SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14C
INFORMATION STATEMENT PURSUANT TO SECTION 14C OF THE
SECURITIES EXCHANGE ACT OF 1934
[X] Filed by the Registrant [ ] Filed by a
Party other than the Registrant
Check the appropriate box:
[ ] Preliminary Information Statement
[X] Definitive Information Statement Only
[ ] Confidential, for Use of the Commission (as permitted by Rule 14c)
LUCAS ENERGY, INC.
Formerly known as:
PANORAMA INVESTMENTS, CORP.
(
Name of Registrant as Specified In Its Charter
)
Name of Person(s) Filing Information Statement, if other than Registrant:
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Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14C-5(g) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant
to Exchange Act Rule 0-11 (Set forth the amount
of which the filing fee is
calculated and state how it was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by
Exchange Act
Rule 0-11 (a) (2) and identify the filing for which the
offsetting fee was
paid previously. Identify the previous filing by
registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount previously paid:
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2) Form, Schedule or Registration Statement No.:
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3) Filing Party:
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4) Date Filed:
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LUCAS ENERGY, INC.
3000 Richmond Avenue
Suite #400
Houston, TX 77040
(713) 528-1881 Telephone
NOTICE OF ACTION TAKEN BY WRITTEN CONSENT OF OUR
MAJORITY STOCKHOLDERS
To the Stockholders of Lucas Energy, Inc. (formerly, Panorama Investments, Corp.):
We are furnishing this information statement to
advise you that Panorama Investments, Corp., entered
into a Share Exchange & Acquisition Agreement
(the "Agreement") with Lucas Energy, Inc., a privately held Nevada
corporation ("Lucas Energy") based in San Mateo, California.
The terms of the Agreement required that of
all of the Lucas shareholders
exchange their Lucas shares, including preferred and common
classes, for an
aggregate of 9,083,334 Panorama Investments, Inc., common shares in a
specified
Closing Transaction which was effective June 16, 2006 (
see Form 8K
filed June 20, 2006
). The
transaction, at
Closing, required transfer of 1,100,000 then issued
"control" shares to
Lucas Energy's current shareholders and required the issuance of an
additional
7,983,387 newly issued shares to Lucas Energy's then-current shareholders.
This transaction was effected by authority of the Board of Directors
of the
Company and the written consent of the holders of a majority of the
Company's
Common Stock. As a result of the Agreement, voting control of the
Company
changed and, except for Mr. James J. Cerna, Jr., who remained with the Company
as Chief Operating Officer and Director, the
other current officers and
directors of the Company resigned and will be replaced
by Directors and
Officers selected by Lucas Energy's shareholders and board of directors.
The Agreement further provided, that prior to
Closing, the company approved a
forward-split of our common stock such that currently issued
(including those
shares anticipated to be issued pursuant to this transaction) would be
exchanged
for 2.4 post-split shares (the "Forward Stock Split"). A total of
approximately 25,160,000 shares were issued and outstanding after
giving effect to
the acquisition transaction and the Forward-Split,
and subject to some
fractional share rounding.
Pursuant to the affirmative vote of the holders of a majority of the
Company's
issued and outstanding Common Stock, the Company's Articles of
Incorporation were amended to reflect a change in the name of the Company to "Lucas Energy,
Inc." (the "Amendment").
The Agreement, the Forward Stock Split and the Amendment
were approved
unanimously by our Board of Directors. On May 30, 2006, holders of a majority of
the shares of our Common Stock acted by written consent to approve the
terms of
the Merger, the Forward Stock Split and the Amendment.
PLEASE NOTE THAT THE NUMBER OF VOTES RECEIVED IS
SUFFICIENT TO SATISFY THE
STOCKHOLDER VOTE REQUIREMENT FOR THESE ACTIONS AND NO
ADDITIONAL VOTES WILL
CONSEQUENTLY BE NEEDED TO APPROVE THESE ACTIONS. STOCKHOLDER
APPROVAL OF THE
AGREEMENT IS NOT REQUIRED.
No action is required by you. The
accompanying Information Statement is
furnished only to inform our stockholders of the action described
above in accordance with Rule 14c-2 promulgated under the
Securities
Exchange Act of 1934, as amended.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE
REQUESTED NOT TO SEND US A PROXY.
The Merger will not be effective until Articles of
Merger are filed with the
Nevada Secretary of State. The amendments to our Articles of Incorporation
will
not be effective until a Certificate of Amendment is filed with the Nevada
Secretary of State. The Articles were amended in Nevada on June 1, 2006, and
were effective June 9, 2006.
This Information Statement is late and is being mailed to you on or about
February 20, 2007.
Very Truly Yours
/s/ James J. Cerna, Jr.
-----------------------------
James J. Cerna, Jr.
Chief Executive Officer
LUCAS ENERGY, INC.
3000 Richmond Avenue
Suite #400
Houston, TX 77040
(713) 528-1881 Telephone
INFORMATION STATEMENT PURSUANT TO SECTION 14(C)
OF THE SECURITIES EXCHANGE ACT OF 1934 AND
REGULATION 14C THEREUNDER
We are furnishing this Information Statement to you to provide a
description of
actions taken by our Board of Directors and by the holders of a majority
of our
outstanding shares of common stock on May
23rd, and May 30th, 2006, in
accordance with the relevant sections of the Nevada Revised Statutes.
WE ARE NOT ASKING YOU FOR A PROXY
AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
This Information Statement is being mailed
on or about February 20, 2007 to
stockholders of record on May 23, 2006. The Information
Statement is being
delivered only to inform you of the corporate action described herein, in accordance with Rule 14c-2 promulgated
under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
We have asked brokers and other custodians, nominees and fiduciaries to
forward
this Information Statement to the beneficial owners of the common stock
held of
record by such persons and will reimburse such
persons for out-of-pocket
expenses incurred in forwarding such material.
THIS IS NOT A NOTICE OF A MEETING OF STOCKHOLDERS AND
NO STOCKHOLDERS'
MEETING WILL BE HELD TO
CONSIDER ANY MATTER DESCRIBED HEREIN.
On May 23, 2006, the record date for determining the identity of
stockholders
who are entitled to receive this Information Statement, 2,500,000 shares
of our
common stock were issued and outstanding. The common stock constitutes the
sole
outstanding class of voting securities of Lucas Energy (formerly Panorama Investments, Corp.). Each share
of common stock entitles the holder thereof to one vote on all matters submitted
to stockholders.
NO VOTE OR OTHER CONSENT OF OUR STOCKHOLDERS IS SOLICITED IN CONNECTION WITH THIS INFORMATION STATEMENT. WE ARE NOT
ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT
TO SEND US A PROXY.
On May 23, 2006, we entered into an Share Exchange & Acquisition Agreement
with
Lucas Energy, Inc., in order to facilitate our acquisition of Lucas
Energy. On
May 23, 2006, majority holders of our Common Stock consented in
writing to the
following:
1. Approval of the proposed acquisition of Lucas Energy, Inc.
2. Approval of the forward stock split, whereby 2.4 shares of our
Common Stock
shall be issued in exchange for every one share of our Common Stock
issued and
outstanding currently and at the time of the Acquisition.
3. Approval of the Amendment to our Articles of
Incorporation, as amended,
changing our name to Lucas Energy, Inc.
The controlling stockholders have not consented to or
considered any other
corporate action. Because stockholders holding at least a majority of the voting
rights of our outstanding common stock at the record date have voted in favor of
the foregoing proposals, and have sufficient
voting power to approve such
proposals through their ownership of common stock, no other stockholder consents
will be solicited in connection with the
transactions described in this
Information Statement. The actions described
herein were effected on or about the close of business on June 16, 2006.
All of the foregoing was approved in
anticipation of effecting the
transactions contemplated by that certain Agreement dated May 23, 2006 with
Lucas Energy. The filing of the Certificate of Amendment to our Articles of
Incorporation, as amended, and the Forward Stock Split
were required by the
Agreement.
We are not seeking written consent from any stockholders other
than set forth
above and our other stockholders will not be given an opportunity to
vote with
respect to the actions taken. All necessary
corporate approvals have been
obtained, and this Information Statement is furnished solely for the
purpose of
advising stockholders of the actions taken by written consent.
Stockholders who were not afforded an opportunity to consent or
otherwise vote
with respect to the actions taken will not have dissenters' appraisal
rights in
conjunction with the proposed Merger or other corporate actions taken in
connection with the Merger transaction.
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EXHIBIT A
SHARE EXCHANGE AND ACQUISITION AGREEMENT
BY AND AMONG
PANORAMA INVESTMENTS, CORP.
AND
LUCAS ENERGY, INC.
