed by Parent and Merger Sub before or on the Closing Date;

Parent and Merger Sub will have delivered to the Company all of the Transaction Documents and any ancillary documents carrying out the terms of the Merger, other than such documents and agreements that the Company agrees may be provided following the Closing;

Parent and Merger Sub obtaining of all necessary and material governmental and third-party consents and approvals; and

the absence of any material adverse change in Parent’s or Merger Sub’s or any of their respective subsidiaries’ or affiliates’ condition, assets, operations or business prospects.

Conditions to Obligations of Parent and Merger Sub. Parent and Merger Sub’s obligation to consummate the transactions contemplated by this Agreement is contingent upon the following conditions precedent, or its waiver thereof:

Parent and Merger Sub’s satisfaction with the results of the legal, accounting and business due diligence investigation of the Company and the Shareholder, to be performed by Parent’s attorneys, accountants and representatives;

Parent’s satisfaction with the terms and conditions in the this Agreement and the Transaction Documents, and any ancillary documents carrying out the terms of the Merger as set forth therein, respectively;

The Company and the Shareholder’s obtaining of all necessary and material governmental and third-party consents and approvals;

Completion of the Company Audits;


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The absence of any material adverse change in the Company’s condition, assets, operations or business prospects, to be verified by updated reports provided by the Company by June 29, 2021. The Company will provide the following financial reporting as of May 31st., to include Current Revenue YTD, with P&L and Balance Sheets, Current Debt or Payables, Current Balances in Bank Accounts for Operations. This same financial reporting will be due for the month of June, 15 days after closing. The Integration Plan of moving the assets over into Merger Sub, Contact Information for all bank accounts, Access for Berge Abajian and his designee’s approved by Parent into all systems, accounts, and platforms, confirmation of the status of the changes with the Facebook and Google Algorithms and its effect on Parent’s business shall take place during the 30 day integration period; with account access to be given to Parent on the day of Closing.

Confirmation that the Company or the Shareholder has paid off all of the Liabilities set forth on Schedule C.


TERMINATION

Grounds for TerminationAnything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing Date:

by the mutual written agreement of the Parties;

upon written notice of termination from Parent to the Company if the Closing has not occurred on or prior to the Termination Date, unless the failure of the Closing to have occurred is attributable to a failure on the part of Parent or Merger Sub to perform any material obligation to be performed by Parent  pursuant to this Agreement at or prior to the Closing;

upon written notice of termination from the Company to Parent and Merger Sub if the Closing has not occurred on or prior to the Termination Date, unless the failure of the Closing to have occurred is attributable to a failure on the part of the Company or the Shareholder to perform any material obligation to be performed by the Company or the Shareholder pursuant to this Agreement at or prior to the Closing;

by either Party, upon written notice of termination, if: (i) a Governmental Authority of competent jurisdiction shall have issued a final non-appealable Order, or shall have taken any other action having the effect of, permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, or (ii) if an event or condition renders it impossible to satisfy a condition precedent to the terminating Party’s obligation to consummate the transactions contemplated by this Agreement; provided, however, that the right to terminate this Agreement under this Section shall not be available to a Party if such event was primarily due to the failure of such Party to perform any of its obligations under this Agreement.

Procedure and Effect of TerminationIn the event of the termination of this Agreement (a) each Party will return all documents, work papers and other material of the other Party relating to this Agreement and the transactions contemplated hereby, whether so obtained before or after the execution hereof, to the Party furnishing the same; provided, that each Party may retain one copy of all such documents for archival purposes in the custody of its outside counsel and (b) all filings, applications and other submission made by any Party to any Person, including any Governmental Authority, in connection with the transactions contemplated hereby shall, to the extent practicable, be withdrawn by such Party from such Person.


SURVIVAL; INDEMNIFICATION

SurvivalAll representations, warranties, covenants, and obligations in this Agreement shall survive the Closing, subject to Section 12.4 below.  The right to indemnification, payment of damages or other remedy based on such representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation.  The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or


16



obligation, will not affect the right to indemnification, payment of damages, or other remedy based on such representations, warranties, covenants, and obligations.

Indemnification by the Company and the ShareholderThe Company and the Shareholder shall indemnify, defend and hold harmless Parent, Merger Sub, and their Representatives, from and against all costs or expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement (collectively, “Damages”) arising, directly or indirectly, from or in connection with:

any breach (or alleged breach) of any representation or warranty made by the Company or the Shareholder in this Agreement or any Transaction Document or in any certificate delivered by the Company pursuant to this Agreement;

any Liability of the Company as of the Closing, (including specifically any tax liability not known on the date of the Closing, but which is later assessed against the Company for any tax period prior to the date of the Closing), other than Current Liabilities; or

any claim or allegation that any Person is entitled to any amount in connection with the Merger (other than, with respect to the Shareholder, the consideration allocable to the Shareholder in accordance with Sections 2.3, 2.4, 2.5 and 3.1).

Indemnification by Parent and Merger Sub.  Parent and Merger Sub shall indemnify, defend and hold harmless the Company, the Shareholder, and their respective Representatives, from and against all Damages arising, directly or indirectly, from or in connection with: (a) any breach (or alleged breach) of any representation or warranty made by Parent or Merger Sub in this Agreement or any Transaction Document or in any certificate delivered by Parent or Merger Sub pursuant to this Agreement; or (b) any claim with respect to the Transfer Shares or BRGO Incentive Common Shares.

Limitation on Survivability and Liability.  The representations and warranties contained in this Agreement and the Transaction Documents by the Parties, and the respective indemnification obligations set forth in this Article XII, shall survive the Closing for twelve (12) months. The only post-Closing remedy for any breach thereof (other than fraud) on the part of the Company or the Shareholder during such period shall be limited to the Indemnification Escrow Amount and will be recovered by Parent, Merger Sub and their Representatives as an offset against the Final Installment Payments.  If the Company is not obligated to indemnify Parent, Merger Sub or their Representatives for a claim brought on or prior to the twelve (12) month anniversary of the Closing, or if the aggregate amounts for which Company has an obligation to indemnify Parent, Merger Sub or their Representatives for any such claims is, in the aggregate, less than the Indemnification Escrow Amount, any balance in the Indemnification Escrow Amount shall be paid to the Shareholder in accordance with the terms and provisions of Section 2.4. Other than as described in the prior sentence, there will be no post-Closing remedies, indemnification, or other liability on the part of the Seller or the Shareholder pursuant to this Agreement or the Transaction Documents, except in the event of fraud.

Matters Involving Third Parties.

If any third party shall notify any Party (the “Indemnified Party”) with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnification by the other Party pursuant to Section 12.2 or 12.3 above (the “Indemnifying Party”), then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is thereby prejudiced.

Any Indemnifying Party will have the right to defend the Indemnified Party against the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (C) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (D) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith


17



judgment of the Indemnified Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently.

So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 12.5(b): (A) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, (B) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to be withheld unreasonably).

In the event any condition in Section 12.5(b) is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it reasonably may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses), and (C) the Indemnifying Parties will remain responsible for any Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the fullest extent provided in this Article XII.

Exclusive RemedyThe Parties acknowledge and agree that the indemnification provisions in this Article XII hereof shall be the exclusive remedies of the Parties with respect to the transactions contemplated by this Agreement, other than for fraud and willful misconduct.


MISCELLANEOUS

ExpensesExcept as otherwise expressly provided in this Agreement, including pursuant to Section 8.3, each Party will bear its respective expenses incurred in connection with the preparation, execution, and performance of this Agreement and the transactions contemplated by this Agreement, including all fees and expenses of agents, representatives, counsel, and accountants.  In the event of termination of this Agreement, the obligation of each Party to pay its own expenses will be subject to any rights of such Party arising from a breach of this Agreement by another Party.

ConfidentialityThe Parties will maintain in confidence, and will cause their respective directors, officers, employees, agents, and advisors to maintain in confidence, any written, oral, or other information obtained in confidence from another Person in connection with this Agreement or the transactions contemplated by this Agreement, unless (a) such information is already known to such Party or to others not bound by a duty of confidentiality or such information becomes publicly available through no fault of such Party, (b) the use of such information is necessary or appropriate in making any required filing with the SEC, or obtaining any consent or approval required for the consummation of the transactions contemplated by this Agreement, (c) the furnishing or use of such information is required by or necessary or appropriate in connection with legal proceedings, or (d) such information is contained in a press release or similar announcement approved by the  other Parties hereto; provided, however, that in the case of any disclosure pursuant to clause (b) or clause (c), the Party intending to disclose such information shall provide reasonably advanced notice to the Party whose information will be disclosed.  If the transactions contemplated by this Agreement are not consummated, each Party will return or destroy all of such written information each party has regarding the other Parties.

