UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

 

SCHEDULE 13D

 

 

 

Under the Securities Exchange Act of 1934

 

GREEN INNOVATIONS LTD.

(Name of Issuer)

 

Series A Preferred Stock, par value $0.0001 per share

Series B Preferred Stock, par value $0.0001 per share

(Title of Class of Securities)

 

39305T106

(CUSIP Number)

 

TCA Global Credit Master Fund, LP

P.O. Box 1043, 69 Dr. Roy’s Drive, George Town

Grand Cayman KY1-1102, Cayman Islands


345-914-4857

(Name, Address and Telephone Number of Person Authorized to

Receive Notices and Communications)

 

July 13, 2015

(Date of Event which Requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ☐

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

 

 

 

1

NAME OF REPORTING PERSON

 

TCA Global Credit Master Fund L.P. 

 

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

 

(a)

(b) ☐

 

3

 

SEC USE ONLY

 

4

SOURCE OF FUNDS*

 

OO (1)

 

5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

 

 

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Cayman Islands

 

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY EACH REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

297,500,000 (2)

 

8

SHARED VOTING POWER

 

0

 

9

SOLE DISPOSITIVE POWER

 

297,500,000 (2)

 

10

SHARED DISPOSITIVE POWER

 

0

 

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON

 

297,500,000 (2)

 

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES

 

 

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

100%

 

14

TYPE OF REPORTING PERSON (See Instructions)

 

IV

 

 

(1) TCA Global Credit Master Fund L.P. (“TCA Fund”) is a Cayman Islands Limited Partnership. On October 24, 2013, TCA Fund and Green Innovations Ltd., a Nevada corporation (the “Company” or the “Issuer”) entered into a Senior Secured Revolving Credit Facility Agreement (the “Credit Agreement”). On January 17, 2014, TCA Fund and the Company entered into Amendment No. 1 to the Credit Agreement (“Amendment No. 1”). On March 13, 2014, TCA Fund and the Company entered into Amendment No. 2 to the Credit Agreement (“Amendment No. 2” and together with Amendment No. 1 and the Credit Agreement, the “Transaction Documents”). On July 13, 2015, pursuant to that certain Assignment Agreement by and between TCA Fund and Jordan Serlin, a shareholder of the Company (“Serlin”), Serlin assigned to TCA Fund, (i) 4,750,000 shares of the Company’s Series A Preferred Stock, par value, $0.0001 per share (the “Series A Preferred”), and (ii) 250,000 shares of the Company’s Series B Preferred Stock, par value, $0.0001 per share (the “Series B Preferred” and together with the Series A Preferred, the “Shares”) in connection with the Transaction Documents.
   
(2) This includes 4,750,000 shares of Series A Preferred and 250,000 shares of Series B Preferred.  Each one share of Series A Preferred is entitled to ten (10) votes per share and each one share of Series B Preferred is entitled to one thousand (1,000) votes per share.  The investment manager of TCA Fund, TCA Fund Management Group (“TCA Management”), through its appointment by the General Partner of TCA Fund, holds sole voting and dispositive power over the Shares. Bob Press is the Chief Executive Officer of TCA Management.

 

  1  

 

 

Item 1 Security and Issuer.

 

The statement relates to 4,750,000 shares of the Company’s Series A Preferred and 250,000 shares of the Company’s Series B Preferred. The principal executive office of the Company is located at 3208 Chiquita Blvd. S., Suite 216, Cape Coral, FL.

 

Item 2 Identity and Background

 

The Statement is being filed by TCA Global Credit Master Fund L.P. a Cayman Islands limited partnership (“TCA Fund”).

 

TCA Fund’s address is as follows:

3960 Howard Hughes Parkway, Suite 500

Las Vegas, NV 89169

 

TCA Fund is a short duration, absolute return fund specializing in senior secured lending and advisory services to small, publicly listed companies predominately in the U.S., Canada, Western Europe and Australia.

 

During the last five years neither TCA Fund  nor any of its representatives has  (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which proceeding he was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

Item 3 Source and Amount of Funds or Other Consideration.

 

TCA Fund acquired the reported Shares of the Company as follows:

 

On October 24, 2013, TCA Fund and the Company entered into the Credit Agreement. On January 17, 2014, TCA Fund and the Company entered into Amendment No. 1. On March 13, 2014, TCA Fund and the Company entered into Amendment No. 2. On July 13, 2015, pursuant to that certain Assignment Agreement by and between Serlin and TCA Fund, Serlin, assigned to TCA Fund, 4,750,000 shares of Series A Preferred and 250,000 shares of Series B Preferred in connection with the Transaction Documents.

 

Item 4 Purpose of Transaction.

 

Except as disclosed below, TCA Fund does not have any current plans or proposals which relate to or would result in: (a) the acquisition of additional securities of the Issuer, or the disposition of securities of the Issuer; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of the Issuer; (f) any other material change in the Issuer’s business or corporate structure; (g) any change in the Issuer’s charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person; (h) causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to section 12(g)(4) of the Exchange Act; or (j) any action similar to any of those enumerated above.

 

TCA Fund and the Company have a current plan or proposal whereby an Acquisition and Plan of Merger Agreement (the “Agreement”) may be effectuated by and among (i) the Company, (ii) TCA GNIN Merger Sub, Inc., a Nevada corporation and wholly-owned subsidiary of the Company (the “Merger Sub”), (iii) Jeremy Ostrowski, Jocelyne Hughes-Ostrowski, Peter Crowley, and Joseph Abrams, individuals residing in Alberta, Canada, and (iv) Zomongo, Inc., an Alberta, Canada corporation (“Zomongo”), upon the achievement by the Company and Zomongo of the following conditions precedent: (a) Zomongo shall be audited by a United States Independent Registered Public Accounting Firm in good standing with the Public Company Accounting Oversight Board (“PCAOB”) and Zomongo shall be provided with such auditor’s consent to file the audited financial statements with the U.S. Securities and Exchange Commission, (b) the Company shall be audited by a United States Independent Registered Public Accounting Firm in good standing with the PCAOB and the Company shall be provided with such auditor’s consent to file the audited financial statements with the U.S. Securities and Exchange Commission, and (c) the Company shall have filed all required periodic reports and related filings in accordance with the Securities Exchange Act of 1934 and shall be deemed a SEC current reporting company with the OTC Markets trading platform (the “Merger Conditions”).

 

In accordance with the terms and conditions of the Agreement, upon completion of the foregoing Merger Conditions, Zomongo shall be merged with and into the Merger Sub at the Effective Time (as defined in the Agreement). At the Effective Time, the Merger Sub shall merge with Zomongo, and Zomongo shall continue as a wholly owned subsidiary of the Company and shall continue its corporate existence under the laws of the State of Nevada.

 

  2  

 

 

Item 5 Interest in Securities of the Issuer.

 

(a) As of the date hereof, TCA Fund holds 4,750,000 shares of Series A Preferred of the Company and 250,000 shares of Series B Preferred of the Company. Such amount represents 100% of the total issued and outstanding shares of the Company’s Series A Preferred and Series B Preferred as of the date hereof.  As of the date hereof, the Shares represent a majority of the voting equity of the Company.

 

(b) The Investment Manager of TCA Fund, TCA Management, holds sole voting and dispositive power over the Shares. Bob Press is the Chief Executive Officer of TCA Management.

 

(c) Other than disclosed below, there were no transactions by TCA Fund in the Issuer’s capital stock during the last 60 days:

 

(d) No other person is known to have the right to receive, or the power to direct the receipt of, dividends from, or the proceeds from the sale of, the securities of the Issuer owned by TCA Fund.

 

(e) Not applicable.

 

Item 6 Contracts, Agreements, Understandings or Relationships With Respect to Securities of the Issuer.

 

To the knowledge of TCA Fund, there are no contracts, arrangements, understandings or relationships (legal or otherwise), including but not limited to transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies between Mr. Press and/or any other person, with respect to any securities of the Company.

 

Item 7 Material to be Filed as Exhibits.

 

Exhibit   Description
1.   Form of Acquisition Agreement and Plan of Merger by and between the Company, TCA GNIN Merger Sub, Inc., Jeremy Ostrowski, Jocelyne Hughes-Ostrowski, Peter Crowley, and Joseph Abrams, and Zomongo, Inc.
2.   Form of Escrow Agreement

 

  3  

 

 

SIGNATURES

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

TCA GLOBAL CREDIT MASTER FUND LP
 

Date: March 23, 2018  
   
/s/ Bob Press  
Name: Bob Press  
Title: Chief Executive Officer  

 

 

4

 

 

Exhibit 1

 

ACQUISITION AGREEMENT AND PLAN OF MERGER

 

This ACQUISITION AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into on this ___ day of December, 2017, by and among Green Innovations, Ltd., a corporation organized and existing under the laws of the State of Nevada (the “Parent”), TCA Merger Sub, Inc., a corporation organized and existing under the laws of the State of Nevada and a wholly-owned subsidiary of the Parent (the “Merger Sub”), Jeremy Ostrowski, Jocelyne Hughes-Ostrowski, Peter Crowley, and Joseph Abrams, individuals residing in Alberta, Canada (together, the “Shareholders”), and Zomongo, Inc., a corporation organized and existing under the laws of Alberta, Canada (“Company”).