Dated May 23, 2006
(CLOSING DATE: JUNE 13, 2006)
SHARE EXCHANGE & ACQUISITION AGREEMENT
THIS EXCHANGE AGREEMENT (the "Agreement"), is made and entered
into as of May
23, 2006, by and among Panorama Investments,
Corp., a Nevada corporation
("PANORAMA"), and Lucas Energy, Inc., a Nevada corporation
("LUCAS"), and the
stockholders of LUCAS set forth on the signature
pages to this Agreement
(collectively, "LUCAS" and the "LUCAS SHAREHOLDERS"),
with respect to the
following facts:
RECITALS
A. The LUCAS SHAREHOLDERS own 100% of the issued and outstanding
shares of the Common Stock of LUCAS ENERGY, INC., par
value $.001 per share and 100% of the issued and outstanding
classes of preferred shares (the "LUCAS Shares"), in the denominations as set forth opposite
their respective names on Schedule I and Schedule II to this Agreement,
respectively;
B. PANORAMA desires to acquire from the LUCAS
SHAREHOLDERS, and the LUCAS SHAREHOLDERS desire to sell and transfer
to PANORAMA, all of the LUCAS Shares owned by them on the Closing Date in
exchange for the issuance and delivery by PANORAMA of one share of Common
Stock, par value $0.001 per share, of PANORAMA ("Common Stock"),
for each 0.92384 LUCAS Shares (the "Exchange Ratio"), on the terms and
conditions set forth below (the "Exchange"); and
C. It is intended that, for federal income tax purposes,
the Exchange shall qualify as an exchange described in
Section 351 of the of the Internal Revenue Code of 1986, as
amended (the "Code") and a reorganization described in Section 368 of the Code.
NOW, THEREFORE, in consideration of the foregoing premises and
representations,
warranties, covenants and agreements contained herein, and for
other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby,
the parties hereto
hereby agree as follows:
ARTICLE I
EXCHANGE OF SECURITIES
Section 1.1 The Exchange.
On the terms and subject to the conditions of this Agreement,
on the Closing
Date, PANORAMA shall issue and deliver to each of the LUCAS
SHAREHOLDERS such
number of shares of Common Stock as is
set forth opposite such LUCAS
SHAREHOLDER's name on Schedule I hereto, subject to adjustment as
set forth in
Section 1.2, and each such LUCAS SHAREHOLDER shall sell, transfer and deliver to
PANORAMA, the number of issued and outstanding LUCAS Shares set
forth opposite
such LUCAS SHAREHOLDER's name on Schedule I hereto along with a duly
executed
share assignment endorsed in favor of PANORAMA.
Section 1.2 Exchange Ratio.
(a) PANORAMA currently has outstanding 2,500,000
shares of Common Stock. In connection with the Closing, it is intended
that, the LUCAS SHAREHOLDERS would receive an aggregate of 9,083,387
shares of PANORAMA Common Stock (assuming 100% of the LUCAS SHAREHOLDERS
exchange their LUCAS SHARES for PANORAMA SHARES), which includes transfer of 1,100,000
currently issued and outstanding PANORAMA shares from the controlling
shareholders and issuance of an additional 7,983,387 shares at Closing.
(b) If between the date of this Agreement and the Closing Date,
there shall be any other change in the number of shares of
outstanding capital stock of either PANORAMA or LUCAS, the Exchange
Ratio shall be adjusted such that immediately following the Closing, the aggregate number
of shares of Common Stock issued to each represents the percentage
ownership set forth above.
ARTICLE II
THE CLOSING
Section 2.1 Closing Date.
The closing of the Exchange and the other transactions
contemplated by this
Agreement (the "Closing") shall take place at the
offices of Marcus A. Luna,
Esq., 1000 N. Green Valley Pkwy., Suite 300-137, Henderson, NV
89074 at 10:00
a.m. on May 29, 2006, or at such other location, date and time as
PANORAMA and
LUCAS may agree. The time and date upon which the Closing actually occurs
being
referred to herein as the "Closing Date").
Section 2.2 Transactions at Closing.
At the Closing, the following transactions shall take place
simultaneously and
no transaction shall be deemed to have been completed or any document
delivered
until all such transactions have been completed and all
required documents
delivered:
(a) PANORAMA shall deliver the following documents:
(i) Validly executed stock certificates corresponding to the Common Stock issued
in the name of the LUCAS SHAREHOLDERS in the amounts set forth in Schedule I;
(ii) True copies of all consents and waivers obtained by PANORAMA, in accordance
with the provisions of Section 7.1 below;
(iii) Certificate of good standing from the Secretary of State of
the State of
Nevada, dated at or about the Closing Date, to the effect that
PANORAMA is in
good standing under the laws of said state;
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(iv) Certified copy of the Certificate of
Incorporation of PANORAMA, as
certified by the Secretary of State of the State of
Nevada at or about the
Closing Date;
(v) Secretary's certificate duly executed by PANORAMA's secretary
attaching and
attesting to the accuracy of: (A) the bylaws of PANORAMA, (B) the resolutions of
PANORAMA's board of directors hereto issuing and allotting the
Common Stock to
the LUCAS SHAREHOLDERS subject to the
provisions hereof, approving the
transactions contemplated hereby, including the
Exchange, appointing the
designees of LUCAS as directors of PANORAMA, and (C) an incumbency
certificate
signed by all of the executive officers of
PANORAMA dated at or about the
Closing Date;
(vi) An officer's certificate duly executed by
PANORAMA's chief executive
officer to the effect that the conditions set forth in Section 7.1(a) below have
been satisfied, dated as of the date of the Closing;
(vii) A signed opinion of counsel to PANORAMA, dated as of the
Closing Date
substantially in the form attached hereto as Exhibit A hereto;
(viii) Resignation and release letters in the form attached hereto as
Exhibit B
hereto from each of the current officers and directors of PANORAMA;
(ix) All corporate books and records of PANORAMA; and
(x) Such other documents and instruments as LUCAS may reasonably request.
(b) LUCAS shall deliver or cause to be delivered the following documents
and/or
shall take the following actions:
(i) LUCAS shall deliver to PANORAMA share certificates in the name
of PANORAMA
in respect of all LUCAS Shares and shall register LUCAS Shares
in the name of
PANORAMA in the shareholders register of LUCAS;
(ii) Certificate of good standing from the Secretary of State
of the State of
Nevada, dated at or about the Closing Date, to the effect that LUCAS is in
good
standing under the laws of said state;
(iii) Certified copy of the Certificate of Incorporation of LUCAS, as amended to
date certified by the Secretary of State of the State of Nevada at or
about the
Closing Date;
(iv) Secretary's certificate duly executed by LUCAS's secretary
attaching and
attesting to the accuracy of: (A) the bylaws of LUCAS, (B) the
resolutions of
LUCAS's board of directors, approving the transactions
contemplated hereby,
including the Exchange, and (C) an incumbency certificate signed by
all of the
executive officers of LUCAS dated at or about the Closing Date;
(v) An officer's certificate duly executed by LUCAS's chief executive officer of
LUCAS to the effect that the conditions set forth in Section 7.2(a)
below have
been satisfied, dated as of the date of the Closing;
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(vi) True copies of all consents and waivers obtained by LUCAS, in
accordance
with the provisions of Section 7.1 below; and
(vii) A signed opinion of counsel to LUCAS,
dated as of the Closing Date
substantially in the form attached hereto as Exhibit C hereto.
(c) The LUCAS SHAREHOLDERS shall deliver the following documents:
(i) to PANORAMA, duly executed share assignments in the form attached
hereto as
Exhibit D effecting the immediate and
unconditional sale, assignment and
irrevocable transfer of LUCAS Securities to PANORAMA,
free and clear of any
liens, or any other third party rights of
any kind and nature, whether
voluntarily incurred or arising by operation of law; and
(ii) to LUCAS, as agent for PANORAMA, all share certificates in respect of LUCAS
Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PANORAMA
PANORAMA hereby makes the following representations and warranties to
LUCAS and
each LUCAS SHAREHOLDER:
Section 3.1 Organization and Qualification.
PANORAMA is duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization, with the corporate power and
authority to
own and operate its business as presently conducted, except where the failure to
be or have any of the foregoing would not have a
Material Adverse Effect.
PANORAMA is duly qualified as a foreign corporation to
do business and is in
good standing in each jurisdiction where the character of its
properties owned
or held under lease or the nature of their activities makes such
qualification
necessary, except for such failures to be so qualified or in good
standing as
would not have a Material Adverse Effect. PANORAMA has no
subsidiaries and is
not a participant in any joint venture, partnership, or similar arrangement.
Section 3.2 Authorization.
PANORAMA has the requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement and to consummate the Exchange.
Section 3.3 Validity and Effect of Agreement.
This Agreement has been duly and validly executed and delivered by PANORAMA and,
assuming that it has been duly authorized, executed and delivered by
the other
parties hereto, constitutes a legal, valid and binding obligation of PANORAMA in
accordance with its terms except as
limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of
general application
affecting enforcement of creditors' rights generally.
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Section 3.4 No Conflict.
Neither the execution and delivery of this
Agreement by PANORAMA nor the
performance by such parties of their respective obligations hereunder,
nor the
consummation of the Exchange, will: (i) conflict with PANORAMA's
Certificate of
Incorporation or Bylaws; (ii) violate any statute, law,
ordinance, rule or
regulation, applicable to PANORAMA or any of the
properties or assets of
PANORAMA; or (iii) violate, breach, be in conflict with or constitute a
default
(or an event which, with notice or lapse of time or both,
would constitute a
default) under, or permit the termination of any provision of, or result
in the
termination of, the acceleration of the maturity of, or the acceleration
of the
performance of any obligation of PANORAMA and/or affect any of the
obligations
hereunder, or result in the creation or
imposition of any Lien upon any
properties, assets or business of PANORAMA under, any
Contract or any order,
judgment or decree to which PANORAMA is a party or by
which it or any of its
assets or properties is bound or encumbered except, in the case of clauses
(ii)
and (iii), for such violations, breaches,
conflicts, defaults or other
occurrences which, individually or in the aggregate, would not have
a material
adverse effect on its obligation to perform its covenants under this Agreement.