NoticesAll notices, demands, consents, requests, instructions and other communications to be given or delivered or permitted under or by reason of the provisions of this Agreement or in connection with the transactions contemplated hereby shall be in writing and shall be deemed to be delivered and received by the intended recipient as follows: (i) if personally delivered, on the Business Day of such delivery (as evidenced by the receipt of the personal delivery service), (ii) if mailed certified or registered mail return receipt requested, two (2) Business Days after being mailed, (iii) if delivered by overnight courier (with all charges having been prepaid), on the Business Day of such delivery (as evidenced by the receipt of the overnight courier service of recognized standing), or (iv) if delivered by facsimile transmission or other electronic means, including email, on the Business Day of such delivery if sent by 6:00 p.m. in the time zone of the recipient, or if sent after that time, on the next succeeding Business Day.  If any notice, demand, consent, request, instruction or other


18



communication cannot be delivered because of a changed address of which no notice was given (in accordance with this Section), or the refusal to accept same, the notice, demand, consent, request, instruction or other communication shall be deemed received on the second Business Day following the day the notice is sent (as evidenced by a sworn affidavit of the sender).  All such notices, demands, consents, requests, instructions and other communications will be sent to the following addresses or facsimile numbers as applicable:

If to Parent or Merger Sub, to:

 

GEAR BUBBLE TECH, INC.

12 Daniel Road

East Fairfield, NJ 07004

Attention: Berge Abajian

Email:  berge@bergio.com

 

 

 

 

 

 

 

If to the Company or the Shareholder, to:

 

GEARBUBBLE, INC.

7000 Smoke Ranch Rd

Suite 175

Las Vegas, NV 89128

Attention: Don Wilson

Email:  donaldwilson23@gmail.com

 

 

 

 

Copy to Craig Lang:

Email:  Craig.Lang@dlapiper.com

 

or such other addresses as shall be furnished in writing by any Party in the manner for giving notices hereunder.

Further AssurancesThe Parties agree (a) to furnish upon request to each other such further information, (b) to execute and deliver to each other such other documents, and (c) to do such other acts and things, all as the other Parties may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement.

WaiverThe rights and remedies of the Parties are cumulative and not alternative.  Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement or the documents referred to in this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.  To the maximum extent permitted by applicable Law, (a) no claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other Parties; (b) no waiver that may be given by a Party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one Party will be deemed to be a waiver of any obligation of such Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.

Entire Agreement and ModificationThis Agreement supersedes all prior agreements between the Parties with respect to its subject matter and constitutes (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the Parties with respect to its subject matter.  This Agreement may not be amended except by a written agreement executed by the Party against whom the enforcement of such amendment is sought.

Assignments, Successors, and No Third-Party RightsNo Party may assign any of its rights under this Agreement without the prior consent of the other Parties.  Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the Parties.  Except as set forth in Article XIII hereof, nothing expressed or referred to in this Agreement will be construed to give any Person other than the Parties any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement.

SeverabilityIf any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect.  Any


19



provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

Section HeadingsThe headings of Articles and Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation.  All references to “Article” or “Articles” or “Section” or “Sections” refer to the corresponding Article or Articles or Section or Sections of this Agreement, unless the context indicates otherwise.

ConstructionThe Parties have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.  Any reference to any federal, state, local, or foreign statute or Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.  Unless otherwise expressly provided, the word “including” shall mean including without limitation.  The Parties intend that each representation, warranty, and covenant contained herein shall have independent significance.  If any Party has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) which the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of such representation, warranty, or covenant.  All words used in this Agreement will be construed to be of such gender or number as the circumstances require.

CounterpartsThis Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.  In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.

Specific PerformanceEach of the Parties acknowledges and agrees that the other Parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached.  Accordingly, each of the Parties agrees that the other Parties shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement, other than with respect to Article VI and Article VII, and to enforce specifically this Agreement and the terms and provisions hereof in any action instituted in any court of the U.S. or any state thereof having jurisdiction over the Parties and the matter (subject to the provisions set forth in Section 13.13 below), in addition to any other remedy to which they may be entitled, at Law or in equity.

Governing Law; Submission to JurisdictionThis Agreement shall be governed by and construed in accordance with the Laws of the State of Wyoming without regard to conflicts of Laws principles.  Each of the Parties submits to the jurisdiction of any state or federal court sitting in the State of Wyoming, in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court.  Each of the Parties waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of any other Party with respect thereto.  Any Party may make service on any other Party by sending or delivering a copy of the process to the Party to be served at the address and in the manner provided for the giving of notices in Section 13.3 above.  Nothing in this Section 13.13, however, shall affect the right of any Party to serve legal process in any other manner permitted by Law or at equity.  Each Party agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by Law or at equity.

Waiver of Jury TrialEACH OF THE PARTIES HEREBY IRREVOCABLY WANES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

[Signature Page Follows]

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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first above written.

MERGER SUB:

 

GEAR BUBBLE TECH, INC.

 

 

 

By:  _________________________

Name: Berge Abajian

Title: President

EQUITY RECIPIENTS:

KANE FAMILY TRUST

 

By:  _____________________

Suzette Lynn Kane, Trustor

 

PARENT:

 

BERGIO INTERNATIONAL, INC.

 

 

 

By: _________________________

Name: Berge Abajian

Title: Chief Executive Officer

MARTIN CRUMLISH AND ANNETTE CRUMLISH

 

By:  _____________________

Martin Crumlish

 

By:  _____________________

Annette Crumlish

 

COMPANY:

 

GEARBUBBLE, INC.

 

 

By: _________________________

Name: Donald Wilson

Title: President

KREATE VENTURES FZE

 

By:  _____________________

Ankur Shukla, Authorized Signatory

SHAREHOLDER:

 

_____________________________

Donald Wilson

_____________________

Leon Apel

 

 

 

 


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Schedule A

Equity Recipients

 

Name

Percentage

Transfer Shares

Donald Wilson

91.9640%

45,063

Kane Family Trust

2.2577%

1,106

Martin Crumlish and Annette Crumlish

2.7782%

1,361

Kreate Ventures FZE

1.5000%

735

Leon Apel

1.5000%

735

Total

 

49,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 




Schedule B

Revenue and Net Income Benchmarks

 

REVENUE AND NET INCOME BENCHMARKS TO BE MET BY ACQUISITION SUB IN ORDER FOR THE SHAREHOLDERS TO EARN BRGO INCENTIVE COMMON SHARES

 

 

For 12 Months Following Closing (“Year One”):

 

$40 million Topline Revenue, $2 Million Net Income = 5 Million Shares of Common Stock

$50 Million Topline Revenue, $2.5 Million Net Income = 10 Million Shares of Common Stock

$60 Million Topline Revenue, $3 Million Net Income = 17.5 Million Shares of Common Stock

$70 Million Topline Revenue $3.5 Million Net Income = 27.5 Million Shares of Common Stock

$80 Million Topline Revenue $4 Million Net Income = 35 Million Shares of Common Stock

$90 Million Topline Revenue $4.5 Million Net Income = 42.5 Million Shares of Common Stock

$100 Million Topline Revenue $5 Million Net Income = 50 Million Shares of Common Stock

 

For 12 Months After Year One (“Year Two”):

 

$50 Million Topline Revenue, $2.5 Million Net Income = 5 Million Shares of Common Stock

$60 Million Topline Revenue, $3 Million Net Income = 10 Million Shares of Common Stock

$70 Million Topline Revenue $3.5 Million Net Income = 15 Million Shares of Common Stock

$80 Million Topline Revenue $4 Million Net Income = 20 Million Shares of Common Stock

$90 Million Topline Revenue $4.5 Million Net Income = 25 Million Shares of Common Stock

$100 Million Topline Revenue $5 Million Net Income =  35 Million Shares of Common Stock

 

For 12 Months After Year Two (“Year Three”):

 

$60 Million Topline Revenue, $3 Million Net Income =  5 Million Shares of Common Stock

$65 Million Topline Revenue, $3.25 Million Net Income =  7.5 Million Shares of Common Stock

$70 Million Topline Revenue $3.5 Million Net Income =  10 Million Shares of Common Stock

$75 Million Topline Revenue $3.75 Million Net Income =  12.5 Million Shares of Common Stock

$80 Million Topline Revenue $4 Million Net Income =  15 Million Shares of Common Stock

$90 Million Topline Revenue $4.5 Million Net Income =  20 Million Shares of Common Stock

$100 Million Topline Revenue $5 Million Net Income =  25 Million Shares of Common Stock

 

 

 

 

 

 

 

 

 

 




Schedule C

Liabilities

 

The following currently existing liabilities shall be paid off by Gear Bubble or the Shareholder prior to the Closing of the Acquisition.