 

WITNESSETH:

 

WHEREAS , Parent is a corporation incorporated under the laws of the State of Nevada pursuant to Articles of Incorporation filed with the Nevada Secretary of State on July 1, 2008 (the “Articles of Incorporation”);

 

WHEREAS, the Merger Sub is a corporation incorporated under the laws of the State of Nevada pursuant to Articles of Incorporation filed with the Nevada Secretary of State on or about December 15, 2017 and is a wholly-owned subsidiary of Parent;

 

WHEREAS, Company is a corporation incorporated under the laws of the Province of Alberta, Canada, pursuant to Articles of Incorporation filed with the Province of Alberta, Canada on or about July 30, 2014;

 

WHEREAS, the Shareholders currently own all of the issued and outstanding shares of Common Stock of the Company;

 

WHEREAS, the board of directors of the Parent and the Merger Sub have each determined that a merger of Merger Sub with and into Company (the “Merger”), upon the terms and subject to the conditions set forth in this Agreement, is in the best interests of the Parent, and the Merger Sub, and as such, the respective boards of directors of each have approved the Merger;

 

WHEREAS, the Shareholders of Company have determined that the Merger, upon the terms and subject to the conditions set forth in this Agreement, is in the best interests of the Company and have approved the Merger;

 

WHEREAS, the Parent, Merger Sub, Shareholders and Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger, as well as prescribe various conditions precedent to the effectiveness of the Merger;

 

WHEREAS, the Parent, the Merger Sub, the Shareholders, the Company, and TCA Global Credit Master Fund LP, a limited partnership organized and existing under the laws of the Cayman Islands (“TCA”), have entered into that certain Escrow Agreement dated December 13, 2017 (substantially in the form attached hereto as Exhibit A , the “Escrow Agreement”), governing the effectiveness of the transactions contemplated hereunder;

 

WHEREAS, for federal income tax purposes, the parties intend that the Merger shall qualify as a reorganization under the provisions of Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended (the “Code”) and shall be a tax free exchange;

  

NOW, THEREFORE , in consideration of the representations, warranties, covenants and agreements contained herein, the parties agree as follows:

 

     

 

 

ARTICLE I.

DEFINITIONS

 

When used in this Agreement (and any Exhibits and Schedules in which terms are not otherwise defined), the following terms shall have the following meanings:

 

1.01 Common Stock . “Common Stock” shall mean the outstanding shares of common stock, $0.0001 par value, of Parent or Merger Sub, as context dictates.

 

1.02 Articles of Merger . “Articles of Merger” shall mean Articles of Merger in substantially the form attached to this Agreement as Exhibit B and to be filed with the Secretary of State of the State of Nevada.

 

1.03 Closing . “Closing” and “Closing Date” shall mean the closing of the transactions contemplated by this Agreement.

 

1.04 Effective Time . “Effective Time” shall mean the date on which the Articles of Merger are properly filed with the Secretary of State of the State of Nevada, as required under the applicable provisions of the law of such jurisdiction, or at such other time as is permissible in accordance with the Nevada Revised Statutes (“NRS”).

 

1.05 Liens . “Lien” shall mean 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 statute or other law.

 

1.06 Company Shares . “Company Share(s)” shall mean all of the shares of capital stock of Zomongo, Inc., as set forth on Schedule I attached hereto.

 

1.07 Material Adverse Change; Material Adverse Effect . “Material Adverse Change” or “Material Adverse Effect” means, when used in connection with Company, Parent or Merger Sub, any change or effect that either individually or in the aggregate with all other such changes or effects is materially adverse to the business, assets, properties, condition (financial or otherwise) or results of operations of such party taken as a whole.

 

1.08 Person . “Person” means an individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity.

 

1.09 Subsidiary . A “Subsidiary” of any person means another person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, fifty percent (50%) or more of the equity interests) is owned directly or indirectly by such first person.

  

1.10 Surviving Corporation . “Surviving Corporation” shall have the meaning set forth in Section 2.01.

 

1.11 Tax Return . “Tax Return” shall include all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns (including Form 1099 and partnership returns filed on Form 1065, as applicable) required to be supplied to a Tax authority relating to Taxes.

 

ARTICLE II.

THE MERGER

 

2.01 The Merger . Upon the terms and subject to the conditions set forth in this Agreement and the Articles of Merger and in accordance with the NRS, Company shall be merged with and into Merger Sub at the Effective Time. At the Effective Time, the Merger Sub shall merge with Company, and Company shall continue as a wholly owned subsidiary of the Parent and shall continue its corporate existence under the laws of the State of Nevada (the “Surviving Corporation”).

 

2.02 Issuance of Promissory Note . In consideration of TCA causing the Shareholders to be issued and receive capital stock of the Parent in an amount equal to ninety percent (90%) of the issued and outstanding capital stock of the Parent at the Effective Time (as defined herein), the Company and the Company Subsidiaries (as defined herein) hereby promise to pay TCA five hundred thousand dollars ($500,000) in accordance with the terms and conditions of that certain Promissory Note attached hereto as Exhibit C .

 

  2  

 

 

2.03 Effective Time . The Merger shall become effective on the date and at the time the Articles of Merger are filed with the Secretary of State of Nevada in accordance with provisions of the NRS, or at such other time as is permissible in accordance with the NRS. The time at which the Merger shall become effective as aforesaid is referred to hereinafter as the “Effective Time.”

 

2.04 Closing . The closing of the Merger (the “Closing”) shall occur concurrently with the Effective Time (the “Closing Date”). The Closing shall occur at the offices of Lucosky Brookman LLP, 101 Wood Avenue South, 5 th Floor, Woodbridge, NJ, 08830, unless another place is agreed to in writing by the parties hereto.

 

2.05 Manner and Basis of Converting Shares .

 

(a) Each Company Share that shall be outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive one share of Common Stock of the Merger Sub, which will immediately thereafter be exchanged for that certain amount of capital stock of the Parent, so that at the Effective Time, Parent shall be the holder of all of the issued and outstanding shares of Company and the Shareholders shall have received ninety percent (90%) of the issued and outstanding capital stock of the Parent owned immediately prior to the Effective Time as set forth on Schedule II.

  

(b)  Prior to the Effective Time, the shareholders of the Merger Sub shall surrender certificates, if applicable, evidencing one hundred (100%) percent of the Merger Sub’s Common Stock.  As of the Effective Time, all Common Stock of the Merger Sub issued and outstanding immediately prior to the Effective Time shall no longer be outstanding and shall automatically be cancelled and retired and exchanged for shares of capital stock of the Parent and simultaneously therewith the Parent will issue and deliver ninety percent (90%) of the issued and outstanding capital stock of the Parent to the Merger Sub representing the shares to be issued in exchange for one hundred percent (100%) of the Company Shares. 

 

(c) The Company Shares, which immediately prior to the Effective Time constitute all of the issued and outstanding shares of common stock of Company beneficially owned by the stockholders listed on its books and records, shall, by virtue of the Merger and without any action on the part of the holders thereof, be converted into the right to receive ninety percent (90%) of the issued and outstanding shares of capital stock of the Parent.  The Merger Sub will issue to the Company’s Shareholders, as of the Effective Time, ninety percent (90%) of the issued and outstanding shares of the Parent’s capital stock as set forth on Schedule II, in exchange for all of the Company Shares.

 

(d) Parent shall issue to each Majority Shareholder the number of shares of Common Stock of the Parent that such stockholder shall be entitled to receive as set forth in Section 2.04 (b) hereof and on Schedule II.  To the extent that any certificates evidencing shares of Company common stock were issued prior to the Effective Time, each such certificate or an affidavit and indemnification in form reasonably acceptable to counsel for the Parent stating that such stockholder has lost such certificate(s) must be surrendered or delivered to Parent, as the case may be, and all such shares shall be deemed at and after the Effective Time to have no value.

 

2.06 Effective Date of Merger . As soon as practicable following the satisfaction or waiver of the conditions set forth in Article IV, the parties shall file the Articles of Merger with the Secretary of State of the State of Nevada executed in accordance with the relevant provisions of the NRS and shall make all other filings or recordings required thereunder. The Merger shall become effective at such date as the Articles of Merger are duly filed with the Secretary of State of Nevada, or at such other time as is permissible in accordance with the NRS and Company shall agree (the time the Merger becomes effective being the “Effective Time of the Merger”). Parent shall use reasonable efforts to have the Closing Date and the Effective Time of the Merger to be the same day.

 

2.07 Effects of the Merger . The Merger shall have the effects set forth in the applicable provisions of the NRS.

 

2.08 Articles of Incorporation; Bylaws; Purposes .

 

(a) The Articles of Incorporation of the Parent in effect immediately prior to the Effective Time of the Merger shall be the Articles of Incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law.

 

  3  

 

  

(b) The Bylaws of the Parent in effect at the Effective Time of the Merger shall be the Bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law.

 

(c) The purposes of the Surviving Corporation and the total number of its authorized common stock shall be as set forth in the Certificate of Incorporation of the Parent in effect immediately prior to the Effective Time of the Merger until such time as such purposes and such number may be amended as provided in the Certificate of Incorporation of the Surviving Corporation and by applicable law.

 

ARTICLE III.