Section 3.5 Required Filings and Consents.
The execution and delivery of this Agreement by
PANORAMA does not, and the
performance of this Agreement by PANORAMA will
not, require any consent,
approval, authorization or permit of, or filing
with or notification to,
Governmental Authority with respect to PANORAMA except: (i)
compliance with
applicable requirements of the Securities Act, the
Exchange Act and state
securities laws ("Blue Sky Laws"); and (ii) where the
failure to obtain such
consents, approvals, authorizations or permits, or
to make such filings or
notifications would not, individually or in the
aggregate, reasonably be
expected to have a Material Adverse Effect on PANORAMA, or would not
prevent or
materially delay consummation of the Exchange or otherwise prevent
the parties
hereto from performing their respective obligations under this Agreement.
Section 3.6 Capitalization.
The authorized capital stock of PANORAMA consists of
100,000,000 shares of
Common Stock, par value $0.001 per share, of which 2,500,000 shares
are issued
and outstanding, and 10,000,000 shares of Preferred Stock, par value
$0.001 per
share, of which no shares are outstanding.
Except for the transactions
contemplated by this Agreement, there are no other share
capital, preemptive
rights, convertible securities, outstanding warrants, options or other rights to
subscribe for, purchase or acquire from PANORAMA any shares of capital
stock of
PANORAMA and there are no contracts or commitments providing
for the issuance
of, or the granting of rights to acquire, any
shares of capital stock of
PANORAMA or under which PANORAMA is, or may become, obligated
to issue any of
its securities. All shares of capital stock of PANORAMA
outstanding as of the
date of this Agreement have been duly authorized and validly issued,
are fully
paid and nonassessable, and are free of preemptive rights.
As of the Closing
Date (as defined herein), there will be no more than 2,500,000 shares of
Common
Stock issued or outstanding prior to the Exchange.
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Section 3.7 Status of Common Stock.
The Common Stock, when issued and allotted at the Closing in exchange for
LUCAS
Shares, will be duly authorized, validly issued, fully paid, nonassessable,
and
free of any preemptive rights, will be issued in compliance with all
applicable
laws concerning the issuance of securities,
and will have the rights,
preferences, privileges, and restrictions set forth in PANORAMA's
charter and
bylaws, and will be free and clear of any Liens of any kind and duly
registered
in the name of the LUCAS SHAREHOLDERS, in PANORAMA's stockholders ledger.
Section 3.8 SEC Reports and Financial Statements.
PANORAMA has timely filed with the SEC all forms, reports, notices,
schedules,
statements and other documents and instruments required to be filed by it
under
any applicable law, and has heretofore made available (or
promptly following
filing will make available) to LUCAS true and
complete copies of, all such
forms, reports, notices, schedules,
statements and other documents and
instruments required to be filed by it under the Exchange Act or the
Securities
Act, the "PANORAMA SEC Documents"). As of their resp ective dates or, if amended,
as of the date of the last such amendment, the PANORAMA SEC Documents, including
any financial statements or schedules included therein (i) did not
contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements made therein,
in
light of the circumstances under which they were made, not misleading, (ii) were
complete and accurate in all material respects,
and (iii) complied in all
material respects with the applicable requirements of the Exchange
Act and the
Securities Act, as the case may be, and the applicable rules and
regulations of
the SEC thereunder.
Section 3.9 Financial Statements.
Each of the financial statements (the "PANORAMA Financial Statements")
included
in the PANORAMA SEC Documents including but not limited to the audited financial
statements for the year ended November 30, 2005 and the
unaudited financial
statements for the three (3) month period ended February 28, 2006 have
been (or
will be) filed in accordance with any applicable law and prepared from,
and are
in accordance with, the books and records of PANORAMA, comply
in all material
respects with applicable accounting requirements and with the
published rules
and regulations of the SEC with respect
thereto, have been prepared in
accordance with GAAP applied on a consistent basis during the periods
involved
(except as may be indicated in the notes thereto)
and fairly present the
financial positions and the results of operations and cash flows of
PANORAMA as
of the dates thereof or for the periods presented therein (subject, in the
case
of unaudited statements, to normal year-end audit adjustments
not material in
amount).
Section 3.10 No Undisclosed Assets or Liabilities.
Except as disclosed in the PANORAMA Financial Statements, PANORAMA does not have
any liabilities, indebtedness or obligations,
whether known or unknown,
absolute, accrued, contingent or otherwise, and whether
due or to become due
(collectively, "Liabilities"), and, there is no existing condition, situation or
set of circumstances that could reasonably be
expected to result in such a
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Liability, including without limitation any liabilities for foreign,
federal,
state, local or other taxes (including deficiencies, interest and penalties). As
of the Closing Date, PANORAMA shall have no properties or
assets of any kind,
whether real personal or intangible and whether owned or
leased (other than
cash, cash equivalents or marketable securities) and no Liabilities.
Section 3.11 No Contract Rights or Commitments.
On the Closing Date, there will not be any Contract to which PANORAMA is a party
or by which any of its assets or properties are bound.
Section 3.12 No Intellectual Property Rights or Infringement.
PANORAMA does not own, has not obtained the right to use, and has
not violated
nor otherwise trespassed upon any patents, trademarks,
service marks, trade
names, copyrights, and applications, licenses and rights
with respect to the
foregoing, and/or any trade secrets, including know-how, inventions,
designs,
processes, works of authorship, computer programs and/or technical
data and/or
information.
Section 3.13 Litigation.
There is no Action pending or threatened against PANORAMA that,
individually or
in the aggregate, directly or indirectly, would be reasonably likely
to have a
Material Adverse Effect, nor is there any
outstanding judgment, decree or
injunction, in each case against PANORAMA,
that, individually or in the
aggregate, has or would be reasonably likely to have a Material Adverse Effect.
Section 3.14 Taxes.
PANORAMA has timely filed (or has had timely filed on
its behalf) with the
appropriate tax authorities all tax returns required to
be filed by it or on
behalf of it, and each such tax return was complete and accurate in all material
respects, and PANORAMA has timely paid (or has had paid
on its behalf) all
material Taxes due and owing by it, regardless of whether required
to be shown
or reported on a tax return, including Taxes required to be withheld
by it. No
deficiency for a material Tax has been asserted in writing or
otherwise, to
PANORAMA's Knowledge, against PANORAMA or with respect
to any of its assets,
except for asserted deficiencies that either (i) have been resolved and
paid in
full or (ii) are being contested in good faith. There are no material
Liens for
Taxes upon PANORAMA's assets.
Section 3.15 Registration.
No order revoking the registration of PANORAMA or the
Common Stock under the
Exchange Act has been issued by any court, securities commission or
regulatory
authority in the United States and no proceedings for such purpose
are pending
or, to the Knowledge of PANORAMA, after reasonable inquiry, threatened.
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Section 3.16 Trading.
No order suspending the sale or ceasing the trading or quotation of
the Common
Stock in the over the counter market has been issued by any court,
securities
commission or regulatory authority in the United States, and no
proceedings for
such purpose are pending or, to the knowledge of PANORAMA,
after reasonable
inquiry, threatened.
Section 3.17 Books and Records.
The books and records, financial and others, of PANORAMA
are in all material
respects complete and correct and have been maintained in accordance
with good
business accounting practices.
Section 3.18 Insurance.
PANORAMA has no insurable properties and PANORAMA
does not maintain any
insurance covering its assets, business, equipment,
properties, operations,
employees, officers, or directors. To PANORAMA's
knowledge since PANORAMA's
inception there has not been any damage, destruction or loss, which
could have
been deemed as an "Insurance Event".
Section 3.19 Compliance.
PANORAMA is in compliance with all foreign, federal, state and
local laws and
regulations of any Governmental Authority, except to the extent that
failure to
comply would not, individually or in the aggregate, have
a Material Adverse
Effect. PANORAMA has not received any notice asserting a failure,
or possible
failure, to comply with any such law or regulation, the subject of which
notice
has not been resolved as required thereby or otherwise to the
satisfaction of
the party sending the notice, except for such failure as would not, individually
or in the aggregate, have a Material Adverse Effect. PANORAMA does
not, and is
not require to, hold any permits, licenses or franchises
from Governmental
Authorities.
Section 3.20 Absence of Certain Changes.
Since May 23, 2005, except as described in the PANORAMA
SEC Documents or as
expressly permitted or required by this Agreement or with the consent of
LUCAS,
PANORAMA has not:
(a) sold or otherwise issued any shares of capital stock;
(b) acquired any assets or incurred any Liabilities;
(c) amended its certificate of incorporation or bylaws;
(d) waived any rights of value which in the aggregate
are extraordinary or
material considering the business of PANORAMA;
(e) made any material change in its method
of management, operation or
accounting;
8
(f) made any accrual or arrangement for or payment
of bonuses or special
compensation of any kind or any severance or termination pay to any
present or
former officer or employee;
(g) granted or agreed to grant any options, warrants or other
rights for its
stocks, bonds or other corporate securities calling for the
issuance thereof,
which option, warrant or other right has not been cancelled as
of the Closing
Date;
(h) borrowed or agreed to borrow any funds or incurred or become subject to, any
material obligation or liability (absolute or contingent)
except liabilities
incurred in the ordinary course of business;
(i) become subject to any law or regulation which
materially and adversely
affects, or in the future may adversely affect,
the business, operations,
properties, assets or condition of PANORAMA or become subject to any
change or
development in, or effect on, PANORAMA that has or could reasonably be
expected
to have a Material Adverse Effect; or
(j) entered into any agreement to take any action
described in clauses (a)
through (i) above
Section 3.21 Material Transactions or Affiliations.