 

Any tax liability owed by Gear Bubble through the date of the Closing;

 

Any monies owed to Equity Recipients whose shares of Gear Bubble are being purchased by the Company.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 




Exhibit 1

NV Articles of Merger

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 




Exhibit 2

WY Articles of Merger

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



EXHIBIT 10.2

 

ARTICLES OF MERGER (WYOMING)

 

OF

 

GEARBUBBLE, INC.

(a Nevada corporation)

 

WITH AND INTO

 

GEAR BUBBLE TECH, INC.

(a Wyoming corporation)

 

July 9, 2021

 

In accordance with all applicable statutes of the Wyoming Business Corporation Act, the undersigned, Berge Abajian, being the President of Gear Bubble Tech, Inc., a Wyoming corporation, DOES HEREBY CERTIFY as follows:

 

1)The name and state of incorporation of each of the constituent corporations are Gearbubble, Inc., a Nevada corporation (“Gearbubble NV”), and Gear Bubble Tech, Inc. (the “Company”), a Wyoming corporation; 

 

2)An Agreement and Plan of Merger dated July 1, 2021 (the “Merger Agreement”), setting forth the terms and conditions of the merger of Gearbubble NV with and into the Company (the “Merger”), has been duly approved, adopted, certified, executed and acknowledged by the directors and the shareholders of the Company in the manner required by the Wyoming Business Corporation Act and the Company’s articles of incorporation. 

 

3)The Merger Agreement and the Merger have been approved, adopted, certified, executed and acknowledged by the directors and stockholders of Gearbubble NV and Gearbubble NV in accordance with all applicable statutes of the Nevada Revised Statutes. 

 

4)The name of the surviving corporation is Gear Bubble Tech, Inc.; 

 

5)The surviving corporation, Gear Bubble Tech, Inc., will be a Wyoming corporation and its Articles of Incorporation as currently filed with the Secretary of State of the State of Wyoming shall be the Articles of Incorporation of the surviving corporation; 

 

6)The Merger Agreement is on file at the principal place of business of the surviving corporation, 12 Daniel Road, East Fairfield, NJ 07004. A copy of the agreement of merger will be furnished by the surviving corporation, on request and without cost, to any stockholder of either constituent corporation; 

 

7)This certificate shall become effective at the time it is filed with the Secretary of State of the State of Wyoming. 

 

 

(signature page follows)


 

IN WITNESS WHEREOF, of Gear Bubble Tech, Inc. has caused these Articles of Merger to be executed in its name as of July 9, 2021.

 

GEAR BUBBLE TECH, INC.

 

By: /s/ Berge Abajian

Name: Berge Abajian

Title: President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

BARBARA K. CEGAVSKE

Secretary of State

202 North Carson Street

Carson City, Nevada 89701-4201

(775) 684-5708

Website: www.nvsos.gov

 

 

 

Articles of Merger

 

(PURSUANT TO NRS 92A.200)

 

 

Articles of Merger

(Pursuant to NRS Chapter 92A)

 

1)Name and jurisdiction of organization of each constituent entity (NRS 92A.200): 

 

Name of merging entity: Gearbubble, Inc.

Jurisdiction: Nevada

Entity type: Corporation

 

Name of merging entity: Gear Bubble Tech, Inc.

Jurisdiction: Wyoming

Entity type: Corporation

 

2)Forwarding address where copies of process may be sent by the Secretary of State of Nevada (if a foreign entity is the survivor in the merger - NRS 92A.190): 

 

Attn: Berge Abajian

c/o:

GEAR BUBBLE TECH, INC.

12 Daniel Road

East Fairfield, NJ 07004

 

3)Choose one: 

 

The undersigned declares that a plan of merger has been adopted by each constituent entity (NRS 92A.200). 

 

4)Owner's approval (NRS 92A.200) (options a, b or c must be used, as applicable, for each entity): 

 

(b)The plan was approved by the required consent of the owners of *: 

 

Name of merging entity, if applicable: Gearbubble, Inc.

 

Name of merging entity, if applicable: Gear Bubble Tech, Inc.

 

5)Amendments, if any, to the articles or certificate of the surviving entity. Provide article 

 

Not applicable, no amendments to the articles or certificate of the surviving entity.


 

 

BARBARA K. CEGAVSKE

Secretary of State

202 North Carson Street

Carson City, Nevada 89701-4201

(775) 684-5708

Website: www.nvsos.gov

 

 

 

Articles of Merger

 

(PURSUANT TO NRS 92A.200)

 

 

6)Location of Plan of Merger (check a or b): 

 

(b)  The entire plan of merger is on file at the registered office of the surviving corporation, limited-liability company or business trust, or at the records office address if a limited partnership, or other place of business of the surviving entity (NRS 92A.200). 

 

7)Effective date and time of filing: (optional) (must not be later than 90 days after the certificate is filed) 

 

Date:________________  Time:___________________

 

8)Signatures - Must be signed by: An officer of each Nevada corporation; All general partners of each Nevada limited partnership; All general partners of each Nevada limited-liability limited partnership; A manager of each Nevada limited-liability company with managers or one member if there are no managers; A trustee of each Nevada business trust (NRS 92A.230)* 

 

Name of merging entity: _______________________________________

 

Signature __________________________  Title ________________  Date ________________

 

 

 

Name of merging entity: _______________________________________

 

Signature __________________________  Title ________________  Date ________________

 

 

 

Name of merging entity: _______________________________________

 

Signature __________________________  Title ________________  Date ________________

 

 

 

Name of merging entity: _______________________________________

 

Signature __________________________  Title ________________  Date ________________

 

 



EXHIBIT 10.3

 

Bergio International, Inc.

2021 Stock Incentive Plan

 

 

Establishment, Purpose and Types of Awards

Bergio International, Inc., a Wyoming corporation (the “Company”), hereby establishes the Bergio International, Inc. 2021 Stock Incentive Plan (the “Plan”).  The purpose of the Plan is to promote the long-term growth and profitability of the Company by (i) providing key people with incentives to improve stockholder value and to contribute to the growth and financial success of the Company, and (ii) enabling the Company to attract, retain and reward the best-available persons.

The Plan permits the granting of stock Options (including incentive stock options qualifying under Code Section 422 and nonqualified stock options), Stock Appreciation Rights, restricted or unrestricted Stock Awards, Restricted Stock Units, Performance Awards, other stock-based awards, or any combination of the foregoing.

Definitions

Under this Plan, except where the context otherwise indicates, the following definitions apply:

“Administrator” shall mean the committee or committees as may be appointed by the Board from time to time to administer the Plan, or if no such committee is appointed, the Board itself.

Affiliate” shall mean any entity, whether now or hereafter existing, which controls, is controlled by, or is under common control with, the Company (including, but not limited to, joint ventures, limited liability companies, and partnerships).  For this purpose, “control” shall mean ownership of 50% or more of the total combined voting power or value of all classes of stock or interests of the entity.

“Award” shall mean any stock Option, Stock Appreciation Right, Stock Award, Restricted Stock Unit, Performance Award, or other stock-based award.

“Board” shall mean the Board of Directors of the Company.

“Change in Control” shall mean shall mean the occurrence of one or more of the change in ownership or control events set forth in Treasury Regulation Section 1.409A-3(i)(5).

“Code” shall mean the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder.

“Common Stock” shall mean shares of common stock of the Company, par value  $0.00001 per share.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

“Fair Market Value”  So long as the Common Stock is registered under Section 12(b) or (g) of the Exchange Act, “Fair Market Value” shall mean, as applicable, (i) either the closing price or the average of the high and low sale price on the relevant date, as determined in the Administrator’s discretion, quoted on the OTC Markets, New York Stock Exchange, or the Nasdaq National Market; (ii) the last sale price on the relevant date quoted on the OTC Markets, New York Stock Exchange, or the Nasdaq National Market; (iii) the average of the high bid and low asked prices on the relevant date quoted on the OTC Markets, New York Stock Exchange, or the Nasdaq National Market or a comparable service as determined in the Administrator’s discretion; or (iv) if the Common Stock is not quoted by any of the above, the average of the closing bid and asked prices on the relevant date furnished by a professional market maker for the Common Stock, or by such other source, selected by the Administrator.  If no public trading of the Common Stock occurs on the relevant date, then Fair Market Value shall be determined as of


 


the next preceding date on which trading of the Common Stock does occur.  In the event that the Common Stock is not registered under Section 12(b) or (g) of the Exchange Act, Fair Market Value shall mean, with respect to a share of the Company’s Common Stock for any purpose on a particular date, the value determined by the Administrator in good faith; provided that for purpose of any Option or any Award that is deferred compensation subject to Code Section 409A, such value shall be determined reasonably in a manner that satisfies Code Section 409A.