EFFECT OF THE MERGER ON THE COMMON STOCK

AND THE GOVERNANCE OF THE CONSTITUENT CORPORATIONS

 

3.01 Effect on Common Stock . As of the Effective Time of the Merger, by virtue of the Merger and without any action on the part of the Shareholders:

  

(a) Exchange . Each Company Share issued and outstanding immediately prior to the Effective Time of the Merger shall be converted so that approximately one (1) share of Merger Sub’s Common Stock is issued for each one Company Share held (the “Merger Consideration”) and shall subsequently be exchanged for ninety percent (90%) of the issued and outstanding shares of Parent’s capital stock. For purposes of illustration, the Shareholders currently own 28,950,000 of Company Shares which will be converted on a pro-rata basis in exchange for 28,950,000 of the Merger Sub’s Common Stock and subsequently an issuance of capital stock of the Parent to the Shareholders equal to ninety percent (90%) of the Parent.

 

(b) Stock Options and Warrants . As of the date hereof, the Company has no outstanding options, warrants, convertible securities, or other rights to purchase or be issued Company Shares.

 

(c) Fractional Stock . No fractional shares of Common Stock shall be issued in the Merger. If the product of the number of shares a Majority Shareholder holds immediately prior to the Closing would result in the issuance of a fractional share of Merger Sub’s Common Stock, that product will be rounded down to the nearest whole number of shares of Merger Sub’s Common Stock if it is equal to or less than the fraction of one-half (.5) of one share or round up to the nearest whole number of shares of Merger Sub’s Common Stock if it is greater than the fraction of one-half (.5) of one share of Merger Sub’s Common Stock.

 

(d) Transaction Disclosure . The officers and directors of Company existing prior to the Effective Time shall cooperate and sign an undertaking to assist the Surviving Corporation in all respects disclosing the transactions set forth herein and other information required by the Securities Act of 1933, as amended (the “Securities Act”) and the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

(e) No Further Certificates . There shall be no further transfer on the records of Company of certificates representing Company Shares and there shall be no further transfer on the records of the Merger Sub of certificates representing securities of the Merger Sub following the Effective Time of the Merger. If any certificate for shares of Common Stock is to be issued in a name other than that in which the certificate for Merger Sub’s or Company’s securities surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed, or otherwise in proper form for transfer and that the person requesting such exchange shall pay to Parent or its transfer agent any transfer or other taxes or other costs required by reason of the issuance of certificates for such shares of Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of Parent or its transfer agent that all taxes have been paid.

  

(f) No Further Ownership Rights in Company Shares . All shares of Common Stock of the Parent issued upon the surrender of Company Shares in accordance with the terms of this Article III shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to Company Shares.

 

(g) Governance . At the Effective Time, the board of directors of the Parent shall consist of (i) Jeremy Ostrowski, (ii) Jocelyn Ostrowski, and (iii) one member of the board of directors appointed by TCA.

 

  4  

 

 

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES

 

4.01 Representations and Warranties of Company . Except as set forth in the disclosure schedule delivered by the Company to the Parent at the time of execution of this Agreement, to the best of the Company’s knowledge the Company hereby represents and warrants to Parent as follows:

 

(a) Organization, Standing and Corporate Power . Company is a corporation duly incorporated, validly existing and in good standing under the laws of Alberta, Canada and has the requisite organizational power and authority to carry on its business as now being conducted. Company is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed (individually or in the aggregate) would not have a Material Adverse Effect.

 

(b) Subsidiaries . Zomongo.TV Corp. and Zomongo.TV USA Inc. are the only subsidiaries of Company and the ownership of the subsidiaries are set forth on Exhibit D hereto (the “Company Subsidiaries”).

 

(c) Capital Structure . The issued and outstanding shares of Company consists of 28,950,000 shares of capital stock that are held by four (4) shareholders as listed on the Company’s books and records and set forth on Schedule I hereto. Company has no other securities of any nature issued, reserved for issuance or outstanding. All outstanding Company Shares are duly authorized, validly issued, fully paid and non-assessable and not subject to preemptive rights.

 

(d) Authority; Non-contravention . Company has the requisite power and authority to enter into this Agreement and to consummate the Merger. The execution and delivery of this Agreement by Company and the consummation by Company of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Company. This Agreement has been duly executed and delivered by Company and constitutes a valid and binding obligation of Company, enforceable against Company in accordance with its terms. The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated by this Agreement and compliance with the provisions hereof will not, conflict with, or result in any breach or violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of or “put” right with respect to any obligation or to loss of a material benefit under, or result in the creation of any material lien upon any of the properties or assets of Company, except, with respect to this Agreement, for the filing of the Articles of Merger with the Secretary of State of Nevada.

  

(e) Litigation; Labor Matters; Compliance with Laws .

 

(i) To the knowledge of Company’s officers or directors, there is no suit, action or proceeding or investigation pending or threatened against or affecting Company or any basis for any such suit, action, proceeding or investigation that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or prevent, hinder or materially delay the ability of Company to consummate the transactions contemplated by this Agreement, nor is there any judgment, decree, injunction, rule or order of any governmental entity or arbitrator outstanding against Company having, or which, insofar as reasonably could be foreseen by Company, in the future could have, a Material Adverse Effect.

 

(ii) To the knowledge of Company’s officers or directors, the conduct of the business of Company complies with all statutes, laws, regulations, ordinances, rules, judgments, orders, decrees or arbitration awards applicable thereto.

 

4.02 Representations and Warranties of Parent and Merger Sub . Except as set forth in the disclosure schedule delivered by Parent to Company at the time of execution of this Agreement, to the best of the Parent’s and Merger Sub’s knowledge, the Parent and Merger Sub each represent and warrant to Company as follows:

 

  5  

 

 

(a) Organization, Standing and Corporate Power . Parent and Merger Sub are (or at Closing will be) duly incorporated, validly existing and in good standing under the laws of the State of Nevada and each has the requisite corporate power and authority to carry on its business as now being conducted. Parent and Merger Sub are duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed (individually or in the aggregate) would not have a Material Adverse Effect with respect to Parent.

 

(b) Subsidiaries .

 

(i) The Parent has no Subsidiary other than the Merger Sub. Merger Sub is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. The Merger Sub was formed solely to effectuate the Merger and has not conducted any business operations since its organization. The Parent has delivered or made available to Company complete and accurate copies of the charter, bylaws or other organizational documents of the Merger Sub. The Merger Sub has no assets, it has no liabilities or other obligations, and it is not in default under or in violation of any provision of its charter, bylaws or other organizational documents. All shares of the Merger Sub are owned by the Parent free and clear of any restrictions on transfer (other than restrictions under the Securities Act and state securities laws), claims, security interests, options, warrants, rights, contracts, calls, commitments, equities and demands. There are no outstanding or authorized options, warrants, rights, agreements or commitments to which the Parent or the Merger Sub is a party or which are binding on any of them providing for the issuance, disposition or acquisition of any capital stock of the Merger Sub (except as contemplated by this Agreement). There are no outstanding stock appreciation, phantom stock or similar rights with respect to the Merger Sub. There are no voting trusts, proxies or other agreements or understandings with respect to the voting of any capital stock of the Merger Sub.

 

(ii) At all times from July 1, 2008 through the date of this Agreement, the business and operations of the Parent have been conducted exclusively through the Parent.

 

(iii) The Parent does not control directly or indirectly or have any direct or indirect participation or similar interest in any corporation, partnership, limited liability company, joint venture, trust or other business association which is not a Subsidiary.

 

(c) Capital Structure . The authorized capital stock of Parent consists of (i) 150,000,000 shares of common stock, $0.0001 par value, of which 149,236,632 shares are issued and outstanding as of the date hereof, (ii) 5,250,000 shares of preferred stock, $0.0001 par value, of which 4,750,000 shares of Series A Preferred Stock are issued and outstanding and 250,000 shares of Series B Preferred Stock are issued and outstanding. There are no outstanding bonds, debentures, notes or other indebtedness or other securities of Parent having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of Parent may vote. There are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which Parent is a party or by which it is bound obligating Parent to issue, deliver or sell, or cause to be issued, delivered or sold, additional Common Stock of Parent or other equity or voting securities of Parent or obligating Parent to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking.  There are no outstanding contractual obligations, commitments, understandings or arrangements of Parent to repurchase, redeem or otherwise acquire or make any payment in respect of any Common Stock of the Parent or any other securities of Parent. There are no agreements or arrangements pursuant to which Parent is or could be required to register Parent’s Common Stock or other securities under the Securities Act or other agreements or arrangements with or among any holders of Parent or with respect to any securities of Parent. The official shareholders report delivered to Company from Parent’s transfer agent is complete and accurate in all respects.

 

  6  

 

 

(d) Authority; Non-contravention . Parent, and Merger Sub have all requisite authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by Parent and Merger Sub and the consummation by Parent and Merger Sub of the transactions contemplated by this Agreement have been (or at Closing will have been) duly authorized by all necessary corporate action on the part of Parent and Merger Sub. This Agreement has been duly executed and delivered by and constitutes a valid and binding obligation of Parent, and Merger Sub, enforceable in accordance with its terms. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated by this Agreement and compliance with the provisions of this Agreement will not, conflict with, or result in any breach or violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of or “put” right with respect to any obligation or to loss of a material benefit under, or result in the creation of any lien upon any of the properties or assets of Parent or Merger Sub under, (i) the Articles of Incorporation or bylaws of Parent or Merger Sub or the comparable charter or organizational documents of any other Subsidiary of Parent or Merger Sub, (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to Parent, Merger Sub or their respective properties or assets, or (iii) subject to the governmental filings and other matters referred to in the following sentence, any judgment, order, decree, statute, law, ordinance, rule, regulation or arbitration award applicable to Parent, Merger Sub or their respective properties or assets, other than, in the case of clauses (ii) and (iii), any such conflicts, breaches, violations, defaults, rights, losses or liens that individually or in the aggregate could not have a Material Adverse Effect with respect to Parent or Merger Sub or could not prevent, hinder or materially delay the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement. No consent, approval, order or authorization of, or registration, declaration or filing with, or notice to, any governmental entity is required by or with respect to Parent or Merger Sub in connection with the execution and delivery of this Agreement by Parent or Merger Sub or the consummation by Parent or Merger Sub, as the case may be, of any of the transactions contemplated by this Agreement, except for the filing of the Articles of Merger with the Secretary of State of the State of Nevada, as required, and such other consents, approvals, orders, authorizations, registrations, declarations, filings or notices as may be required under the “blue sky” laws of various states.