There is no contract, agreement or arrangement between PANORAMA and
any person
who was, at the time of such contract, agreement or
arrangement an officer,
director or person owning of record, or known by PANORAMA to own
beneficially,
five percent or more of the issued and outstanding Common Stock and which
is to
be performed in whole or in part after the
date hereof. PANORAMA has no
commitment, whether written or oral, to lend any funds to, borrow any money from
or enter into any other material transactions with, any such affiliated person.
Section 3.22 Employees.
PANORAMA has no employees other than its officers and directors. PANORAMA has no
liabilities and/or debts towards any such officers and directors.
PANORAMA has
no agreement, obligation or commitment with
respect to the election of any
individual or individuals to PANORAMA's board of directors.
Section 3.23 Previous Sales of Securities.
Since inception, PANORAMA has sold Common Stock to investors
only in reliance
upon applicable exemptions from the registration
requirements under any
applicable law including the laws of the United States and any applicable states
and all such sales were made in accordance with the laws of said
jurisdictions.
Except as provided in this Agreement, PANORAMA has
not granted or agreed to
grant any registration rights, including piggyback
rights, to any Person or
entity.
Section 3.24 Principals of PANORAMA.
During the past five years, no officer or director of PANORAMA has been:
9
(a) the subject of any bankruptcy petition filed by or against any
business of
which such person was a general partner or executive officer either at the
time
of the bankruptcy or within two years prior to that time;
(b) the subject of any conviction in a criminal proceeding or being subject to a
pending criminal proceeding (excluding traffic
violations and other minor
offenses);
(c) the subject of any order, judgment, or decree, not subsequently
reversed,
suspended or vacated, of any court of competent jurisdiction,
permanently or
temporarily enjoining, barring, suspending or otherwise limiting his involvement
in any type of business, securities or banking activities; or
(d) found by a court of competent
jurisdiction (in a civil action), the
Commission or the Commodity Futures Trading
Commission to have violated a
federal or state securities or commodities law, and the
judgment has not been
reversed, suspended, or vacated.
Section 3.25 Tax-Free Exchange.
PANORAMA has not taken any action, nor does PANORAMA know of any fact,
that is
reasonably likely to prevent the Exchange from qualifying as a
"reorganization"
within the meaning of Section 351 or 368 of the Code.
Section 3.26 Brokers and Finders.
Neither PANORAMA, nor any of its respective officers, directors,
employees or
managers, has employed any broker, finder, advisor or consultant,
or incurred
any liability for any investment banking fees, brokerage fees,
commissions or
finders' fees, advisory fees or consulting fees in connection with the
Exchange
for which PANORAMA has or could have any liability.
Section 3.27 Disclosure.
As of the Closing Date, there is no known material fact or information
relating
to the business, condition (financial or otherwise),
affairs, operations or
assets of PANORAMA and/or its subsidiaries that
has not been disclosed in
writing to LUCAS and/or the LUCAS SHAREHOLDERS by PANORAMA. No representation or
warranty of PANORAMA in this Agreement or any statement or document delivered in
connection herewith or therewith, contained or will contain any untrue statement
of a material fact or fail to state any material fact necessary in order to make
the statements made, in light of the circumstances under which they
were made,
not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF LUCAS
LUCAS hereby makes the following representations and warranties to PANORAMA:
Section 4.1 Organization and Qualification.
10
LUCAS is duly organized and validly existing under the laws of its
jurisdiction
of organization, with the corporate power and authority to own and
operate its
business as presently conducted, except where the failure to be or
have any of
the foregoing would not have a Material Adverse Effect. LUCAS is duly
qualified
as a foreign corporation to do business in each jurisdiction where the character
of its properties owned or held under lease or the
nature of its activities
makes such qualification necessary, except for such failures to be so
qualified
as would not have a Material Adverse Effect. LUCAS has no subsidiaries.
Section 4.2 Authorization; Validity and Effect of Agreement.
LUCAS has the requisite corporate power and authority to execute,
deliver and
perform its obligations under this Agreement and to consummate
the Exchange.
This Agreement has been duly and validly executed and
delivered by LUCAS and,assuming that it has been duly authorized, executed and delivered by
the other
parties hereto, constitutes a legal, valid and binding obligation of
LUCAS, in
accordance with its terms except as
limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of
general application
affecting enforcement of creditors' rights generally.
Section 4.3 No Conflict.
Neither the execution and delivery of this
Agreement by LUCAS nor the
performance by LUCAS of its obligations hereunder, nor the
consummation of the
Exchange, will: (i) conflict with LUCAS's Certificate of
Incorporation; (ii)
violate any statute, law, ordinance, rule or regulation, applicable to
LUCAS or
any of its properties or assets; or (iii) violate, breach, be in
conflict with
or constitute a default (or an event which, with
notice or lapse of time or
both, would constitute a default) under, or permit
the termination of any
provision of, or result in the termination of, the acceleration of the
maturity
of, or the acceleration of the performance of any obligation of LUCAS, or result
in the creation or imposition of any Lien upon any
properties, assets or
business of LUCAS under, any Material Contract or any order, judgment or
decree
to which PANORAMA is a party or by which it or any of its assets or
properties
is bound or encumbered except, in the case of clauses (ii) or (iii),
for such
violations, breaches, conflicts, defaults
or other occurrences which,
individually or in the aggregate, would not have a Material
Adverse Effect on
its obligation to perform its covenants under this Agreement.
Section 4.4 Required Filings and Consents.
The execution and delivery of this Agreement
by LUCAS do not, and the
performance of this Agreement by LUCAS will not require any consent,
approval,
authorization or permit of, or filing with or notification to, any
Governmental
Authority, with respect to LUCAS, except: (i)
compliance with applicable
requirements of the Securities Act, the Exchange Act, and Blue
Sky Laws; and
(ii) where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications would not, individually
or in
the aggregate, reasonably be expected to have a Material
Adverse Effect on
LUCAS, or materially delay consummation of the Exchange or otherwise prevent the
parties hereto from performing their obligations under this Agreement.
11
Section 4.5 Capitalization.
The authorized capital stock of LUCAS consists of 10,000,000
shares of Common
Stock par value $0.001, of which 8,047,292 shares are issued and outstanding and
1,666,667 shares of Series A Preferred Stock, par value $0.01, of which
344,250
shares are issued and outstanding. All LUCAS Shares outstanding as
of the date
of this Agreement have been duly authorized and validly issued, are
fully paid
and nonassessable, and are free of preemptive rights.
Section 4.6 Financial Statements.
LUCAS has previously furnished to PANORAMA true and
complete copies of its
unaudited balance sheet of LUCAS for the period ended
March 31, 2006 and the
related statements of operations, shareholders equity
and cash flows for the
period from inception through March 31, 2006 (all of such financial
statements
of LUCAS collectively, the "LUCAS Financial Statements"). The
LUCAS Financial
Statements (including the notes thereto) present fairly in all material respects
the financial position and results of operations and cash flows of LUCAS
at the
date or for the period set forth therein, in each case in accordance
with GAAP
applied on a consistent basis throughout the
periods involved (except as
otherwise indicated therein). The LUCAS Financial Statements have been
prepared
from and in accordance with the books and records of LUCAS and its subsidiaries,
as applicable.
Section 4.7 No Undisclosed Liabilities.
Except as disclosed in the LUCAS Financial Statements,
LUCAS has no material
liabilities, indebtedness or obligations, except those that have
been incurred
in the ordinary course of business, whether absolute, accrued,
contingent or
otherwise, and whether due or to become due, and to the
Knowledge of LUCAS,
there is no existing condition, situation or set of
circumstances that could
reasonably be expected to result in such
a liability, indebtedness or
obligation.
Section 4.8 Properties and Assets.
LUCAS has good and marketable title to, valid leasehold
interests in, or the
legal right to use, all of the assets, properties
and leasehold interests
reflected in the most recent LUCAS Financial Statements, except for
those sold
or otherwise disposed of since the date of such LUCAS Financial
Statements in
the ordinary course of business consistent with past practice.
Section 4.9 Litigation.
There is no Action pending or threatened against LUCAS that, individually
or in
the aggregate, directly or indirectly, would be
reasonably likely to have a
Material Adverse Effect, nor is there any
outstanding judgment, decree or
injunction, in each case against LUCAS, that, individually or in the
aggregate,
has or would be reasonably likely to have a Material Adverse Effect.
12
Section 4.10 Taxes.
LUCAS has timely filed (or has had timely
filed on its behalf) with the
appropriate tax authorities all tax returns required to
be filed by it or on
behalf of it, and each such tax return was complete and accurate in all material
respects, and LUCAS has timely paid (or has had paid on its behalf) all material
Taxes due and owing by it, regardless of
whether required to be shown or
reported on a tax return, including Taxes required
to be withheld by it. No
deficiency for a material Tax has been asserted in writing or
otherwise, to
LUCAS's Knowledge, against LUCAS or with respect to any of its
assets, except
for asserted deficiencies that either (i) have been resolved and paid in full or
(ii) are being contested in good faith. There are no material
Liens for Taxes
upon LUCAS's assets.