“Grant Agreement” shall mean a written document memorializing the terms and conditions of an Award granted pursuant to the Plan and shall incorporate the terms of the Plan.

“Incentive Stock Option” shall mean an Option that is an “incentive stock option” within the meaning of Code Section 422, or any successor provision, and that is designated by the Administrator as an Incentive Stock Option.

“Nonqualified Stock Option” means an Option other than an Incentive Stock Option.

Option” means the right to purchase a stated number of shares of Common Stock at a stated price for a stated period of time, granted pursuant to Section 7.

“Parent” shall mean a corporation, whether now or hereafter existing, within the meaning of the definition of “parent corporation” provided in Code Section 424(f), or any successor thereto.

“Participant” shall mean an employee, officer, director or consultant of the Company, or of any Affiliate of the Company to whom an Award is granted pursuant to the Plan, or upon the death of the Participant, his or her successors, heirs, executors, and administrators, as the case may be.

“Performance Awards” shall mean an Award of a number of shares or units granted to a Participant pursuant to Section 11 that is paid out based on the achievement of stated performance criteria or Performance Goals during a stated period of time.

“Performance Goals” shall mean the objectives established by the Administrator in its sole discretion with respect to any performance-based Awards that relate to one or more business criteria within the meaning of Code Section 162(m).   Performance Goals may include or be based upon, without limitation: sales; gross revenue; gross margins; internal rate of return; cost; ratio of debt to debt plus equity; profit before tax; earnings before interest and taxes; earnings before interest, taxes, depreciation, and amortization; earnings per share; operating earnings; economic value added; ratio of operating earnings to capital spending; cash flow; free cash flow; net operating profit; net income; net earnings; net sales or net sales growth; price of Common Stock; return on capital, net assets, equity, or shareholders’ equity; segment income; market share; productivity ratios; expense targets; working capital targets; or total return to shareholders.   Performance Goals may (a) be used to measure the performance of the Company as a whole or any Subsidiary, business unit or segment of the Company, (b) include or exclude (or be adjusted to include or exclude) extraordinary items, the impact of charges for restructurings, discontinued operations and other unusual and non-recurring items, and the cumulative effects of tax or accounting changes, each as defined by generally accepted accounting principles and as identified in the financial statements, notes to the financial statements, management's discussion and analysis or other Securities and Exchange Commission filings, and/or (c) reflect absolute entity performance or a relative comparison of entity performance to the performance of a peer group, index, or other external measure, in each case as determined by the Administrator in its sole discretion.

“Restricted Stock Units” shall mean an Award granted to a Participant pursuant to Section 10, denominated in units, providing a Participant the right to receive payment at a future date after the lapse of restrictions or achievement of performance criteria or Performance Goals or other conditions determined by the Administrator.

“Stock Appreciation Right” or “SAR” shall mean the right to receive an amount calculated as provided in a grant pursuant to Section 8.

“Stock Award” shall mean an Award of restricted or unrestricted Common Stock granted to a Participant pursuant to Section 9 and the other provisions of the Plan.


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“Subsidiary” and “subsidiaries” shall mean only a corporation or corporations, whether now or hereafter existing, within the meaning of the definition of “subsidiary corporation” provided in Code Section 424(f), or any successor thereto.

“Ten Percent Owner” means a person who owns, or is deemed within the meaning of Section 422(b)(6) of the Code to own, stock possessing more than 10% of the total combined voting power of all classes of stock of the Company (or any Parent or Subsidiary of the Company).  Whether a person is a Ten Percent Owner shall be determined with respect to an Option based on the facts existing immediately prior to the grant date of the Option.

 

Administration

Administration of the Plan.  The Plan shall be administered by the Board or the Administrator.

Powers of the Administrator or Board.  The Administrator or Board shall have all the powers vested in it by the terms of the Plan, such powers to include authority, in its sole and absolute discretion, to grant Awards under the Plan, prescribe Grant Agreements evidencing such Awards and establish programs for granting Awards.

The Administrator or Board shall have full power and authority to take all other actions necessary to carry out the purpose and intent of the Plan, including, but not limited to, the authority to:  (i) determine the eligible persons to whom, and the time or times at which Awards shall be granted; (ii) determine the types of Awards to be granted; (iii) determine the number of shares to be covered by or used for reference purposes for each Award; (iv) impose such terms, limitations, restrictions and conditions upon any such Award as the Administrator or Board shall deem appropriate; (v) modify, amend, extend or renew outstanding Awards, or accept the surrender of outstanding Awards and substitute new Awards (provided however, that, except as provided in Section 14.4 of the Plan, any modification that would materially adversely affect any outstanding Award shall not be made without the consent of the holder); (vi) accelerate or otherwise change the time in which an Award may be exercised or becomes payable and to waive or accelerate the lapse, in whole or in part, of any restriction or condition with respect to such Award, including, but not limited to, any restriction or condition with respect to the vesting or exercisability of an Award following termination of any grantee’s employment or other relationship with the Company (vii) establish objectives and conditions, including Performance Goals, if any, for earning Awards and determining whether Awards will be paid after the end of a performance period, (viii) make adjustments in the Performance Goals in recognition of unusual or nonrecurring events affecting the Company or the financial statements of the Company, or in response to changes in applicable laws, regulations, or accounting principles, and (ix) provide for forfeiture of outstanding Awards and recapture of realized gains and other realized value in such events as determined by the Administrator or Board, which include, but are not limited to, a breach of restrictive covenants or an intentional or negligent misstatement of financial records.

The Administrator or Board shall have full power and authority, in its sole and absolute discretion, to administer and interpret the Plan and to adopt and interpret such rules, regulations, agreements, guidelines and instruments for the administration of the Plan and for the conduct of its business as the Administrator or Board deems necessary or advisable.

Non-Uniform Determinations.  The Administrator’s or Board’s determinations under the Plan (including without limitation, determinations of the persons to receive Awards, the form, amount and timing of such Awards, the terms and provisions of such Awards and the Grant Agreements evidencing such Awards) need not be uniform and may be made by the Administrator selectively among persons who receive, or are eligible to receive, Awards under the Plan, whether or not such persons are similarly situated.

Limited Liability.  To the maximum extent permitted by law, no member of the Administrator or Board shall be liable for any action taken or decision made in good faith relating to the Plan or any Award thereunder.

Indemnification.  To the maximum extent permitted by law and by the Company's charter and by-laws, the members of the Administrator or Board shall be indemnified by the Company in respect of all their activities under the Plan.


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Effect of Administrator’s or Board’s Decision.  All actions taken and decisions and determinations made by the Administrator or Board on all matters relating to the Plan pursuant to the powers vested in it hereunder shall be in the Administrator’s or Board’s sole and absolute discretion and shall be conclusive and binding on all parties concerned, including the Company, its stockholders, any Participants in the Plan and any other employee, consultant, or director of the Company, and their respective successors in interest.

Shares Available for the Plan

Shares Available for Awards.  Subject to adjustments as provided in Section 14.4 of the Plan, the shares of Common Stock that may be issued with respect to Awards granted under the Plan shall not exceed an aggregate of 1,000,000,000 shares of Common Stock.  The Company shall reserve such number of shares for Awards under the Plan, subject to adjustments as provided in Section 14.4 of the Plan.  The maximum number of shares of Common Stock under the Plan that may be issued as Incentive Stock Options shall 100,000,000 shares.  Shares may be authorized but unissued Common Stock or authorized and issued Common Stock held in the Company’s treasury.  If any Award, or portion of an Award, under the Plan expires or terminates unexercised, becomes unexercisable or is forfeited or otherwise terminated, surrendered or canceled as to any shares, or if any shares of Common Stock are surrendered to the Company in connection with any Award (whether or not such surrendered shares were acquired pursuant to any Award), the shares subject to such Award and the surrendered shares shall thereafter be available for further Awards under the Plan; provided, however, that any such shares that are surrendered to the Company in connection with any Award or that are otherwise forfeited after issuance shall not be available for purchase pursuant to Incentive Stock Options.  Shares under substitute awards pursuant to Section 14.4 for grants made under a plan of an acquired business entity shall not reduce the maximum number of shares that may be issued under the Plan.