 

(e) SEC Documents; Undisclosed Liabilities . Except as set forth in disclosure schedule 6.02(f), Parent has filed all reports, schedules, forms, statements and other documents as required by the U.S. Securities and Exchange Commission (the “SEC”) and Parent has delivered or made available to Company all reports, schedules, forms, statements and other documents filed with the SEC (collectively, and in each case including all exhibits and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). The Parent SEC Documents complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC documents, and none of the Parent SEC Documents (including any and all consolidated financial statements included therein) as of such date 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. Except to the extent revised or superseded by a subsequent filing with the SEC (a copy of which has been provided to Company prior to the date of this Agreement), none of the Parent SEC Documents contains any untrue statement of a material fact or omits to state any 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. The consolidated financial statements of Parent included in such Parent SEC Documents comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with generally accepted accounting principles (except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present the consolidated financial position of Parent and its consolidated subsidiaries as of the dates thereof and the consolidated results of operations and changes in cash flows for the periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments as determined by Parent’s independent accountants). Except as set forth in the Parent SEC Documents, at the date of the most recent audited financial statements of Parent included in the Parent SEC Documents, neither Parent nor any of its subsidiaries had, and since such date neither Parent nor any of such subsidiaries has incurred, any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect with respect to Parent.

  

(f) Absence of Certain Changes or Events . Except as disclosed in the Parent SEC Documents, since the date of the most recent financial statements included in the Parent SEC Documents, Parent and Merger Sub have conducted their business only in the ordinary course consistent with past practice in light of its current business circumstances, and there is not and has not been: (i) any Material Adverse Change with respect to Parent or Merger Sub; (ii) any condition, event or occurrence which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or give rise to a Material Adverse Change with respect to Parent or Merger Sub; (iii) any event which, if it had taken place following the execution of this Agreement, would not have been permitted by Section 7.01 without the prior consent of Company; or (iv) any condition, event or occurrence which could reasonably be expected to prevent, hinder or materially delay the ability of Parent and Merger Sub to consummate the transactions contemplated by this Agreement.

 

  7  

 

 

(g) Litigation; Labor Matters; Compliance with Laws .

 

(i) There is no suit, action or proceeding or investigation pending or threatened against or affecting Parent or Merger Sub or any basis for any such suit, action, proceeding or investigation that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect with respect to Parent or Merger Sub or prevent, hinder or materially delay the ability of Parent or Merger Sub to consummate the transactions contemplated by this Agreement, nor is there any judgment, decree, injunction, rule or order of any governmental entity or arbitrator outstanding against Parent or Merger Sub having, or which, insofar as reasonably could be foreseen by Parent or Merger Sub, in the future could have, any such effect.

 

(ii) Parent and Merger Sub are not a party to, or bound by, any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization, nor is it the subject of any proceeding asserting that it has committed an unfair labor practice or seeking to compel it to bargain with any labor organization as to wages or conditions of employment nor is there any strike, work stoppage or other labor dispute involving it pending or, to its knowledge, threatened, any of which could have a Material Adverse Effect with respect to Parent.

(iii) The conduct of the business of Parent and Merger Sub complies with all statutes, laws, regulations, ordinances, rules, judgments, orders, decrees or arbitration awards applicable thereto.

 

(h) Tax Returns and Tax Payments. Parent and Merger Sub have timely filed all tax returns required to be filed by them, have paid all taxes shown thereon to be due and have provided adequate reserves in their financial statements for any taxes that have not been paid, whether or not shown as being due on any returns. No material claim for unpaid taxes have been made or become a lien against the property of Parent or Merger Sub or is being asserted against Parent or Merger Sub, no audit of any tax return of Parent or Merger Sub is being conducted by a tax authority, and no extension of the statute of limitations on the assessment of any taxes has been granted by Parent or Merger Sub and is currently in effect.

  

(i) Environmental Matters . Parent and Merger Sub are in compliance with all applicable Environmental Laws except for such violation thereof would not have a Material Adverse Effect. “Environmental Laws” means all applicable federal, state and local statutes, rules, regulations, ordinances, orders, decrees and common law relating in any manner to contamination, pollution or protection of human health or the environment, and similar state laws.

 

(j) Material Contract Defaults . Parent and Merger Sub are not, or have not, received any notice or have any knowledge that any other party is, in default in any respect under any Material Contract; and there has not occurred any event that with the lapse of time or the giving of notice or both would constitute such a material default.  For purposes of this Agreement, a “Material Contract” means any contract, agreement or commitment that is effective as of the Closing Date to which Parent or Merger Sub is a party (i) with expected receipts or expenditures in excess of $100,000, (ii) requiring Parent or Merger Sub to indemnify any person, (iii) granting exclusive rights to any party, (iv) evidencing indebtedness for borrowed or loaned money in excess of $100,000 or more, including guarantees of such indebtedness, or (v) which, if breached by Parent or Merger Sub in such a manner would (A) permit any other party to cancel or terminate the same (with or without notice of passage of time) or (B) provide a basis for any other party to claim money damages (either individually or in the aggregate with all other such claims under that contract) from Parent or Merger Sub or (C) give rise to a right of acceleration of any material obligation or loss of any material benefit under any such contract, agreement or commitment.

 

(k) Properties . Parent and Merger Sub have good, clear and marketable titles to all the tangible properties and tangible assets reflected in the latest balance sheet as being owned by Parent or Merger Sub or acquired after the date thereof which are, individually or in the aggregate, material to Parent’s or Merger Sub’s business (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all material liens.

 

  8  

 

 

(l) Trademarks and Related Contracts .

 

(i) Except as disclosed in this Agreement, Parent and/or Merger Sub (i) owns or has the right to use, free and clear of all Liens, claims and restrictions, all patents, trademarks, service marks, trade names, copyrights, licenses and rights with respect to the foregoing used in or necessary for the conduct of its business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any Person under or with respect to any of the foregoing and (ii) is not obligated or under any liability to make any payments by way of royalties, fees or otherwise to any owner or licensor of, or other claimant to, any patent, trademark, service mark, trade name, copyright or other intangible asset, with respect to the use thereof or in connection with the conduct of its business or otherwise.

  

(ii) Parent or Merger Sub owns and has the unrestricted right to use all trade secrets, if any, including know-how, negative know-how, formulas, patterns, programs, devices, methods, techniques, inventions, designs, processes, computer programs and technical data and all information that derives independent economic value, actual or potential, from not being generally known by competitors (collectively, “ intellectual property ”) required for or incident to the development, operation and sale of all products and services sold by Parent, free and clear of any right, Lien or claim of others; provided , however , the possibility exists that other Persons, completely independent of Parent, Merger Sub or its employees or agents, could have developed intellectual property similar or identical to that of Parent or Merger Sub. Except as disclosed in the Agreement, the officers and directors of Parent and Merger Sub are not aware of any such development of substantially identical trade secrets or technical information by others.

 

(m) Certain Employee Payments . Parent and Merger Sub are not parties to any employment agreement which could result in the payment to any current, former or future director or employee of Parent or Merger Sub of any money or other property or rights or accelerate or provide any other rights or benefits to any such employee or director as a result of the transactions contemplated by this Agreement, whether or not (i) such payment, acceleration or provision would constitute a “parachute payment” (within the meaning of Section 280G of the Code), or (ii) some other subsequent action or event would be required to cause such payment, acceleration or provision to be triggered.

 

(n) Financial Statements . The audited financial statements and unaudited interim financial statements of the Parent included in the SEC Documents (i) complied as to form in all material respects with applicable accounting requirements and, as appropriate, the published rules and regulations of the SEC with respect thereto when filed, (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby (except as may be indicated therein or in the notes thereto, and in the case of quarterly financial statements, as permitted by Form 10-Q under the Exchange Act), (iii) fairly present the consolidated financial condition, results of operations and cash flows of the Parent as of the respective dates thereof and for the periods referred to therein, and (iv) are consistent with the books and records of the Parent.

 

(o) Undisclosed Liabilities . Neither of the Parent nor the Merger Sub has any liability (whether known or unknown, whether absolute or contingent, whether liquidated or unliquidated and whether due or to become due), except for (a) liabilities shown on the balance sheet contained in the most recent Form 10-K and Form 10-Q filed with the SEC, (b) liabilities which have arisen since the date of the balance sheet contained in the most recent Form 10-Q filed with the SEC in the ordinary course of business which do not exceed $5,000.00 in the aggregate and (c) contractual and other liabilities incurred in the ordinary course of business which are not required by GAAP to be reflected on a balance sheet.

 

(p) Powers of Attorney . There are no outstanding powers of attorney executed on behalf of the Parent or the Merger Sub.