Section 4.11 Compliance.
To LUCAS's Knowledge, LUCAS is in compliance with all federal, state
and local
laws and regulations of any Governmental Authority applicable to its
operations
or with respect to which compliance is a condition of engaging in
the business
thereof, except to the extent that failure to comply would not,
individually or
in the aggregate, have a Material Adverse Effect. LUCAS
has not received any
notice asserting a failure, or possible failure, to comply with any such
law or
regulation, the subject of which notice has not been
resolved as required
thereby or otherwise to the satisfaction of the party sending the notice, except
for such failure as would not, individually or in the aggregate, have a Material
Adverse Effect. To LUCAS's Knowledge, LUCAS holds all
permits, licenses and
franchises from Governmental Authorities required to conduct its business
as it
is now being conducted, except for such failures to have such permits,
licenses
and franchises that would not, individually or in the aggregate, have a Material
Adverse Effect.
Section 4.12 Absence of Certain Changes.
Since the date of the most recent LUCAS Financial Statements, (i) there has been
no change or development in, or effect on, LUCAS that has or could reasonably be
expected to have a Material Adverse Effect,
(ii) LUCAS has not sold,
transferred, disposed of, or agreed to sell, transfer
or dispose of, any
material amount of its assets other than in the ordinary
course of business,
(iii) LUCAS has not paid any dividends or distributed any of its
assets to any
of its shareholders, (iv) LUCAS has not acquired any material amount
of assets
except in the ordinary course of business, nor acquired or merged with any other
business, (v) LUCAS has not waived or amended any of its
respective material
contractual rights except in the ordinary course of business, and (vi) LUCAS has
not entered into any agreement to take any action
described in clauses (i)
through (v) above.
Section 4.13 Previous Sales of Securities.
Since inception, LUCAS has sold Series A Preferred Stock and
Common Stock to
investors only in reliance upon applicable exemptions
from the registration
requirements under any applicable law including the laws of
the United States
and any applicable states and all such sales were made in accordance
with the
laws of said jurisdictions. Except as provided in this Agreement, LUCAS
has not
granted or agreed to grant any registration rights to any Person or entity.
13
LUCAS has granted "piggyback" registration rights to the holders of its SERIES A
Preferred Stock. Each holder of the Series A Preferred Shares has
the right to
include their shares in any registration statement filed with the SEC by
LUCAS.
The shares issued to the Series A Preferred
shareholders pursuant to this
Agreement shall retain their registration rights previously granted by LUCAS and
may be included in any future registration statement filed by
PANORAMA. The
total number of shares afforded such rights are 372,617 shares
held by twelve
LUCAS SHAREHOLDERS.
Section 4.14 Principals of LUCAS.
During the past five years, no officer or director of LUCAS has been:
(a) the subject of any bankruptcy petition filed by or against any
business of
which such person was a general partner or executive officer either at the
time
of the bankruptcy or within two years prior to that time;
(b) the subject of any conviction in a criminal proceeding or being subject to a
pending criminal proceeding (excluding traffic
violations and other minor
offenses); (c) the subject of any order, judgment, or decree, not
subsequently
reversed, suspended or vacated, of any court
of competent jurisdiction,
permanently or temporarily enjoining, barring, suspending or otherwise
limiting
his involvement in any type of business, securities or banking activities; or
(d) found by a court of competent
jurisdiction (in a civil action), the
Commission or the Commodity Futures Trading
Commission to have violated a
federal or state securities or commodities law, and the
judgment has not been
reversed, suspended, or vacated.
Section 4.15 Brokers and Finders.
LUCAS has not, nor to LUCAS's Knowledge have any of its
officers, directors,
employees or managers, employed any broker, finder, advisor or
consultant, or
incurred any liability for any investment
banking fees, brokerage fees,
commissions or finders' fees, advisory fees or consulting
fees in connection
with the Exchange for which LUCAS has or could have any liability.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF EACH LUCAS SHAREHOLDER
Each LUCAS SHAREHOLDER, severally and not jointly,
hereby make the following
representations and warranties to LUCAS and PANORAMA:
Section 5.1 Authority and Validity.
Each LUCAS SHAREHOLDER has all requisite power to
execute and deliver, to
perform its obligations under, and to consummate the transactions
contemplated
by, this Agreement.
14
Section 5.2 Validity.
Upon the execution and delivery of each other
document to which each LUCAS
SHAREHOLDER is a party (assuming due execution and delivery by each other
party
thereto) each such other document will be
the legal, valid and binding
obligations of such LUCAS SHAREHOLDER,
enforceable against such LUCAS
SHAREHOLDER in accordance with their respective
terms except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally.
Section 5.3 No Breach or Violation.
The execution, delivery and performance by each
LUCAS SHAREHOLDER of this
Agreement and each other document to which it is a party, and the
consummation
of the transactions contemplated hereby and thereby in accordance with the terms
and conditions hereof and thereof, do not and will not
conflict with (i) the
certificate of incorporation or bylaws of such LUCAS SHAREHOLDER, if applicable,
or (ii) any agreement to which such LUCAS SHAREHOLDER is a party,
or by which
such LUCAS SHAREHOLDER or such LUCAS SHAREHOLDER's Assets are bound or affected.
Section 5.4 Consents and Approvals.
No consent, approval, authorization or order of, registration or filing with, or
notice to, any Government Authority or any other Person
is necessary to be
obtained, made or given by each LUCAS SHAREHOLDER
in connection with the
execution, delivery and performance by such LUCAS SHAREHOLDER of this
Agreement
or any other document to which it is a party or for the
consummation by such
LUCAS SHAREHOLDER of the transactions contemplated hereby or thereby.
Section 5.5 Title.
LUCAS Shares to be delivered by each LUCAS SHAREHOLDER in connection
with the
transactions contemplated herein are, and at the Closing
will be owned, of
record and beneficially, solely by such LUCAS SHAREHOLDER, free and clear of any
Lien and represent such LUCAS SHAREHOLDER's entire ownership interest in LUCAS.
Section 5.6 Investor Status.
Each LUCAS SHAREHOLDER is an "accredited investor" as that
term is defined in
Rule 501(a) of Regulation D under the Securities Act and has properly
completed
the form attached hereto as Schedule III.
Section 5.7 No Government Review.
Each LUCAS SHAREHOLDER understands that neither
the SEC nor any securities
commission or other Governmental Authority of any
state, country or other
jurisdiction has approved the issuance of the Common
Stock or passed upon or
15
endorsed the merits of the Common Stock or the Exchange Agreement or any
of the
other documents relating to the Exchange
(collectively, the "Offering
Documents"), or confirmed the accuracy of,
determined the adequacy of, or
reviewed the Exchange Agreement or the other Offering Documents.
Section 5.8 Investment Intent.
The shares of Common Stock are being acquired by each LUCAS SHAREHOLDER for each
LUCAS SHAREHOLDER's own account for investment purposes only, not as
a nominee
or agent and not with a view to the resale or distribution of any part
thereof,
and each LUCAS SHAREHOLDER has no present intention of
selling, granting any
participation in or otherwise distributing the same.
Each LUCAS SHAREHOLDER
further represents that the LUCAS SHAREHOLDER does
not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or third person with
respect to any of LUCAS
Shares.
Section 5.9 Restrictions on Transfer.
Each LUCAS SHAREHOLDER understands that the shares of Common Stock have not been
registered under the Securities Act or registered or qualified under any foreign
or state securities law, and may not be,
directly or indirectly, sold,
transferred, offered for sale, pledged, hypothecated or
otherwise disposed of
without registration under the Securities Act and registration or
qualification
under applicable state securities laws or the
availability of an exemption
therefrom. In any case where such an exemption is relied
upon by each LUCAS
SHAREHOLDER from the registration requirements of the
Securities Act and the
registration or qualification requirements of such state securities
laws, each
LUCAS SHAREHOLDER shall furnish PANORAMA with an opinion of counsel stating that
the proposed sale or other disposition of such
securities may be effected
without registration under the Securities Act and
will not result in any
violation of any applicable state securities laws relating to the
registration
or qualification of securities for sale, such
counsel and opinion to be
satisfactory to PANORAMA. Each LUCAS SHAREHOLDER acknowledges that it is able to
bear the economic risks of an investment in the Common Stock for an
indefinite
period of time, and that its overall commitment to
investments that are not
readily marketable is not disproportionate to its net worth.
Section 5.10 Informed Investment.
Each LUCAS SHAREHOLDER has made such investigations in connection herewith as it
deemed necessary or desirable so as to make an informed
investment decision
without relying upon LUCAS for legal or tax advice related to this
investment.
In making its decision to acquire the Common Stock, each LUCAS
SHAREHOLDER has
not relied upon any information other than
information contained in this
Agreement and in the other Offering Documents.
16
Section 5.11 Access to Information.