Performance-Based Award Limitation.  Awards that are designed to comply with the performance-based exception from the tax deductibility limitation of Code Section 162(m) shall be subject to the following rules:

(a)The number of shares of Common Stock that may be granted in the form of Options in a single fiscal year to a Participant may not exceed 10,000,000, as adjusted pursuant to Section 14.4. 

(b)The number of shares of Common Stock that may be granted in the form of SARs in a single fiscal year to a Participant may not exceed 10,000,000, as adjusted pursuant to Section 14.4. 

(c)The number of shares of Common Stock that may be granted in the form of Restricted Stock Awards in a single fiscal year to a Participant may not exceed 500,000,000, as adjusted pursuant to Section 14.4. 

(d)The number of Restricted Stock Units that may be granted in a single fiscal year to a Participant may not exceed 10,000,000, as adjusted pursuant to Section 14.4. 

(e)The number of shares of Common Stock that may be granted as Performance Award shares in a single fiscal year to a Participant may not exceed 50,000,000 as adjusted pursuant to Section 14.4. 

(f)The maximum amount that may be paid to a Participant for Performance Award units granted in a single fiscal year to the Participantmay not exceed $5,000,000. 

Participation

Participation in the Plan shall be open to all employees, officers, directors, and consultants of the Company, or of any Affiliate of the Company, as may be selected by the Administrator from time to time.  However, only employees of the Company, and of any Parent or Subsidiary of the Company, shall be eligible for the grant of an Incentive Stock Option. The grant of an Award at any time to any person shall not entitle that person to a grant of an Award at any future time.

Awards

Awards that may be granted under the Plan consist of Options, Stock Appreciation Rights, Stock Awards, Restricted Stock Units, Performance Awards and other stock-based awards.  The Administrator or Board, in its sole discretion, establishes the terms of all Awards granted under the Plan.  Awards may be granted individually or in tandem with other types of Awards.  All Awards are subject to the terms and conditions provided in the Grant


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Agreement.  If there is any inconsistency between the terms of the Plan and a Grant Agreement, the terms of the Plan shall control unless the Grant Agreement explicitly states that an exception to the Plan is being made.  By accepting an Award, a Participant agrees that the Award shall be subject to all of the terms and provisions of the Plan and the applicable Grant Agreement.

Stock Options

Terms and Grant Agreement.  Subject to the terms of the Plan, Options may be granted to Participants at any time as determined by the Administrator.  The Administrator or Board shall determine, and the Grant Agreement shall reflect, the following for each Option granted:

the number of shares subject to each Option;

duration of the Option (provided that no Option shall have an expiration date later than the the 10th anniversary of the date of grant and no Incentive Stock Option that is granted to any Participant who is a Ten Percent Owner shall have an expiration date later than the fifth anniversary of the date of grant);

vesting requirements that specify a vesting period;

whether the Option is an Incentive Stock Option or a Nonqualified Stock Option; provided, however, no Option shall be an Incentive Stock Option unless so designated by the Administrator or Board at the time of grant or in the Grant Agreement evidencing such Option;

the exercise price for each Option, which, except with respect to substitute awards complying with Code Section 424 and regulations thereunder, shall not be less than the Fair Market Value on the date of the grant (with respect to Incentive Stock Options, 110% of the Fair Market Value on the date of grant for any Participant who is a Ten Percent Owner);

the permissible method(s) of payment of the exercise price;

the rights of the Participant upon termination of employment or service as a director; and

any other terms or conditions established by the Administrator or Board.

Exercise of Options.  Options shall be exercisable at such times and subject to such restrictions and conditions as the Administrator or Board, in its sole discretion, deems appropriate, which need not be the same for all Participants.

An Option shall be exercised by delivering written notice as specified in the Grant Agreement on the form of notice provided by the Company.  Options may be exercised in whole or in part. The exercise price of any Option shall be payable to the Company in full, in cash or in cash equivalent approved by the Adminstrator, by tendering (if permitted by the Adminstrator or Board) previously acquired Common having an aggregate Fair Market Value at the time of exercise equal to the total Option exercise price (provided that the tendered Common Stock must have been held by the Participant for any period required by the Adminstrator or Board), or by any other means that the Adminstrator or Board determines to be consistent with the Plan's purpose and applicable law. For a Participant who is subject to Section 16 of the Exchange Act, the Company may require that the method of payment comply with Section 16 and the rules and regulations thereunder.  Any payment in shares of Common Stock, if permitted, shall be made by delivering the shares to the secretary of the Company, duly endorsed in blank or accompanied by stock powers duly executed in blank, together with any other documents and evidence as the secretary shall require (or delivering a certification or attestation of ownership of such Common Stock, if permitted by the Adminstrator or Board).

Certificates for shares of Common Stock purchased upon the exercise of an Option shall be issued in the name of or for the account of the Participant or other person entitled to receive the shares and delivered to the Participant or other person as soon as practicable following the effective date on which the Option is exercised.


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Incentive Stock Options.  Notwithstanding anything in the Plan to the contrary, no term of the Plan relating to Incentive Stock Options shall be interpreted, amended, or altered, nor shall any discretion or authority granted under the Plan be exercised so as to disqualify the Plan under Code Section 422, or, without the consent of any affected Participant, to cause any Incentive Stock Option previously granted to fail to qualify for the federal income tax treatment afforded under Code Section 421. An Option shall be considered to be an Incentive Stock Option only to the extent that the number of shares of Common Stock for which the Option first becomes exercisable in a calendar year do not have an aggregate Fair Market Value (as of the date of the grant of the Option) in excess of the “current limit.”  The current limit for any optionee for any calendar year shall be $10,000,000 minus the aggregate Fair Market Value at the date of grant of the number of shares of Common Stock available for purchase for the first time in the same year under each other incentive option previously granted to the optionee under all other plans of the Company and Affiliates.  Any Common Stock which would cause the foregoing limit to be violated shall be deemed to have been granted under a separate Nonqualified Stock Option, otherwise identical in its terms to those of the Incentive Stock Option.  The current limit will be calculated according to the chronological order in which the Options were granted.

Reduction in Price or Reissuance.  In no event shall the Administrator or Board cancel any outstanding Option for the purpose of (i) providing a replacement award under this or another Company plan, or (ii) cashing out an Option, unless such cash-out occurs in conjunction with a Change in Control.  Additionally, in no event shall the Administrator or Board, without first receiving shareholder approval, (a) cancel any outstanding Option for the purpose of reissuing the Option to the Participant at a lower exercise price or (b) reduce the exercise price of a previously issued Option.

Notification of Disqualifying Disposition.  If any Participant shall make any disposition of shares issued pursuant to the exercise of an Incentive Stock Option under the circumstances described in Code Section 421(b) (relating to certain disqualifying dispositions), such Participant shall notify the Company of such disposition within ten (10) calendar days thereof.

Stock Appreciation Rights

Terms and Agreement.  Subject to the terms of the Plan, Stock Appreciation Rights may be granted to Participants at any time as determined by the Administrator or Board.  The grant price of the SAR shall be at least equal to one hundred percent (100%) of the Fair Market Value of Stock as determined on the date of the grant, except with respect to substitute awards complying with Code Section 424 and regulations thereunder.  The Administrator or Board shall determine, and the Grant Agreement shall reflect, the following for each SAR granted:

the number of shares subject to each SAR;

whether the SAR is a Related SAR or a Freestanding SAR (as defined below);

the duration of the SAR (provided however, that no SAR shall have an expiration date later than the date after the 10th anniversary of the date of grant);

vesting requirements;

rights of the Participant upon termination of employment or service as a director; and

any other terms or conditions established by the Administrator.

Related and Freestanding SARs.   A Stock Appreciation Right may be granted in connection with an Option, either at the time of grant or at any time thereafter during the term of the Option (a “Related SAR”), or may be granted unrelated to an Option (a “Freestanding SAR”).

Surrender of Option.  A Related SAR shall require the holder, upon exercise, to surrender the Option with respect to the number of shares as to which the SAR is exercised, in order to receive payment.  The Option will, to the extent surrendered, cease to be exercisable.


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Reduction in Number of Shares Subject to Related SARs.  For Related SARs, the number of shares subject to the SAR shall not exceed the number of shares subject to the Option.  For example, if the SAR covers the same number of shares as the Option, the exercise of a portion of the Option shall reduce the number of shares subject to the SAR to the number of shares remaining under the Option.  If the Related SAR covers fewer shares than the Option, the exercise of a portion of the Option shall reduce the number of shares subject to the SAR to the extent necessary so that the number of remaining shares subject to the SAR is not more than the remaining shares under the Option.