  

(q) Certain Business Relationships with Affiliates . No Affiliate of the Parent or of the Merger Sub (a) owns any property or right, tangible or intangible, which is used in the business of the Parent or Merger Sub, (b) has any claim or cause of action against the Parent or Merger Sub, or (c) owes any money to, or is owed any money by, the Parent or Merger Sub.

 

  9  

 

 

ARTICLE V.

ADDITIONAL AGREEMENTS

 

5.01 Access to Information; Confidentiality .

 

(a) Each party hereto shall, and shall cause its officers, employees, counsel, financial advisors and other representatives to, afford to any other party and its representatives reasonable access during normal business hours during the period prior to the Effective Time of the Merger to its properties, books, contracts, commitments, personnel and records and, during such period, the parties shall, and shall cause each of its officers, employees and representatives to, furnish promptly to any other party all information concerning its business, properties, financial condition, operations and personnel as such other party may from time to time reasonably request. For the purposes of determining the accuracy of the representations and warranties of each party set forth herein and compliance by each party of its obligations hereunder, during the period prior to the Effective Time of the Merger, each party shall provide each other party and its representatives with reasonable access during normal business hours to its properties, books, contracts, commitments, personnel and records as may be necessary to enable each party to confirm the accuracy of the representations and warranties of each other party set forth herein and compliance by each party of their obligations hereunder, and, during such period, cause its, officers, employees and representatives to, furnish promptly to each party upon its request (i) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities laws and (ii) all other information concerning its business, properties, financial condition, operations and personnel as such other party may from time to time reasonably request. Except as required by law, each party will hold, and will cause its respective directors, officers, employees, accountants, counsel, financial advisors and other representatives and affiliates to hold, any nonpublic information concerning another party in strict confidence.

 

(b) No investigation pursuant to this Section 8.01 shall affect any representations or warranties of the parties herein or the conditions to the obligations of the parties hereto.

 

5.02 Best Efforts . Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement. The parties hereto will use their best efforts and cooperate with one another (i) in promptly determining whether any filings are required to be made or consents, approvals, waivers, permits or authorizations are required to be obtained (or, which if not obtained, would result in an event of default, termination or acceleration of any agreement or any put right under any agreement) under any applicable law or regulation or from any governmental authorities or third parties, including parties to loan agreements or other debt instruments and including such consents, approvals, waivers, permits or authorizations as may be required to transfer the assets and related liabilities of Company to the Surviving Corporation in the Merger, in connection with the transactions contemplated by this Agreement, and (ii) in promptly making any such filings, in furnishing information required in connection therewith and in timely seeking to obtain any such consents, approvals, permits or authorizations. The parties hereto shall mutually cooperate in order to facilitate the achievement of the benefits reasonably anticipated from the Merger.

 

5.03 Public Announcements . The parties hereto will consult with each other before issuing, and provide each other the opportunity to review and comment upon, any press release or other public statements with respect to the transactions contemplated by this Agreement and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable law or court process. The parties have to agree that the initial press release or releases to be issued with respect to the transactions contemplated by this Agreement shall be mutually agreed upon prior to the issuance thereof except as may be required by applicable law or court process.

 

5.04 Expenses . All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses.

 

  10  

 

 

5.05 No Solicitation . No party shall authorize or permit any of its officers, directors, agents, representatives, or advisors to (a) solicit, initiate or encourage or take any action to facilitate the submission of inquiries, proposals or offers from any person relating to any matter concerning any merger, consolidation, business combination, recapitalization or similar transaction involving Company, Parent or Merger Sub, other than the transaction contemplated by this Agreement or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or delay the Merger or which would or could be expected to dilute the benefits to Company of the transactions contemplated hereby. The parties hereto will immediately cease and cause to be terminated any existing activities, discussions and negotiations with any parties conducted heretofore with respect to any of the foregoing.

 

ARTICLE VI.

INDEMNIFICATION

 

6.01 Indemnification by TCA Global Credit Master Fund LP .  TCA Global Credit Master Fund LP (“TCA”) shall indemnify the Company in respect of, and hold it harmless against any actual and out of pocket loss (“Damages”) incurred or suffered by the Company in an amount not to exceed five hundred thousand dollars ($500,000.00), resulting from:

 

(a) any misrepresentation or breach of warranty of the Parent or Merger Sub contained in this Agreement;

 

(b) any claim by a shareholder or former shareholder of Parent or Merger Sub, or any other person or entity, seeking to assert, based upon: (i) ownership or rights to ownership of any shares of capital stock of the Parent or Merger Sub; (ii) any rights under the Articles of Incorporation or bylaws of the Parent or Merger Sub; or (iii) any claim that his, her or its shares of capital stock of the Parent or Merger Sub were wrongfully repurchased cancelled or reissued by Parent.

 

TCA expressly acknowledges and agrees that its indemnification pursuant to this Section is wholly independent of any other indemnity owed by any other party or any other remedy available to the Company (as applicable, the “Company Indemnitee”). The Company Indemnitee may enforce the indemnity provided herein independently of any other remedy the Company Indemnitee may have against any other party at any time, and it shall not be necessary for the Company Indemnitee to proceed upon or against and/or exhaust any other remedy before proceeding to enforce the indemnity provided herein. TCA expressly waives any right to require the Company Indemnitee to proceed against any other party and agrees that Company Indemnitee may proceed against TCA or any other party in such order as Company Indemnitee shall determine in its sole and absolute discretion. The Company Indemnitee may file a separate action or actions against TCA, whether action is brought or prosecuted with respect to or against any other Person, or whether any other Person is joined in any such action or actions.

 

6.02 Notice of Indemnification . In the event that the Company Indemnitee shall threaten, assert or institute against TCA any claim or demand in respect of which payment may be sought, including, without limitation, pursuant to Section 6.01 hereof, the Company Indemnitee shall promptly cause written notice of the assertion of any such claim or demand (a “Company Indemnitee Claim”) of which it has knowledge to be forwarded to TCA in accordance with this Section 6.02.  Any notice of a Company Indemnitee Claim shall state specifically the provision with respect to which the Company Indemnitee Claim is made, the facts giving rise to such alleged basis for the Company Indemnitee Claim, and the amount of the liability asserted against TCA.  Within ten (10) days of the receipt of such written notice, TCA shall notify the Company Indemnitee in writing of his intent to contest the Company Indemnitee Claim or to accept liability thereunder. In the event that no written notice is received by the Company Indemnitee within ten (10) days of the original receipt by TCA of the written notice of the Company Indemnitee Claim, TCA hereby acknowledge and agree to accept liability as proposed in the Company Indemnitee Claim.

 

6.03 Indemnification by the Company . The Company shall indemnify TCA in respect of, and hold it harmless against any Damages incurred or suffered by TCA in an amount not to exceed five hundred thousand dollars ($500,000.00), resulting from:

 

(a) any misrepresentation or breach of warranty of the Company or the Shareholders contained in this Agreement;

 

(b) any claim by a shareholder or former shareholder of the Company, or any other person or entity, seeking to assert, based upon: (i) ownership or rights to ownership of any shares of capital stock of the the Company; (ii) any rights under the Articles of Incorporation or bylaws of the Company; or (iii) any claim that his, her or its shares of capital stock of the Company were wrongfully repurchased cancelled or reissued by the Company.

 

  11  

 

 

The Company expressly acknowledges and agrees that its indemnification pursuant to this Section is wholly independent of any other indemnity owed by any other party or any other remedy available to TCA (as applicable, the “TCA Indemnitee”). The TCA Indemnitee may enforce the indemnity provided herein independently of any other remedy the TCA Indemnitee may have against any other party at any time, and it shall not be necessary for the TCA Indemnitee to proceed upon or against and/or exhaust any other remedy before proceeding to enforce the indemnity provided herein. The Company expressly waives any right to require the TCA Indemnitee to proceed against any other party and agrees that TCA Indemnitee may proceed against the Company or any other party in such order as the TCA Indemnitee shall determine in its sole and absolute discretion. The TCA Indemnitee may file a separate action or actions against the Company, whether action is brought or prosecuted with respect to or against any other Person, or whether any other Person is joined in any such action or actions.

 

6.04 Notice of Indemnification . In the event that the TCA Indemnitee shall threaten, assert or institute against the Company any claim or demand in respect of which payment may be sought, including, without limitation, pursuant to Section 6.03 hereof, the TCA Indemnitee shall promptly cause written notice of the assertion of any such claim or demand (an “TCA Indemnity Claim”) of which it has knowledge to be forwarded to the Company in accordance with this Section 6.04.  Any notice of an TCA Indemnity Claim shall state specifically the provision with respect to which the TCA Indemnity Claim is made, the facts giving rise to such alleged basis for the TCA Indemnity Claim, and the amount of the liability asserted against the Company.  Within ten (10) days of the receipt of such written notice, the Company shall notify the TCA Indemnitee in writing of its intent to contest the TCA Indemnity Claim or to accept liability thereunder. In the event that no written notice is received by the TCA Indemnitee within ten (10) days of the original receipt by the Company of the written notice of the Indemnity Claim, the Company hereby acknowledges and agrees to accept liability as proposed in the TCA Indemnity Claim.

 

ARTICLE VII.