Each LUCAS SHAREHOLDER acknowledges that it has had access to and
has reviewed
all documents and records relating to PANORAMA, including, but not
limited to,
PANORAMA SEC Documents, that it has deemed
necessary in order to make an
informed investment decision with respect to an investment in PANORAMA;
that it
has had the opportunity to ask representatives of PANORAMA certain questions and
request certain additional information regarding the
terms and conditions of
such investment and the finances, operations, business and prospects of PANORAMA
and has had any and all such questions
and requests answered to its
satisfaction; and that based on the foregoing it understands the risks and other
considerations relating to an investment in PANORAMA.
Section 5.12 Reliance on Representations.
Each LUCAS SHAREHOLDER understands that the shares of Common
Stock are being
offered and sold to it in reliance on specific exemptions from the
registration
and/or public offering requirements of the U.S. federal and
state securities
laws and that PANORAMA and LUCAS is relying in part upon the truth and
accuracy
of, and such LUCAS SHAREHOLDER's compliance
with, the representations,
warranties, agreements, acknowledgments and understandings of such LUCAS
SHAREHOLDER set forth herein in order to determine the
availability of such
exemptions and the eligibility of such LUCAS SHAREHOLDER to acquire
the Common
Stock. Each LUCAS SHAREHOLDER represents and warrants to PANORAMA and LUCAS that
any information the LUCAS SHAREHOLDER has heretofore
furnished or furnishes
herewith to PANORAMA and LUCAS is complete and accurate, and further
represents
and warrants that it will notify and supply corrective information
to PANORAMA
and LUCAS immediately upon the occurrence of any change therein occurring
prior
to LUCAS's issuance of the Common Stock. Within five (5) days after receipt of a
request from LUCAS, each LUCAS SHAREHOLDER will provide such
information and
deliver such documents as may reasonably be necessary to comply with any and all
laws and regulations to which LUCAS is subject.
Section 5.13 No General Solicitation.
Each LUCAS SHAREHOLDER is unaware of, and in deciding to
participate in the
transactions contemplated hereby is in no way relying upon, and did
not become
aware of the transactions contemplated hereby through or
as a result of, any
form of general solicitation or general
advertising including, without
limitation, any article, notice, advertisement or other communication
published
in any newspaper, magazine or similar media, or broadcast over
television or
radio or the internet, in connection with the transactions contemplated hereby.
Section 5.14 Placement and Finder's Fees.
No agent, broker, investment banker, finder, financial advisor or
other person
acting on behalf of the LUCAS SHAREHOLDER or under its authority is
or will be
entitled to any broker's or finder's fee or any other commission or similar fee,
directly or indirectly, in connection with the transactions contemplated hereby,
and no person is entitled to any fee or commission or like
payment in respect
17
thereof based in any way on any agreements, arrangements or understanding
made
by or on behalf of the LUCAS SHAREHOLDER.
ARTICLE VI
CERTAIN COVENANTS
Section 6.1 Conduct of Business by PANORAMA.
Except (i) as expressly permitted or required by this Agreement,
or (ii) with
the consent of LUCAS, during the period
commencing with the date of this
Agreement and continuing until the Closing Date, PANORAMA shall remain
inactive
and not conduct (directly and/or indirectly, including through
subsidiaries,
other than subsidiaries that will be disposed of prior to Closing,
and subject
to the provisions hereof) any trade or business, preserve
intact its business
organizations and maintain the registration of PANORAMA
and the Common Stock
under the Exchange Act.
Section 6.2 Access to Information.
At all times prior to the Closing or the earlier termination of this
Agreement
in accordance with the provisions of Article IX, and in
each case subject to
Section 6.3 below, each party hereto shall provide to the other
party (and the
other party's authorized representatives) reasonable
access during normal
business hours and upon reasonable prior notice to the
premises, properties,
books, records, assets, liabilities, operations, contracts, personnel, financial
information and other data and information
of or relating to such party
(including without limitation all written
proprietary and trade secret
information and documents, and other written information and documents
relating
to intellectual property rights and matters), and will cooperate with the
other
party in conducting its due diligence investigation of such party, provided that
the party granted such access shall not
interfere unreasonably with the
operation of the business conducted by the party granting access,
and provided
that no such access need be granted to privileged information or any
agreements
or documents subject to confidentiality agreements.
Section 6.3 Confidentiality; No Solicitation.
Each party shall hold, and shall cause
its respective Affiliates and
representatives to hold, all Confidential Information made
available to it in connection with the Exchange in
strict confidence, shall not use such
information except for the sole purpose of evaluating the Exchange and shall not
disseminate or disclose any of such information other than to
its directors,
officers, managers, employees, shareholders, interest
holders, Affiliates,
agents and representatives, as applicable, who need to know such information for
the sole purpose of evaluating the Exchange (each of whom shall be
informed in
writing by the disclosing party of the confidential nature of such
information
and directed by such party in writing to treat such information confidentially).
The above limitations on use, dissemination and disclosure
shall not apply to
Confidential Information that (i) is learned by the
disclosing party from a
third party entitled to disclose it; (ii) becomes known
publicly other than
through the disclosing party or any third party who received the
same from the
disclosing party, provided that the disclosing party had no
Knowledge that the
18
disclosing party was subject to an obligation of
confidentiality; (iii) is
required by law or court order to be disclosed by
the parties; or (iv) is
disclosed with the express prior written consent thereto of the other party. The
parties shall undertake all necessary steps to
ensure that the secrecy and
confidentiality of such information will be maintained. In the event a
party is
required by court order or subpoena to disclose information which is
otherwise
deemed to be confidential or subject to
the confidentiality obligations
hereunder, prior to such disclosure, the disclosing party
shall: (i) promptly
notify the non-disclosing party and, if having
received a court order or
subpoena, deliver a copy of the same to the non-disclosing party; (ii) cooperate
with the non-disclosing party, at the expense of the non-disclosing
party, in
obtaining a protective or similar order with respect to such
information; and
(iii) provide only that amount of information as the disclosing party is advised
by its counsel is necessary to strictly
comply with such court order or
subpoena.
Section 6.4 Further Assurances.
Each of the parties hereto agrees to use its best efforts before and
after the
Closing Date to take or cause to be taken all action, to do or cause to be done,
and to assist and cooperate with the other party hereto in
doing, all things
necessary, proper or advisable under applicable laws to
consummate and make
effective, in the most expeditious manner practicable, the Exchange,
including,
but not limited to: (i) satisfying the conditions precedent to the
obligations
of any of the parties hereto; (ii) obtaining all waivers, consents and approvals
from other parties necessary for the consummation of the Exchange, (iii)
making
all filings with, and obtain all consents, approvals and authorizations that are
required to be obtained from, Governmental Authorities, (iv)
defending of any
lawsuits or other legal proceedings, whether
judicial or administrative,
challenging this Agreement or the performance of the obligations hereunder;
and
(v) executing and delivering such instruments, and taking such other actions, as
the other party hereto may reasonably require in order to carry out
the intent
of this Agreement.
Section 6.5 Public Announcements.
PANORAMA, the LUCAS SHAREHOLDERS and LUCAS shall consult with each other
before
issuing any press release or otherwise making any public statements with respect
to the Exchange or this Agreement, and shall not issue any other
press release
or make any other public statement without prior consent of the
other parties,
except as may be required by law or, with respect to PANORAMA, by
obligations
pursuant to rule or regulation of the Exchange Act, the Securities Act, any rule
or regulation promulgated thereunder or any rule or regulation of
the National
Association of Securities Dealers.
Section 6.6 Notification of Certain Matters.
Each party hereto shall promptly notify the
other party in writing of any
events, facts or occurrences that
would result in any breach of any
representation or warranty or breach of any covenant by such party
contained in
this Agreement.
19
Section 6.7 Financial Statements.
Within five (5) days after the Closing, LUCAS shall
deliver to PANORAMA the
LUCAS Financial Statements prepared in compliance
with GAAP, consistently
applied, and in accordance with all applicable SEC
rules and regulations,
including Regulation S-X promulgated under the Securities Act. LUCAS
shall use
its best efforts to have its accountant consent
to PANORAMA's use of and
reliance on the LUCAS Financial Statements as may be required in connection with
any filings made by PANORAMA under the United States federal securities laws. In
the event that LUCAS does not provide the required Financial Statements so
that
PANORAMA may timely comply with its SEC Reporting Obligations, then PANORAMA may
rescind this transaction as set forth in Section 2.2(b) above.
Section 6.8 Prohibition on Trading in PANORAMA Securities.
All parties acknowledge that information concerning the
matters that are the
subject matter of this Agreement may constitute material non-public
information
under United States federal securities laws, and that
United States federal
securities laws prohibit any person who has
received material non-public
information relating to PANORAMA from purchasing
or selling securities of
PANORAMA, or from communicating such
information to any person under
circumstances in which it is reasonably foreseeable that such person
is likely
to purchase or sell securities of PANORAMA. Accordingly, until such time
as any
such non-public information has been adequately disseminated to the
public, the
parties to this Agreement shall not purchase or sell any securities of PANORAMA.
Section 6.9 Tax-Free Exchange Status.
The parties hereto shall take (or refrain from
taking) any and all actions
necessary to ensure that, for United States federal income tax purposes: (i) the
Exchange shall qualify as a reorganization within
the meaning of Sections
368(a)(1)(B) of the Code, and (ii) that the tax consequences to the shareholders
of both companies are minimized.
Section 6.10 Disposition of Assets and Liabilities.