Exercisability.  Subject to Section 8.7 and to any rules and restrictions imposed by the Administrator, a Related SAR will be exercisable at the time or times, and only to the extent, that the Option is exercisable and will not be transferable except to the extent that the Option is transferable.  A Freestanding SAR will be exercisable as determined by the Administrator or Board but in no event after 10 years from the date of grant.

Payment.  Upon the exercise of a Stock Appreciation Right, the holder will be entitled to receive payment of an amount determined by multiplying:

The excess of the Fair Market Value on the date of exercise over the Fair Market Value on the date of grant, by

The number of shares with respect to which the SAR is being exercised.

The Administrator or Board may limit the amount payable upon exercise of a Stock Appreciation Right.  Any limitation must be determined as of the date of grant and noted on the Grant Agreement evidencing the grant.

Payment may be made in cash, Common Stock, or a combination of cash and Common Stock, in the Administrator’s or Board’s sole discretion.  No fractional shares shall be used for such payment and the Administrator or Boad shall determine whether cash shall be given in lieu of such fractional shares or whether such fractional shares shall be eliminated.

 

Reduction in Price or Reissuance.  In no event shall the Administrator or Board cancel any outstanding Stock Appreciation Right for the purpose of (i) providing a replacement award under this or another Company plan, or (ii) cashing out a Stock Appreciation Right, unless such cash-out occurs in conjunction with a change in control.  Additionally, in no event shall the Administrator or Board, without first receiving shareholder approval, (a) cancel any outstanding Stock Appreciation Right for the purpose of reissuing the Stock Appreciation Right to the Participant at a lower exercise price or (b) reduce the exercise price of a previously issued Stock Appreciation Right.

Additional Terms.  The Administrator or Board may impose additional conditions or limitations on the exercise of a Stock Appreciation Right as it may deem necessary or desirable to secure for holders the benefits of Rule 16b-3, or any successor provision, or as it may otherwise deem advisable.

Stock Awards

Terms and Agreement.  Subject to the terms of the Plan, shares of restricted or unrestricted Common Stock may be granted to Participants at any time as determined by the Administrator or Board.  The Administrator or Board shall determine, and the Grant Agreement shall reflect, the following for the Stock Awards granted:

the number of shares of granted;

the purchase price, if any, to be paid by the Participant for each share of Common Stock;

the restriction period established, if any;

any requirements with respect to elections under Code Section 83(b);


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rights of the Participant upon termination of employment or service as a director; and

any other terms or conditions established by the Administrator or Board.

Restriction Period.  At the time of the grant of the Stock Award, the Administrator or Board may establish a restriction period for the shares granted, which may be time-based, based on the achievement of specified Performance Goals, a combination of time- and Performance Goal-based, or based on any other criteria the Administrator or Board deems appropriate.  The Administrator or Board may divide the shares into classes and assign a different restriction period for each class.  The Administrator or Board may impose additional conditions or restrictions upon the vesting of the Stock Award as it deems fit in its sole discretion.  If all applicable conditions are satisfied, then upon the termination of the restriction period with respect to a share of restricted Common Stock, the share shall vest and the restrictions shall lapse.  To the extent required to ensure that a Performance Goal-based Award of the Stock Award to an executive officer is deductible by the Company pursuant to Code Section 162(m), any such Award shall vest only upon the Administrator’s or Board’s determination that the Performance Goals applicable to the Award have been attained.

Restrictions on Transfer Prior to Vesting.  Prior to the vesting of a restricted Stock Award, the Participant may not sell, assign, pledge, hypothecate, transfer, or otherwise encumber the Stock Award.  Upon any attempt to transfer rights in a share of restricted Common Stock, the share and all related rights shall immediately be forfeited by the Participant.  Upon the vesting of a restricted Stock Award, the transfer restrictions of this section shall lapse with respect to that share.

Rights as a Shareholder.  Except for the restrictions set forth here and unless otherwise determined by the Administrator or Board, the Participant shall have all the rights of a shareholder with respect to shares of a Stock Award, including but not limited to the right to vote and the right to receive dividends, provided that the Administrator or Board, in its sole discretion, may require that any dividends paid on shares of a restricted Stock Award be held in escrow until all restrictions on the shares have lapsed.

Section 83(b) Election.  The Administrator or Board may provide in the Grant Agreement that the Award is conditioned upon the Participant making or not making an election under Code Section 83(b).  If the Participant makes an election pursuant to Code Section 83(b), the Participant shall be required to file a copy of the election with the Company within ten (10) calendar days.

Restricted Stock Units

Terms and Agreement.  Subject to the terms of the Plan, Restricted Stock Units may be granted to Participants at any time as determined by the Administrator or Board.  The Administrator or Board shall determine, and the Grant Agreement shall reflect, the following for the Restricted Stock Units granted:

the number of Restricted Stock Units awarded;

the purchase price, if any, to be paid by the Participant for each Restricted Stock Unit;

the restriction period established, if any;

whether dividend equivalents will be credited with respect to Restricted Stock Units, and, if so, any accrual, forfeiture or payout restrictions on the dividend equivalents;

rights of the Participant upon termination of employment or service as a director; and

any other terms or conditions established by the Administrator or Board.

To the extent a Restricted Stock Unit Award constitutes “deferred compensation” within the meaning of Code Section 409A, the Administrator or Boad shall establish Grant Agreement terms and provisions that comply with Code Section 409A and regulations thereunder.


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Restriction Period.  At the time of the grant of Restricted Stock Units, the Administrator or Board may establish a restriction period, which may be time-based, based on the achievement of specified Performance Goals, a combination of time and Performance Goal-based, or based on any other criteria the Administrator or Board deems appropriate.  The Administrator or Board may divide the awarded Restricted Stock Units into classes and assign a different restriction period for each class.  The Administrator or Board may impose any additional conditions or restrictions upon the vesting of the Restricted Stock Units as it deems fit in its sole discretion.  If all applicable conditions are satisfied, then upon the termination of the restriction period with respect to a Restricted Stock Unit, the Unit shall vest.  To the extent required to ensure that a Performance Goal-based Award of Restricted Stock Units to an executive officer is deductible by the Company pursuant to Code Section 162(m), any such Award shall become vested only upon the Administrator’s or Board’s determination that the Performance Goals applicable to the Award, if any, have been attained.

Payment.  Upon vesting of a Restricted Stock Unit, the Participant shall be entitled to receive payment of an amount equal to the Fair Market Value of one share of Stock.  Payment may be made in cash, Stock, or a combination of cash and Stock, in the Administrator’s or Board’s sole discretion.

Performance Awards

Terms and Agreement.  Subject to the terms of the Plan, Performance Awards may be granted to Participants at any time as determined by the Administrator or Board.  The Administrator or Board shall determine, and the Grant Agreement shall reflect, the following for the Performance Awards granted:

the number of shares or units awarded;

the performance period and performance criteria or Performance Goals applicable to the Award;

whether dividend equivalents will be credited with respect to Performance Awards, and if so, any accrual, forfeiture, or payout restrictions on the dividend equivalents;

the rights of the Participant upon termination of employment or service as a director (which may be different based on the reason for termination); and

any other terms or conditions established by the Administrator or Board.

To the extent an Award constitutes “deferred compensation” within the meaning of Code Section 409A, the Administrator or Board shall establish Grant Agreement terms and provisions that comply with Code Section 409A and regulations thereunder.

Payment.  After the applicable performance period has ended, the Administrator or Board will review the performance criteria and/or Performance Goals and determine the amount payable with respect to the Award, based upon the extent to which the performance criteria and/or Performance Goals have been attained within the performance period and any other applicable terms and conditions.  Payment of an earned Performance Award may be made in cash, Common Stock, or a combination of cash and Common Stock, as determined by the Administrator or Board in its sole discretion.

Other Stock-Based Awards

The Administrator or Board may from time to time grant other stock-based awards to eligible Participants in such amounts, on such terms and conditions, and for such consideration, including no consideration or such minimum consideration as may be required by law, as it shall determine.  Other stock-based awards may be denominated in cash, in Common Stock or other securities, in stock-equivalent units, in stock appreciation units, in securities or debentures convertible into Common Stock, or in any combination of the foregoing and may be paid in Common Stock or other securities, in cash, or in a combination of Common Stock or other securities and cash, all as determined in the sole discretion of the Administrator or Board.