TERMINATION, AMENDMENT AND WAIVER

 

7.01 Termination . This Agreement may be terminated and abandoned at any time prior to the Effective Time of the Merger in the event of any of the following:

 

(a) by mutual written consent of Parent, Merger Sub, Shareholders and Company;

 

(b)   in the sole and absolute discretion of the Parent, upon an Event of Default (as defined in the Loan Agreement) of the Company, under the terms of that certain Loan Agreement entered into by and among the Parent, the Company, the Shareholders, and TCA Global Credit Master Fund LP, dated December 29, 2016 and executed December 30, 2016;

 

(c)   by any party hereto, if any governmental entity shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable;

 

7.02 Effect of Termination . In the event of termination of this Agreement by any party as provided in Section 7.01, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of any party. Nothing contained in this Section shall relieve any party for any breach of the representations, warranties, covenants or agreements set forth in this Agreement.

 

7.03 Amendment . This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties.

 

7.04 Extension; Waiver . Subject to Section 7.02 at any time prior to the Effective Time of the Merger, the parties may (a) extend the time for the performance of any of the obligations or other acts of the other parties, (b) waive any inaccuracies in the representations and warranties contained in this Agreement or in any document delivered pursuant to this Agreement, or (c) waive compliance with any of the agreements or conditions contained in this Agreement.  Any agreement on the part of a party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.

 

  12  

 

 

7.05 Procedure for Termination, Amendment, Extension or Waiver . A termination of this Agreement pursuant to Section 7.01, an amendment of this Agreement pursuant to Section 7.03 or an extension or waiver of this Agreement pursuant to Section 7.04 shall, in order to be effective, require in the case of Parent, Merger Sub or Company, action by the corporation’s Board of Directors and in the case of the Shareholders, written authorization.

 

7.06 Return of Documents . In the event of termination of this Agreement for any reason, the parties will return to the other applicable party all of the other party’s documents, work papers, and other materials (including copies) relating to the transactions contemplated in this Agreement, whether obtained before or after execution of this Agreement. The parties will not use any information so obtained from the other party for any purpose and will take all reasonable steps to have such other party’s information kept confidential.

  

ARTICLE VIII.

GENERAL PROVISIONS

 

8.01 Notices . All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the first business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be:

 

(a) if to Parent or Merger Sub prior to the Effective Time, to:

 

Green Innovations, Ltd.

3208 Chiquita Blvd. S., Suite 216

Cape Coral, FL

Attention: Alyce Schreiber

Email: aschreiber@tcaglobalfund.com 

 

with a copy to (which shall not constitute legal notice):

 

Lucosky Brookman LLP

101 Wood Avenue South, Fifth Floor

Woodbridge, NJ 08830

Attention: Seth Brookman

Email: sbrookman@lucbro.com

 

(b) if to Company and/or Shareholders to:

 

Zomongo, Inc.

P.O Box 625 Stn. Main

Cochrane, AB T4C 1A8 Canada

Attention: Jeremy Ostrowski

Email: jostrowski@zomongo.com 

 

with a copy to (which shall not constitute legal notice):

 

Gowling WLG

1600, 421 7th Avenue SW

Calgary Alberta T2P 4K9 Canada

Attention: Greg Shannon, Q.C.

Email: greg.shannon@gowlingwlg.com 

 

  13  

 

 

8.02 Interpretation . When a reference is made in this Agreement to a Section, Exhibit or Schedule, such reference shall be to a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.

  

8.03 Entire Agreement; No Third-Party Beneficiaries . This Agreement and the other agreements referred to herein constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement. This Agreement is not intended to confer upon any person other than the parties any rights or remedies.

 

8.04 Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without regard to principles of conflicts of laws. Any action brought by either party hereto against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of New York or in the federal courts located in the Southern District of the State of New York. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens . The parties hereto agree to submit to the in person am jurisdiction of such courts and hereby irrevocably waive trial by jury. The prevailing party shall be entitled to recover from the other party its reasonable attorney’s fees and costs.

 

8.05 Assignment . Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.

 

8.06 Further Assurances . From time to time after the date hereof and without further consideration from Company, the Shareholders shall execute and deliver, or cause to be executed and delivered, to Company such further instruments of sale, assignment, transfer and delivery, and take such other action as Company may reasonably request in order to consummate the transactions contemplated hereby.

 

8.07 Severability . Whenever possible, each provision or portion of any provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or portion of any provision in such jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

 

8.08 Counterparts . This Agreement may be executed in one or more identical counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more such counterparts shall have been executed by each of the parties and delivered to the other parties.

 

8.09 Time . Time is of the essence in the performance of the parties respective obligations herein contained.

  

8.10 Recitals, Disclosure Schedules and Exhibits . The Recitals, Disclosure Schedules and Exhibits to this Agreement are incorporated herein, by this reference, made a part hereof as if fully set forth herein.

  

[-signature page follows-]

 

  14  

 

 

IN WITNESS WHEREOF , the undersigned have caused their duly authorized officers to execute this Agreement as of the date first above written.

 

 

GREEN INNOVATIONS LTD.

as Parent

     
  By:                 
    Name: Alyce Schreiber
    Title: Chief Executive Officer
     
 

GNIN TCA MERGER SUB, INC.

as Merger Sub

     
  By:  
    Name: Alyce Schreiber
    Title: Chief Executive Officer
     
  SHAREHOLDERS
     
     
    Jeremy Ostrowski, as an individual  
     
     
    Jocelyne H. Ostrowski, as an individual
     
     
    Peter Crowley, as an individual
     
     
    Joseph Abrams, as an individual
     
  ZOMONGO, INC.
     
  By:  
    Name: Jeremy Ostrowski
    Title: Chief Executive Officer  
     
  ACKNOWLEDGED AND AGREED WITH RESPECT TO ARTICLE VI, AND ARTICLE II, SECTION 2.02
     
  TCA GLOBAL CREDIT MASTER FUND, LP
     
  By: TCA Global Credit Fund GP, Ltd.
  Its: General Partner
     
  By:
  Name: Robert Press
  Title: Director

 

  15  

 

 

Exhibit A

 

Escrow Agreement

 

  16  

 

 

Exhibit B

 

Articles of Merger

 

  17  

 

 

Exhibit C

 

Promissory Note

 

  18  

 

 

Exhibit D

 

Stock Register of Company Subsidiaries

 

  19  

 

 

Schedule I

 

Amount of Shares of Company Held by Shareholders

 

Shareholder     Number of Shares     Percentage of Ownership  
Jeremy Ostrowski     3,500,000 (Class J Preferred Stock)       12.09 %
Jocelyne Hughes-Ostrowski     25,000,000       86.36 %
Pete Crowley     250,000       0.009 %
Joe Abrams     200,000       0.007 %
Total     28,950,000       100 %

 

  20  

 

 

Schedule II

 

Percentage of Capital Stock of the Parent to be Issued to Shareholders at the Effective Time

 

Shareholder   Percentage of Ownership  
Jeremy Ostrowski     12.09 %
Jocelyne Hughes-Ostrowski     86.36 %
Peter Crowley     0.009 %
Joseph Abrams     0.007 %
Total     90 %

 

  21  

 

 

Disclosure Schedule 6.02(f)

 

SEC Reports

 

The most recent periodic report the Parent filed with the U.S. Securities and Exchange Commission was its Annual Report on Form 10-K submitted on April 10, 2015 for the fiscal year ended December 31, 2014. The Parent is currently delinquent in its filings and must file, amongst other filings, all periodic filings for the fiscal year ended 2015, 2016 and 2017.

 

  22  

Exhibit 2

 

ESCROW AGREEMENT

 

THIS ESCROW AGREEMENT (“Escrow Agreement”) is made and entered into as of December __, 2017, by and among Green Innovations, Ltd., a corporation organized and existing under the laws of the State of Nevada (the “Parent”), GNIN TCA Merger Sub, Inc., a corporation organized and existing under the laws of the State of Nevada and a wholly-owned subsidiary of the Parent (the “Merger Sub”), Jeremy Ostrowski, Jocelyne Hughes-Ostrowski, Peter Crowley, and Joseph Abrams (together, the “Shareholders”), Zomongo, Inc., a corporation organized and existing under the laws of Alberta, Canada (“Company”), TCA Global Credit Master Fund, LP, a limited partnership organized and existing under the laws of the Cayman Islands (the “Lender”) (together the Parent, Merger Sub, Shareholders, Company, and Lender, hereinafter referred to as “Principal(s)”) and Lucosky Brookman LLP (hereinafter referred to as “Escrow Agent”).

 

WHEREAS, the Company and its Subsidiaries (as defined in the Merger Agreement) (the “Borrowers”) have entered into that certain credit agreement, dated as of December 29, 2016 and effective as of December 30, 2016 (the “Credit Agreement”), pursuant to which the Lender agreed to make available to the Borrowers a secured revolving loan in the amount of up to Ten Million United States Dollars (US$10,000,000), subject to the terms and conditions therein contained, and of this amount, the Lender made an initial principal advance of Ten Million and No/100 United States Dollars (US$10,000,000) to the Borrowers;

 

WHEREAS, in connection with this Amendment, the Borrowers have requested and the Lender has agreed to advance an additional principal amount of Two Million Two Hundred Thousand United States Dollars (US$2,200,000) to the Borrowers for working capital financing for Borrowers and for any other purposes permitted under Amendment No. 1 to the Credit Agreement, dated December ___, 2017;

 

WHEREAS, the Principals have each entered into that certain Acquisition Agreement and Plan of Merger dated December ___, 2017 (substantially in the form attached hereto as Exhibit A, the “Merger Agreement”) whereby the Merger Sub shall merge with and into the Company (the “Merger”), and the Principals have agreed to hold certain fully executed transaction documents in escrow in connection therewith as described on Exhibit B hereto (the “Escrowed Property”);

 

WHEREAS, Principals desire that the Escrow Agent hold the Escrowed Property until the terms and conditions of this Escrow Agreement are met; and 

 

WHEREAS, Escrow Agent has agreed to act as escrow agent for the Escrowed Property on the terms and conditions now about to be set forth. 