Prior to the Closing, PANORAMA shall take all
action required in order to
dispose of all of PANORAMA's Assets (other than cash,
cash equivalents and
marketable securities) and satisfy all of its Liabilities in accordance with any
and all applicable laws and regulations. PANORAMA and Crown Partners
(severally
and jointly) shall be responsible for and shall indemnify and hold LUCAS and the
LUCAS SHAREHOLDERS harmless from and/or against any and all
demands, claims,
actions or causes of action, judgments,
assessments, losses, liabilities
(including tax liabilities), damages or penalties and reasonable attorneys' fees
and related disbursements suffered by LUCAS, the LUCAS
SHAREHOLDERS and/or
PANORAMA resulting from or arising out of or in connection with any such
Assets
and/or Liabilities of PANORAMA.
20
Section 6.11 Waiver of Claims.
Each LUCAS SHAREHOLDER for himself and his heirs, executors,
administrators,
attorneys and assigns, hereby releases
and acknowledges full accord,
satisfaction, discharge and settlement of,
and further irrevocably and
unconditionally forever releases, remises, and acquits
LUCAS and any of its
present or former officers, directors,
shareholders, employees, agents,
affiliates, parents, subsidiaries, predecessors,
successors, attorneys and
assigns (the "LUCAS Released Parties") of and
from any and all manner of
actions, causes of action, arbitrations, controversies,
expenses, damages,
liabilities, demands, claims, counterclaims, cross-claims, obligations,
losses,
costs, promises, covenants, agreements, and suits of any kind or nature, whether
known or unknown, whether contingent or fixed, whether developed or undeveloped,
in law or equity, in tort or in contract from the beginning of time
through the
date of the full execution of this Agreement and the attachments and
schedules
hereto, which he may have or claim to have against LUCAS Released Parties.
Each
LUCAS SHAREHOLDER expressly acknowledges
that such claims released and
discharged by this Section include, but are not limited to, any and
all claims
against LUCAS Released Parties for remuneration,
compensation or benefits
(including but not limited to fees, salary, expense reimbursements, commissions,
stock, options or warrants for stock, success fees, insurance or other benefits,
or any other form of remuneration, compensation or benefits of any kind) and any
and all other claims of any kind and nature arising prior to
execution of this
Agreement and the attachments and schedules hereto, which relate in
any way to
LUCAS. This release shall extend to all claims, known and unknown.
Each LUCAS
SHAREHOLDER is aware of, and specifically waives the provisions of Section
1542of the Civil Code of the State of California, which states as follows:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the
release, which if
known by him must have materially affected his settlement with the debtor"
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE EXCHANGE
Section 7.1 Conditions to Obligations of LUCAS.
The obligations of LUCAS and LUCAS SHAREHOLDERS to consummate the Exchange shall
be subject to the fulfillment, or written waiver by LUCAS, at
or prior to the
Closing, of each of the following conditions:
(a) PANORAMA shall have delivered to LUCAS each of the
documents required by
Section 2.2(a) of this Agreement;
(b) The representations and warranties of PANORAMA set out in
this Agreement
shall be true and correct in all material respects at and as of the time
of the
Closing as though such representations and warranties
were made at and as of
such time;
21
(c) PANORAMA shall have performed and complied in all material respects with all
covenants, conditions, obligations and agreements required by this
Agreement to
be performed or complied with by such parties on or prior to the Closing Date;
(d) All consents, approvals, permits, authorizations and orders
required to be
obtained from, and all registrations, filings and notices
required to be made
with or given to, any Governmental Authority or Person as provided herein
shall
have been obtained;
(e) LUCAS shall have completed a due
diligence review of the business,
operations, financial condition and prospects of PANORAMA and
shall have been
satisfied with the results of its due diligence review in its sole and
absolute
discretion;
(f) There has been no Material Adverse Effect on the business,
condition or
prospects of PANORAMA until the Closing Date;
(g) PANORAMA shall file with the SEC a Schedule 14(f)-1
with respect to the
change of control transactions described in this
Agreement, and shall have
caused the Schedule 14(f)01 to be mailed to each registered holder of its Common
Stock;
(h) PANORAMA shall have no Assets (other than
cash, cash equivalents and
marketable securities) or Liabilities;
(i) Holders of all of the LUCAS Shares shall have become party to the
Exchange;
and
(k) The outstanding shares of Common Stock of PANORAMA
prior to the Closing
shall not exceed 2,500,000 shares.
Section 7.2 Conditions to Obligations of PANORAMA.
The obligations of PANORAMA to consummate the Exchange shall be
subject to the
fulfillment, or written waiver by PANORAMA, at or prior to the
Closing of each
of the following conditions:
(a) LUCAS shall have delivered to PANORAMA each of the
documents required by
Section 2.2(b) of this Agreement;
(b) The LUCAS SHAREHOLDERS shall have delivered to
PANORAMA the documents
required by Section 2.2(c) of this Agreement;
(c) The representations and warranties of LUCAS and the LUCAS
SHAREHOLDERS set
out in this Agreement shall be true and correct in all material respects
at and
as of the time of the Closing as though such representations and warranties were
made at and as of such time;
22
(d) LUCAS shall have performed and complied in all material
respects with all
covenants, conditions, obligations and agreements required by this
Agreement to
be performed or complied with by LUCAS on or prior to the Closing Date;
(e) All consents, approvals, permits, authorizations and orders
required to be
obtained from, and all registrations, filings and notices
required to be made
with or given to, any Governmental Authority or Person as provided herein
shall
have been obtained;
(f) PANORAMA shall have completed a due diligence
review of the business,
operations, financial condition and prospects of
LUCAS and shall have been
satisfied with the results of its due diligence review in its sole and
absolute
discretion;
(g) There has been no Material Adverse Effect on the business,
condition or
prospects of LUCAS until the Closing Date;
(h) LUCAS shall have paid all of the costs and expenses of LUCAS associated with
the transactions contemplated herein;
(i) Holders of at least 100% of LUCAS Shares shall have
become party to the
Exchange; and
(j) The outstanding shares of Common Stock of LUCAS prior to the
Closing shall
not exceed 8,047,292 shares and the outstanding shares
of Series A Preferred
Stock of LUCAS prior to the Closing shall not exceed 344,250 shares.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnification by PANORAMA.
(a) Notwithstanding any other indemnification provision hereunder, PANORAMA (the
"Indemnifying Party") shall indemnify and hold harmless LUCAS and its
officers,
directors and employees and each of the LUCAS SHAREHOLDERS (each an "Indemnified
Party"), from and against any and all demands, claims,
actions or causes of
action, judgments, assessments, losses, liabilities, damages
or penalties and
reasonable attorneys' fees and related disbursements (collectively,
"Claims")
suffered by such Indemnified Party resulting from
or arising out of (i) any
inaccuracy in or breach of any of the representations or warranties made
by the
Indemnifying Party at the time they were made, and, except for
representations
and warranties that speak as of a specific date or time (which need only be true
and correct as of such date or time), on and as of the Closing Date,
(ii) any
breach or nonfulfillment of any covenants or agreements made by the Indemnifying
Party, (iii) any misrepresentation made by the Indemnifying Party, in each
case
as made herein or in the Schedules or Exhibits annexed hereto or in any
closing
certificate, schedule or any ancillary certificates
or other documents or
instruments furnished by the Indemnifying Party pursuant hereto or in connection
with the Exchange, (iv) any untimely filing of or
inaccuracy in, any SEC
23
Document, and (v) the operations and liabilities of PANORAMA and/or
any of its
subsidiaries, whether known or unknown, arising out of
any action, omission
and/or period of time preceding the Closing Date, including but not
limited to
any taxes levied with respect to same. The Indemnified Party's right
hereunder
may be exercised against Crown Partners, whether together and/or apart, before
and/or after, with or without, exercising same right against PANORAMA, all
upon
the Indemnified Party's sole discretion.
Section 8.2 Indemnification by LUCAS.
(a) Notwithstanding any other indemnification provision hereunder, LUCAS and the
LUCAS SHAREHOLDERS (each, the "Indemnifying
Party") shall, severally and
jointly, indemnify and hold harmless PANORAMA,
its officers, directors,
attorneys, accountants and employees (each an "Indemnified
Party"), from and
against any and all demands, claims, actions or causes of
action, judgments,
assessments, losses, liabilities, damages or penalties and reasonable attorneys'
fees and related disbursements (collectively,
"Claims") suffered by such
Indemnified Party resulting from or arising out of (i) any
inaccuracy in or
breach of any of the representations or warranties made
by the Indemnifying
Party at the time they were made, and, except for representations and warranties
that speak as of a specific date or time (which need only be true and correct as
of such date or time), on and as of the Closing
Date, (ii) any breach or
nonfulfillment of any covenants or agreements made by the Indemnifying Party, or
(iii) any misrepresentation made by the Indemnifying Party, in each case as made
herein or in the Schedules or Exhibits annexed
hereto or in any closing
certificate, schedule or any ancillary certificates
or other documents or
instruments furnished by the Indemnifying Party pursuant hereto or in connection
with the Exchange.
Section 8.3 Indemnification Procedures for Third-Party Claim.