9


Change in Control Provisions

Except as otherwise provided in any written agreement between the Participant and the Company or its Affiliate in effect when a Change in Control occurs, in the event an acquiring company does not assume Plan Awards:

all outstanding Options and Stock Appreciation Rights shall become fully vested and exercisable;

for Performance Awards, to the extent consistent with Section 162(m), all Performance Goals or performance criteria shall be deemed achieved at target levels and all other terms and conditions met, with Award payout prorated for the portion of the performance period completed as of the Change in Control and payment to occur within 45 days of the Change in Control;

all restrictions and conditional applicable to any restricted Stock Award shall lapse;

all restrictions and conditions applicable to any Restricted Stock Units shall lapse and payment shall be made within 45 days of the Change in Control;

all other Awards shall be delivered or paid within 45 days of the Change in Control.

Miscellaneous

Withholding of Taxes.  Grantees and holders of Awards shall pay to the Company or its Affiliate, or make provision satisfactory to the Administrator or Board for payment of, any taxes required to be withheld in respect of Awards under the Plan no later than the date of the event creating the tax liability.  The Company or its Affiliate may, to the extent permitted by law, deduct any such tax obligations from any payment of any kind otherwise due to the grantee or holder of an Award.  In the event that payment to the Company or its Affiliate of such tax obligations is made in shares of Common Stock, such shares shall be valued at Fair Market Value on the applicable date for such purposes.

Transferability.  Except as otherwise provided in this Section, Awards shall not be transferable, and no Award or interest therein may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution.    However, the Award of a Nonstatutory Option or Restricted Stock may be transferred by the Participant through a gift or domestic relations order in settlement of marital property rights to any of the following donees or transferees and may be reacquired by the Participant from any of such donors or transferees (each a “Permitted Transferee”):

(a)       any “family member,” which includes any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships and any individual sharing the Participant’s household (other than a tenant or employee); 

(b)        a trust in which family members have more than 50% of the beneficial interest; 

(c)       a foundation in which family members (or the Participant) control the management of assets; and 

(d)       any other entity in which family members (or the Participant) own more than 50% of the voting interests, 

provided, that (x) any such transfer is without payment of any value whatsoever; and (y) subsequent transfers of transferred Awards shall be prohibited except in accordance with this Section.  Following transfer, any such Awards and any securities issued pursuant thereto shall continue to be subject to the same terms and conditions as were applicable immediately prior to transfer (including  but not limited to risks of forfeiture), provided that the term of the Plan and the Grant Agreement shall continue to be applied with respect to the original Participant, and any Awards shall be exercisable by the transferee only to the extent and for the periods specified in the Grant


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Agreement. No transfer of an Award by will or the laws of descent and distribution shall be effective to bind the Company unless the Administrator or Board has been furnished with (a) written notice and a copy of the will and/or such evidence as the Administrator or Board may deem necessary to establish the validity of the transfer, and (b) an agreement by the transferee to comply with all the terms and conditions of the Award that would have applied to the Participant and to be bound by the acknowledgments made by the Participant in connection with the grant of the Award.  Unless otherwise determined by the Administrator or Board in accord with the provisions of the first sentence of this subsection, an Award may be exercised during the lifetime of the grantee, only by the grantee or, during the period the grantee is under a legal disability, by the grantee’s guardian or legal representative.

Adjustments; Business Combinations.  In the event of changes in the Common Stock of the Company by reason of any stock dividend, spin-off, split-up, recapitalization, merger, consolidation, business combination or exchange of shares and the like, the Administrator or Board shall, in its discretion and without the consent of holders of Awards, make appropriate adjustments to (i) the maximum number and kind of shares reserved for issuance or with respect to which Awards may be granted under the Plan as provided in Section 4 of the Plan, and (ii) the number, kind and price of shares covered by outstanding Awards.  In the event of any such changes in the Common Stock, the Administrator or Board shall, in its discretion and without the consent of holders of Awards, make any other adjustments in outstanding Awards, including but not limited to reducing the number of shares subject to Awards or providing or mandating alternative settlement methods such as settlement of the Awards in cash or in shares of Common Stock or other securities of the Company or of any other entity.

The Administrator or Board is authorized to make, in its discretion and without the consent of holders of Awards, adjustments in the terms and conditions of, and the criteria included in, Awards in recognition of unusual or nonrecurring events affecting the Company, or the financial statements of the Company or any Affiliate, or of changes in applicable laws, regulations, or accounting principles, whenever the Administrator or Board determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan.

Substitution of Awards in Mergers and Acquisitions.  Awards may be granted under the Plan from time to time in substitution for Awards held by employees, officers, consultants or directors of entities who become or are about to become employees, officers, consultants or directors of the Company or an Affiliate as the result of a merger or consolidation of the employing entity with the Company or an Affiliate, or the acquisition by the Company or an Affiliate of the assets or stock of the employing entity.  The terms and conditions of any substitute Awards so granted may vary from the terms and conditions set forth herein to the extent that the Administrator or Board deems appropriate at the time of grant to conform without dilution or enlargement of benefits the substitute Awards to the provisions of the awards for which they are substituted.

Stock Restriction Agreement and Voting Trust. As a condition precedent to the grant of any Award under the Plan, the exercise pursuant to such an Award, or to the delivery of certificates for shares issued pursuant to any Award, the Administrator or Board may require the grantee or the grantee’s successor or permitted transferee, as the case may be, to become a party to a stock  restriction agreement of the Company and/or a voting trust agreement in such form(s) as the Administrator or Board may determine from time to time.

Termination, Amendment and Modification of the Plan.  The Administrator or Board may terminate, amend or modify the Plan or any portion thereof at any time.  Notwithstanding the foregoing, no amendment shall be made without shareholder approval if approval is required under applicable law or the rules of any stock exchange on which the Company is listed.

Non-Guarantee of Employment or Service.  Nothing in the Plan or in any Grant Agreement thereunder shall confer any right on an individual to continue in the service of the Company or shall interfere in any way with the right of the Company to terminate such service at any time with or without cause or notice.

Compliance with Securities Laws; Listing and Registration.  If at any time the Administrator or Board determines that the delivery of Common Stock under the Plan is or may be unlawful under the laws of any applicable jurisdiction, or federal or state securities laws, the right to exercise an Award or receive shares of Common Stock pursuant to an Award shall be suspended until the Administrator or Board determines that such


11


delivery is lawful.  The Company shall have no obligation to effect any registration or qualification of the Common Stock under federal or state laws.

The Company may require that a grantee, as a condition to exercise of an Award, and as a condition to the delivery of any share certificate, make such written representations (including representations to the effect that such person will not dispose of the Common Stock so acquired in violation of federal or state securities laws) and furnish such information as may, in the opinion of counsel for the Company, be appropriate to permit the Company to issue the Common Stock in compliance with applicable federal and state securities laws.  The stock certificates for any shares of Common Stock issued pursuant to this Plan may bear a legend restricting transferability of the shares of Common Stock unless such shares are registered or an exemption from registration is available under the Securities Act and applicable state securities laws.

No Trust or Fund Created.  Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company and a grantee or any other person.  To the extent that any grantee or other person acquires a right to receive payments from the Company pursuant to an Award, such right shall be no greater than the right of any unsecured general creditor of the Company.

Section 409A.  Unless the Adminstrator or Board expressly determines otherwise, Awards (and any amendmenst thereto) are intended to be exempt from Code Section 409A as stock rights or short-term deferrals and, accordingly, the terms of any Awards shall be construed and administered to preserve such exemption (including with respect to the time of payment following a lapse of restrictions applicable to an Award). To the extent that Section 409A applies to a particular Award granted under the Plan (notwithstanding the preceding sentence), then the terms of the Award shall be construed and administered to permit the Award to comply with Section 409A, including, if necessary, by delaying the payment of any Award payable upon separation from service to a Participant who is a “specified employee” (as defined in Code Section 409A and determined consistently for all of the Company’s arrangements that are subject to Code Section 409A), for a period of six months and one day after such Participant’s separation from service, and by construing any reference to “termination of employment” or the like to be a “separation from service” within the meaning of Code Section 409A.   In the event any person is subject to income inclusion, additional interest or taxes, or any other adverse consequences under Code Section 409A, then neither the Company, the Administrator, the Board nor its or their employees, designees, agents or contractors shall be liable to any Participant or other persons in connection with such adverse consequences under Code Section 409A.