 

NOW, THEREFORE, in consideration of the covenants and agreements herein set forth and other good and lawful consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:

 

 

 

 

I.             Escrow

 

A.       Escrow Agent agrees to hold all of the Escrowed Property in escrow subject to the terms and conditions contained in this Escrow Agreement. The Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no implied duties or obligations shall be read into this Escrow Agreement against the Escrow Agent. Escrow Agent agrees to hold the Escrowed Property and to release same only in accordance with the terms and conditions set forth in this Escrow Agreement. The provisions of this Escrow Agreement shall control in the event of any conflict between the provisions hereof and the provisions of the Credit Agreement or the Merger Agreement, if any.

 

B.       Escrow Agent shall not be deemed to have knowledge of any matter or thing unless and until Escrow Agent has actually received written notice of such matter or thing and Escrow Agent shall not be charged with any constructive notice whatsoever. The Escrow Agent may act in reliance upon any writing or instrument or signature which Escrow Agent, in good faith, believes to be genuine, may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to give any writing, notice, advice or instructions in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner, and execution, or validity of any instrument deposited in this escrow or given to Escrow Agent under this Escrow Agreement, nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the safekeeping of the Escrowed Property, and for the disposition of the same in accordance with this Escrow Agreement.

 

C.       In the event the Escrowed Property consists in whole or in part of stocks, bonds or certificates of deposit (or any other property which may fluctuate in value) Escrow Agent shall hold in escrow, pursuant to this Escrow Agreement, any proceeds of the Escrowed Property actually delivered to Escrow Agent and realized as a result of splits, calls, redemptions or otherwise, but shall not be obligated to ascertain the existence of (or initiate recovery of) such proceeds or to become or remain informed with respect to the possibility or probability of such proceeds being realized at any time in the future, or to inform the Principals or any third party with respect to the nature and extent of any proceeds realized, except upon the written request of such party, or to monitor current market values of the Escrowed Property. Further, Escrow Agent shall not be obligated to proceed with any action or inaction based on information with respect to market values of the Escrowed Property which Escrow Agent may in any manner learn, nor shall Escrow Agent be obligated to inform the Principals or any third party with respect to market values of any one or more of the Escrowed Property at any time, Escrow Agent having no duties with respect to investment management or information, the Principals understanding and intending that Escrow Agent’s responsibilities are purely ministerial in nature. Any reduction in the market value or other value of the Escrowed Property while deposited with Escrow Agent shall be at the sole risk of the Principals. If all or any portion of the Escrowed Property is in the form of a check or in any other form other than good and cleared funds, Escrow Agent shall deposit same as required but shall not be liable for the nonpayment thereof, nor responsible to enforce collection thereof.

 

  2  

 

 

D.       In the event instructions from the Principals, or any other party, would require Escrow Agent to expend any monies or to incur any cost, Escrow Agent shall be entitled to refrain from taking any action until it receives payment for such costs. It is agreed that the duties of Escrow Agent are purely ministerial in nature and shall be expressly limited to the safekeeping of the Escrowed Property and for the disposition of same in accordance with this Escrow Agreement. The Principals, jointly and severally, hereby indemnify Escrow Agent, and hold it forever harmless from and against, any and all claims, liabilities, obligations, judgments, damages, costs, penalties, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees or charges of any character or nature (collectively, the “Claims”), including, without limitation, all reasonable attorneys’ fees and the cost of defending or resisting any Claim throughout all appellate levels, administrative proceedings and bankruptcy proceedings, which it may incur or with which it may be threatened, directly or indirectly, arising from or in any way connected with this Escrow Agreement, or which may result from Escrow Agent’s disposition of the Escrowed Property, whether or not litigation is instituted, unless any such Claims arise as a result of Escrow Agent’s gross negligence or willful misconduct. Escrow Agent shall and is hereby vested with a lien on all Escrowed Property under the terms of this Escrow Agreement, for indemnification, attorneys’ fees, court costs and all other costs and expenses arising from any Claim, interpleader or otherwise, or other expenses, fees or charges of any character or nature, which may be incurred by Escrow Agent by reason of disputes arising between the Principals or any third party as to the correct interpretation of this Escrow Agreement, the release of the Escrowed Property hereunder, instructions given to Escrow Agent hereunder, or otherwise, with the right of Escrow Agent, regardless of the instruments aforesaid and without the necessity of instituting any proceeding or action, to hold any property hereunder until and unless said additional expenses, fees and charges shall be fully paid. Any fees and costs charged by the Escrow Agent for serving hereunder shall be paid by the Principals, jointly and severally.

 

E.       The Escrow Agent may consult with counsel of its own choice (and the costs of such counsel shall be paid by the Parent), and Escrow Agent shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. The Escrow Agent shall not be liable for any mistakes of fact or error of judgment, or for any actions or omissions of any kind, unless caused by its willful misconduct or gross negligence.

 

F.       The Principals acknowledge and agree that nothing in this Escrow Agreement shall prohibit Escrow Agent from serving in a similar capacity on behalf of others.

 

G.       All rights of indemnity or reimbursement to which Escrow Agent is entitled to hereunder shall survive the termination of this Escrow Agreement or the disbursement of the Escrowed Property or delivery of the Escrowed Property to a successor escrow agent in accordance with the terms hereof.

 

H.       If all or any portion of the Escrowed Property delivered to Escrow Agent is in the form of a check or in any other form other than cash or immediately available US funds, Escrow Agent shall deposit same as required but shall not be liable for the nonpayment thereof nor responsible to enforce collection thereof. If such check or other instrument other than cash representing the Escrowed Property is returned to Escrow Agent unpaid, Escrow Agent shall notify the applicable Principal(s) for further instructions.

 

  3  

 

 

II.           Release of Escrowed Property

 

A.       The Escrow Agent shall release a copy of the Escrowed Property to each of the Principals on or promptly following such date as the conditions precedent provided in this Section shall be satisfied (such date, the “Release Date”). On the Release Date, the Escrow Agent is instructed to insert the date of the Release Date on the Escrowed Property in the spaces therein provided and make such filings as are necessary and appropriate with any state or federal governing body to effectuate the merger contemplated by the Merger Agreement and to take any and all actions as are otherwise necessary and appropriate in connection therewith or as contemplated by the Escrowed Property. The Escrow Agent is permitted to proceed with the foregoing actions upon receipt of written confirmation from the Parent that the following conditions precedent have been satisfied: (i) the Company shall be audited by a United States Independent Registered Public Accounting Firm in good standing with the Public Company Accounting Oversight Board (“PCAOB”) and the Company shall be provided with such auditor’s consent to file the audited financial statements with the U.S. Securities and Exchange Commission, (ii) the Parent shall be audited by a United States Independent Registered Public Accounting Firm in good standing with the PCAOB and the Parent shall be provided with such auditor’s consent to file the audited financial statements with the U.S. Securities and Exchange Commission, and (iii) the Parent shall have filed all required periodic reports and related filings in accordance with the Securities Exchange Act of 1934 and shall be deemed a SEC current reporting company with the OTC Markets trading platform. The Escrow Agent is not required to seek independent confirmation that the foregoing items (i) through (iii) have been satisfied and the Escrow Agent is permitted to rely entirely upon the written confirmation from the Parent as evidence of the satisfaction of the foregoing.

 

B.       In the event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from the Principals, or from third persons with respect to the Escrowed Property, which, in Escrow Agent’s sole opinion, are in conflict with each other or with any provision of this Escrow Agreement, Escrow Agent shall be entitled to refrain from taking any action until it shall be directed otherwise unanimously in writing by the Principals, and said third persons, if any, or by a final order or judgment of a court of competent jurisdiction. If any of the parties shall be in disagreement about the interpretation of this Escrow Agreement, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, at its sole discretion, deposit the Escrowed Property with a court having jurisdiction over this Escrow Agreement, and, upon notifying all parties concerned of such action, all liability on the part of the Escrow Agent shall fully cease and terminate. The Escrow Agent shall be and is hereby indemnified by the Principals, jointly and severally, for all Claims, including reasonable attorneys’ fees, in connection with the aforesaid proceeding, and shall be fully protected in suspending all or a part of its activities under this Escrow Agreement until a final decision or other settlement in the proceeding is received. In the event Escrow Agent is joined as a party to a lawsuit by virtue of the fact that it is holding the Escrowed Property, Escrow Agent shall, at its sole option, either: (i) tender the Escrowed Property in its possession to the registry of the appropriate court; or (ii) disburse the Escrowed Property in its possession in accordance with the court’s ultimate disposition of the case, and the Principals hereby, jointly and severally, indemnify and hold Escrow Agent harmless from and against any and all Claims in connection therewith, including, but not limited to, reasonable attorneys’ fees and court costs at all trial and appellate levels.