No Fractional Shares.  No fractional shares of Stock shall be issued or delivered pursuant to the Plan.  The Administrator or Board shall determine whether cash, other Awards, or other property shall be issued or paid in lieu of any fractional shares or whether fractional shares or any rights to fractional shares shall be forfeited or otherwise eliminated.

Beneficiary.  A Participant may file with the Administrator or Board a written designation of a beneficiary on the form prescribed by the Administrator or Board and may, from time to time, amend or revoke the designation.  If no designated beneficiary survives the Participant, the Participant’s spouse, if any, shall be deemed to be the Participant’s beneficiary.  If the Participant does not have a spouse, the the executor or administrator of the Participant’s estate shall be deemed to be the Participant’s beneficiary.

Section 162(m).  The Plan is designed and intended, and all provisions shall be construed in a manner, to comply, to the extent applicable, with Code Section 162(m) and the regulations thereunder.  To the extent permitted by Code Section 162(m), the Administrator or Board shall have sole discretion to reduce or eliminate  payment of the amount of any Award which might otherwise become payable upon attainment of a Performance Goal.

Form of Communication.  Any election, application, claim, notice, or other communication required or permitted to be made by a Participant to the Administrator or Board or the Company shall be made in writing and in such form as the Company may prescribe.  Any communication shall be effective upon receipt by Berge Abajian, President, at berge@bergio.com.

Severability.  If any provision of the Plan is held to be invalid or unenforceable, the other provisions of the Plan shall not be affected.


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Governing Law.  The validity, construction and effect of the Plan, of Grant Agreements entered into pursuant to the Plan, and of any rules, regulations, determinations or decisions made by the Administrator or Board relating to the Plan or such Grant Agreements, and the rights of any and all persons having or claiming to have any interest therein or thereunder, shall be determined exclusively in accordance with applicable federal laws and the laws of the State of Wyoming without regard to its conflict of laws principles.

Effective Date; Termination Date.  The Plan is effective as of the date on which the Plan is adopted by the Board, subject to approval of the stockholders within twelve months before or after such date.  No Award shall be granted under the Plan after the close of business on the day immediately preceding the tenth anniversary of the effective date of the Plan.  Subject to other applicable provisions of the Plan, all Awards made under the Plan prior to such termination of the Plan shall remain in effect until such Awards have been satisfied or terminated in accordance with the Plan and the terms of such Awards.

 

Date Approved by the Board:__________________________________

 

Date Approved by the Stockholders:_____________________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


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EXHIBIT 99.1

 

Bergio International Inc. Officially Acquires GearBubble

Looks to Gain $20 Million in 2021 Gross Revenue from Purchase

 

FAIRFIELD, NJ / ACCESSWIRE / July 8, 2021- Bergio International Inc. (OTC PINK:BRGO), a global trailblazer in the jewelry design and manufacturing industry, officially acquires GearBubble’s assets for $3.162 million. The addition of 51% of GearBubble’s assets purports to increase BRGO’s gross sales, adding an additional estimated $20 million. With this purchase, alongside the acquisition of Aphrodite’s in February, the company is estimated to have a 5000% increase in gross revenue this year.

 

 

(Photo Credit: Bergio International)

 

GearBubble is a B2B e-commerce fulfillment platform that works to improve the customer experience through integration with Amazon, Etsy, and more. In 2020 alone, the company had $27 million in revenue and was profitable. Although GearBubble has sold jewelry in the past, the past inventory lacked quality and they did not have the right vendor to meet high demand. By joining BRGO, they will get access to high quality jewelry with stunning and unique designs for an affordable cost. Their demand will also be met due to Bergio’s vertical integration and control over the manufacturing and speed of production.

 

BRGO is a major competitor in the jewelry industry in design and manufacturing, but the acquisition of GearBubble looks to make the company a further authority in the e-commerce space. GearBubble gives them access to all of its B2B customers and in turn their B2C customers, which allows for a widened reach to an entirely new customer base.

 

The advantages do not end there. GearBubble also opens the doors to countless new product categories, especially in the gifting category. This allows BRGO to utilize the e-commerce technology from GearBubble- along with Aphrodite’s technology- to expand its footprint online to sell directly to consumers, especially in the bridal jewelry niche. The pandemic greatly impacted this segment with a spike in engagement ring sales, an increase in the overall ticket price, and a major shift to online shopping. The current online jewelry market only has three major websites selling diamond bridal jewelry direct to consumers. BRGO intends on not only joining, but also standing out in this specific industry. It will be the only vertically integrated company on the market, allowing for competitive pricing and a significantly higher quality. This expansion is expected to lead to exceptional and industry-shaking growth for BRGO.

 

The transaction between BRGO and GearBubble is a transformative one. Bergio International paid in cash and acquires 51% of the company’s assets with no lasting debt. GearBubble only furthers BRGO’s ascension to the top of the jewelry industry. With GearBubble, the company projects to increase its yearly revenue of 2021 to an additional $20 million, but that is not including Aphrodite’s nor BRGO’s profits. The trinity of GearBubble, Aphrodite’s, and BRGO will likely bring in $30 million for 2021. The year 2022 will be the first full year the three will have worked together, which is will have a powerful impact on profits for company.


Aphrodite’s is a fast-growing e-tailer for jewelry. ‘Aphrodite’s and GearBubble are just the beginning,’ says Berge Abajian, CEO of Bergio International. ‘We’re looking at other opportunities and our goal is to be the leader in the e-commerce jewelry space in 2022. Now that we have the top tech team in this arena, we’re looking forward to expanding Bergio e-commerce which will include Bridal and Fine Jewelry to compete with major e-commerce sites in the Fine Jewelry Industry. The advantage that we have is that we’re vertically integrated, which other sites have failed to provide to their customer base.’

 

BRGO is a company that prides itself on its individuality and fine jewelry. Every piece it crafts is created with the utmost care and individuality, ensuring it isn’t in the likeness of a previous piece of the company’s or its competitors’. Much like its gems, BRGO selects the companies with which it ingrates while being meticulous, careful, and client-oriented. Both Aphrodite’s and GearBubble are proposed to take BRGO’s profits and vision to even further heights this year and beyond.

 

For more information on GearBubble, please visit https://www.gearbubble.com.

 

About Bergio International, Inc.

The Bergio brand, the primary portfolio asset, is associated with high-quality, handcrafted, and individually designed pieces with a European sensibility, Italian craftsmanship, and a bold flair for the unexpected. Established in 1995, Bergio’s signature innovative design, coupled with extraordinary diamonds and precious stones, earned the company recognition as a highly sought-after purveyor of rare and exquisite treasures from around the globe. With family jewelry roots reaching back to the 1930s, founder, CEO, and designer Berge Abajian is a third-generation jeweler, blending superior knowledge in design and manufacturing to create unparalleled collections in craftsmanship and style. The Bergio brand features fine jewelry, silver fashion jewelry, bridal, couture, and leather accessories, ranging in price from $50 to $250,000. For further information, please visit www.bergio.com.

 

This press release includes forward-looking statements regarding our business strategy and plans as well as expectations of future growth, all of which are subject to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are not historical in nature and include those related to future financial and operating results, benefits, and synergies of the combined companies, statements concerning the Company’s outlook, pricing trends, and forces within the industry, the completion dates of capital projects, expected sales growth, cost reduction strategies, and their results, long-term goals of the Company and other statements of expectations, beliefs, future plans and strategies, anticipated events or trends, and similar expressions concerning matters that are not historical facts. These forward-looking statements are only predictions and may differ materially from actual results due to a variety of factors, including changes in the general economy; changes in demand for the Company’s products or in the cost and availability of its raw materials; the actions of its competitors; the success of our customers; technological change; changes in employee relations; government regulations; litigation, including its inherent uncertainty; difficulties in plant operations and materials; transportation, environmental matters; and other unforeseen circumstances. A number of these factors are discussed in the Company’s previous filings with the U.S. Securities and Exchange Commission, including those detailed under the caption ‘Risk Factors’ in our Annual Report for the year ended December 31, 2019 filed with the SEC. The Company disclaims any intention or obligation to update any forward-looking statements as a result of developments occurring after the date of this press release. The safe harbor for forward-looking statements contained in the Securities Litigation Reform Act of 1995 (the ‘Act’) protects companies from liability for their forward-looking statements if they comply with the requirements of the Act.

 

Media Contact

Lais Pontes Greene

(954) 960-6083

 

Investor Relations

John Guercio

(845) 216-3100

SOURCE: Bergio International Inc.

 

View source version on accesswire.com:

https://www.accesswire.com/654671/Bergio-International-Inc-Officially-Acquires-GearBubble.



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