 

  4  

 

 

III.          Term of Agreement

 

A.       This Escrow Agreement shall remain in effect unless and until it is canceled in any of the following manners:

 

 1.       Upon written notice given by all Principals of cancellation of designation of Escrow Agent to act and serve in said capacity, in which event, cancellation shall take effect no earlier than five (5) days after notice to Escrow Agent of such cancellation; or

 

  2.       Escrow Agent may resign as escrow agent at any time upon giving notice to the Principals of its desire to so resign; provided, however, that resignation of Escrow Agent shall take effect no earlier than five (5) days after the giving of notice of resignation; or

 

  3.       Upon compliance with all escrow provisions as set forth in this Escrow Agreement.

 

B.       In the event of a cancellation or resignation under Sections III.A. 1 or 2 above, if the Principals fail to agree to a successor escrow agent within the five (5) day period described hereinabove, Escrow Agent shall have the right to deposit all of the Escrowed Property held hereunder into the registry of an appropriate court and request judicial determination of the rights of the Principals to the Escrowed Property, by interpleader or other appropriate action, and the Principals hereby indemnify and hold Escrow Agent harmless from and against any Claims in connection therewith, including, but not limited to, reasonable attorneys’ fees and court costs at all trial and appellate levels.

 

C.       Upon termination of the duties of Escrow Agent in either manner set forth in Sections III.A. 1 or 2 above, Escrow Agent shall deliver all of the Escrowed Property to the newly appointed escrow agent designated by the Principals, and, except for Escrow Agent’s lien rights in and to the Escrowed Property as set forth in this Escrow Agreement, Escrow Agent shall not otherwise have the right to withhold Escrowed Property from said newly appointed escrow agent.

 

D.       Escrow Agent shall not be bound by any modification, cancellation or rescission of this Escrow Agreement unless in writing and signed by the Principals and Escrow Agent. In no event shall any modification of this Escrow Agreement, which shall affect the rights or duties of Escrow Agent, be binding on Escrow Agent unless it shall have given its prior written consent.

 

  5  

 

 

IV.          Notices

 

All notices of request, demand and other communications hereunder shall be addressed to the parties as follows:

 

Parent, Merger Sub and Lender:

 

Green Innovations, Ltd.

3208 Chiquita Blvd. S., Suite 216

Cape Coral, FL

Attention: Alyce Schreiber

Email: aschreiber@tcaglobalfund.com 

 

Company and/or Shareholders:

 

Zomongo, Inc.

P.O Box 625 Stn. Main

Cochrane, AB T4C 1A8 Canada

Attention: Jeremy Ostrowski, Chief Executive Officer

Email: jostrowski@zomongo.com

 

With a copy which shall not constitute legal notice:

 

Gowling WLG

1600, 421 7th Avenue SW

Calgary Alberta T2P 4K9 Canada

Attention: Greg Shannon, Q.C.

Email: greg.shannon@gowlingwlg.com 

 

Escrow Agent:

 

Lucosky Brookman LLP

101 Wood Avenue South, 5 th Floor

Woodbridge, NJ 08830

Attention: Seth A. Brookman

Email: sbrookman@lucbro.com

 

unless the address is changed by the party by like notice given to the other parties. Notice shall be in writing and shall be deemed delivered: (i) if mailed by certified mail, return receipt requested, postage prepaid and properly addressed to the address below, then three (3) business days after deposit of same in a regularly maintained U.S. Mail receptacle; or (ii) if mailed by Federal Express, UPS or other nationally recognized overnight courier service, next business morning delivery, then one (1) business day after deposit of same in a regularly maintained receptacle of such overnight courier; or (iii) if hand delivered, then upon hand delivery thereof to the address indicated on or prior to 5:00 p.m., EST, on a business day. Any notice hand delivered after 5:00 p.m., EST, shall be deemed delivered on the following business day. Notwithstanding the foregoing, notice, consents, waivers or other communications referred to in this Escrow Agreement may be sent by facsimile, e-mail, or other method of delivery, but shall be deemed to have been delivered only when the sending party has confirmed (by reply e-mail or some other form of written confirmation from the receiving party) that the notice has been received by the other party.

 

  6  

 

 

V.           Miscellaneous

 

A.        Any dispute arising under, relating to, or in connection with the ESCROW Agreement or related to any matter which is the subject of or incidental to the ESCROW Agreement (whether or not such claim is based upon breach of contract or tort) shall be subject to the exclusive jurisdiction and venue of the state and/or federal courts located in Broward County, Florida, provided, however, that nothing herein shall prevent ESCROW AGENT from bringing suit or taking legal action in any other jurisdiction.  This provision is intended to be a “mandatory” forum selection clause and governed by and interpreted consistent with Florida law .

 

A.       Except as provided in the immediately preceding paragraph, this Escrow Agreement shall be deemed to be a contract made under and governed by the internal laws of the State of Nevada, and for all purposes shall be construed in accordance with the laws of the State of Nevada, without giving effect to the choice of law provisions. Each party hereto irrevocably waives any objection on the grounds of venue, forum nonconveniens or any similar grounds and irrevocably consents to service of process by mail or in any manner permitted by applicable law and consents to the jurisdiction of said courts. Each of the parties hereto hereby waives all right to trial by jury in any action, proceeding or counterclaim arising out of the transactions contemplated by this Agreement.

 

B.       The Principals shall be obligated to reimburse Escrow Agent for all fees, costs and expenses incurred or that become due in connection with this Escrow Agreement, including reasonable attorney’s fees. Neither the modification, cancellation, termination or rescission of this Escrow Agreement nor the resignation or termination of the Escrow Agent shall affect the right of Escrow Agent to retain the amount of any fee which has been paid, or to be reimbursed or paid any amount which has been incurred or becomes due, prior to the effective date of any such modification, cancellation, termination, resignation or rescission.

 

C.       The Principals acknowledge and agree that the Escrow Agent is also counsel to the Lender. The Principals hereby waive any and all conflicts of interest which may be present.

 

D.       This Escrow Agreement sets forth the entire agreement and understanding of the parties with respect to the matters contained herein and supersedes all prior agreements, arrangements and understandings relating thereto.

 

  7  

 

 

E.        All of the terms and conditions of this Escrow Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the parties hereto, as well as their respective successors and assigns.

 

F.        This Escrow Agreement may be amended, modified, superseded or canceled, and any of the terms or conditions hereof may be waived, only by a written instrument executed by each party hereto or, in the case of a waiver, by the party waiving compliance. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver of any party of any condition, or of the breach of any term contained in this Escrow Agreement, whether by conduct or otherwise, in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such condition or breach or a waiver of any other condition or of the breach of any other term of this Escrow Agreement. No party may assign any rights, duties or obligations hereunder unless all other parties have given their prior written consent.

 

G.       If any provision included in this Escrow Agreement proves to be invalid or unenforceable, it shall not affect the validity of the remaining provisions.

 

H.       This Escrow Agreement and any modification or amendment of this Escrow Agreement may be executed in several counterparts or by separate instruments and all of such counterparts and instruments shall constitute one agreement, binding on all of the parties hereto.

 

I.         The parties hereto agree to accept a facsimile transmission copy of their respective actual signatures as evidence of their actual signatures to this Escrow Agreement and any modification or amendment of this Escrow Agreement; provided, however, that each party who produces a facsimile signature agrees, by the express terms hereof, to place, promptly after transmission of his or her signature by fax, a true and correct original copy of his or her signature in overnight mail to the address of the other party.

 

[Signature Pages Follow]

 

  8  

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be executed as of this ______ day of December, 2017.

 

GREEN INNOVATIONS LTD.  
     
     
Name: Alyce Schreiber  
Title: Chief Executive Officer  
   
GNIN TCA MERGER SUB, INC.  
     
     
Name:  Alyce Schreiber  
Title: Chief Executive Officer  
     
ZOMONGO, INC.  
     
By:    
Name: Jeremy Ostrowski  
Title: Chief Executive Officer  

 

  9  

 

 

SHAREHOLDERS  
   
   
Jeremy Ostrowski, as an individual    
   
   
Jocelyne H. Ostrowski, as an individual  
   
   
Peter Crowley, as an individual  
   
   
Joseph Abrams, as an individual  

 

  10  

 

 

TCA GLOBAL CREDIT MASTER FUND, LP

 

By: TCA Global Credit Fund GP, Ltd.  
Its: General Partner  
     
By:    
Name:  Robert Press  
Title: Director  

 

  11  

 

 

LUCOSKY BROOKMAN LLP  
     
By:    
Name:  Seth Brookman  
Title: Partner  

 

  12  

 

 

EXHIBIT A

 

ACQUISITON AGREEMENT AND PLAN OF MERGER

 

See attached.

 

  Ex A- 1  

 

 

EXHIBIT B

 

Acquisition Agreement and Plan of Merger

 

Board/Shareholder Resolutions – Merger Sub

Board Consent Appointing Sole Officer and Director of Merger Sub and Issuance of Shares to

GNIN

 

Board Consent Approving Merger

 

Shareholder Consent Approving Merger

 

Consent and Agreement – Green Innovations Ltd.

 

Security Agreement – Green Innovations Ltd.

 

Guaranty Agreement – Green Innovations Ltd.

 

Board/Shareholder Resolutions – Green Innovations Ltd.

 

Board Consent Approving Merger

Notice to Shareholders - Zomongo Inc.

 

Officer’s Certificate (Zomongo Inc.)

 

Certificate of Good Standing (Zomongo Inc.)

 

Certificate of Merger
Promissory Note in the amount of $500,000 issued by Zomongo Inc. and the Company Subsidiaries (as defined in the Merger Agreement) in favor of Lender

 

 

Ex B-1