(a) Upon obtaining knowledge of any Claim by a third party which has given
rise
to, or is expected to give rise to, a claim for indemnification hereunder,
the
Indemnified Party shall give written notice ("Notice of Claim") of such claim or
demand to the Indemnifying Party, specifying
in reasonable detail such
information as the Indemnified Party
may have with respect to such
indemnification claim (including copies of any summons,
complaint or other
pleading which may have been served on it and any
written claim, demand,
invoice, billing or other document evidencing or asserting the same). No failure
or delay by the Indemnified Party in the performance of
the foregoing shall
reduce or otherwise affect the obligation of the Indemnifying Party to indemnify
and hold the Indemnified Party harmless, except to the extent that such
failure
or delay shall have actually adversely affected the Indemnifying Party's ability
to defend against, settle or satisfy any Claims for which the Indemnified
Party
entitled to indemnification hereunder.
(b) If the claim or demand set forth in the
Notice of Claim given by an
Indemnified Party pursuant to Section 8.1 hereof is a claim or demand
asserted
by a third party, the Indemnifying Party shall have fifteen (15) days
after the
date on which Notice of Claim is given to notify Indemnified Party in writing of
their election to defend such third party
claim or demand on behalf of the
Indemnified Party. If the Indemnifying Party elects to defend such
third party
24
claim or demand, Indemnified Party shall make available
to the Indemnifying
Party and its agents and representatives all records and other
materials that
are reasonably required in the defense of such third party claim or
demand and
shall otherwise cooperate with, and assist the Indemnifying Party in the defense
of, such third party claim or demand. So long as the
Indemnifying Party is
defending such third party claim in good faith, the Indemnified Party
shall not
pay, settle or compromise such third party claim or demand. If the
Indemnifying
Party elects to defend such third party claim or demand, the Indemnified
Party
shall have the right to participate in the defense of such third party
claim or
demand, at such Indemnified Party's own expense. In the event,
however, that
such Indemnified Party reasonably determines that representation by
counsel to
the Indemnifying Party of both the Indemnifying Party and such Indemnified Party
could reasonably be expected to present counsel with a
conflict of interest,
then the Indemnified Party may employ separate counsel to represent or defend it
in any such action or proceeding and the Indemnifying Party
will pay the fees
and expenses of such counsel. If the Indemnifying Party does not elect to defend
such third party claim or demand or does not defend such third
party claim or
demand in good faith, the Indemnified Party shall have the right, in addition to
any other right or remedy it may have hereunder, at the
Indemnifying Party's
expense, to defend such third party claim or demand; provided, however, that (i)
such Indemnified Party shall not have any obligation to
participate in the
defense of, or defend, any such third party
claim or demand; (ii) such
Indemnified Party's defense of or its participation in the defense
of any such
third party claim or demand shall not in any way
diminish or lessen the
obligations of the Indemnifying Party under the agreements of
indemnification
set forth in this Article VII; and (iii) such Indemnified Party may
not settle
any claim without the consent of the Indemnifying Party, which consent shall not
be unreasonably withheld or delayed.
(c) The Indemnifying Party and the other Indemnified
Parties, if any, shall
cooperate fully in all aspects of any
investigation, defense, pre-trial
activities, trial, compromise, settlement or discharge of any claim
in respect
of which indemnity is sought pursuant to this Article VIII, including,
but not
limited to, by providing the other party with reasonable access to employees and
officers (including as witnesses) and other information.
(d) Except for third party claims being defended in good faith, the Indemnifying
Party shall satisfy its obligations under this ARTICLE
VIII in respect of a
valid claim for indemnification hereunder that is not contested by LUCAS in good
faith in cash within thirty (30) days after the date on which Notice of Claim is
given.
Section 8.4 Indemnification Procedures for Non-Third Party Claims.
In the event any Indemnified Party should have an indemnification claim
against
the Indemnifying Party under this Agreement that does not involve a
claim by a
third party, the Indemnified Party shall promptly deliver notice of
such claim
to the Indemnifying Party in writing and in reasonable detail.
The failure by any Indemnified Party to so notify the Indemnifying Party
shall not relieve the
Indemnifying Party from any liability that it may
have to such Indemnified
Party, except to the extent that the Indemnifying
Party has been actually
prejudiced by such failure. If the Indemnifying
Party does not notify the
25
Indemnified Party within fifteen (15) Business Days
following its receipt of
such notice that the Indemnifying Party disputes
such claim, such claim
specified by the Indemnifying Party in such notice shall be conclusively
deemed
a liability of the Indemnifying Party under
this Article VIII and the
Indemnifying Party shall pay the amount of such liability to
the Indemnified
Party on demand, or in the case of any notice in which the amount of
the claim
is estimated, on such later date when the amount
of such claim is finally
determined. If the Indemnifying Party disputes its
liability with respect to
such claim in a timely manner, LUCAS and the Indemnified Party shall
proceed in
good faith to negotiate a resolution of such dispute
and, if not resolved
through negotiations, such dispute shall be resolved pursuant to Section 10.11.
Section 8.5 Limitations on Indemnification.
No claim for indemnification under this Article VIII shall be
asserted by, and
no liability for such indemnify shall be enforced against,
the Indemnifying
Party to the extent the Indemnified
Party has theretofore received
indemnification or otherwise been compensated for such Claim. In the event
that
an Indemnified Party shall later collect any such
amounts recovered under
insurance policies with respect to any Claim
for which it has previously
received payments under this Article VIII from the
Indemnifying Party, such
Indemnified Party shall promptly repay to the Indemnifying
Party such amount
recovered.
ARTICLE IX
TERMINATION
Section 9.1 Termination.
This Agreement may be terminated at any time prior to the Closing:
(a) by mutual consent of PANORAMA and LUCAS;
(b) by LUCAS, if the Closing shall not have occurred on or before June 30,
2006
or if any of the conditions to the Closing set forth in Section 7.1
shall have
become incapable of fulfillment by June 30, 2006 and shall not have been
waived
in writing by LUCAS; provided, however, that
the right to terminate this
Agreement under this Section 9.1(b) shall not be
available to LUCAS if its
action or failure to act has been a principal
cause of or resulted in the
failure of the Exchange to occur on or before such
date and such action or
failure to act constitutes a breach of this Agreement;
(c) by PANORAMA, if the Closing shall not have occurred on or
before June 30,
2006 or if any of the conditions to the Closing set forth in Section
7.2 shall
have become incapable of fulfillment by June 30, 2006 and
shall not have been
waived in writing by PANORAMA; provided, however, that the
right to terminate
this Agreement under this Section 9.1(c) shall not be available to
PANORAMA if
its action or failure to act has been a principal cause of or
resulted in them
failure of the Exchange to occur on or before such
date and such action or
failure to act constitutes a breach of this Agreement;
26
(d) by PANORAMA or LUCAS if any Governmental or judicial
Authority shall have
issued an injunction, order, decree or ruling
or taken any other action
restraining, enjoining or otherwise prohibiting any
material portion of the
Exchange and such injunction, order, decree, ruling or other action
shall have
become final and nonappealable;
Section 9.2 Procedure and Effect of Termination.
In the event of termination of this Agreement pursuant to
Section 9.1 hereof,
written notice thereof shall forthwith be given by the terminating party
to the
other party, and, except as set forth below, this Agreement shall
terminate and
be void and have no effect and the Exchange shall be
abandoned without any
further action by the parties hereto; provided that, if such termination
shall
result from the failure of a party to perform
a covenant, obligation or
agreement in this Agreement or from the breach by
PANORAMA, or LUCAS of any
representation or warranty contained herein, such party shall
be fully liable
for any and all damages incurred or suffered by the other party as a
result of
such failure or breach. The provisions of Section 6.3, Section 6.5, Section 9.2,
and ARTICLE VIII and ARTICLE X hereof (with the exception of Section 10.5
only)
shall survive the termination of this Agreement for any reason whatsoever.
ARTICLE X
MISCELLANEOUS
Section 10.1 Entire Agreement.
This Agreement and the Schedules and Exhibits
hereto contain the entire
agreement between the parties and supersedes
all prior agreements and
understandings, both written and oral, between the parties with
respect to the
subject matter hereof.
Section 10.2 Amendment and Modifications.
This Agreement may not be amended, modified or
supplemented except by an
instrument or instruments in writing signed
by the party against whom
enforcement of any such amendment, modification or supplement is sought.
Section 10.3 Extensions and Waivers.
At any time prior to the Closing, the parties hereto entitled to the benefits of
a term or provision may (a) extend the time for the performance
of any of the
obligations or other acts of the parties hereto, (b) waive any
inaccuracies in
the representations and warranties contained
herein or in any document,
certificate or writing delivered pursuant hereto, or (c) waive
compliance with
any obligation, covenant, agreement or condition contained herein. Any agreement
on the part of a party to any such extension or waiver shall
be valid only if
set forth in an instrument or instruments in writing signed by the party against
whom enforcement of any such extension or waiver is sought. No failure or
delay
on the part of any party hereto in the exercise of any right
hereunder shall
27
impair such right or be construed to be a waiver of, or
acquiescence in, any
breach of any representation, warranty, covenant or agreement.
Section 10.4 Successors and Assigns.
This Agreement shall be binding upon and inure to the
benefit of the parties
hereto and their respective successors and assigns, provided,
however, that no
party hereto may assign its rights or delegate its
obligations under this
Agreement without the express prior written consent of the other
party hereto.
Except as provided in Article VIII, nothing in this Agreement
is intended to
confer upon any person not a party hereto (and their successors and assigns) any
rights, remedies, obligations or liabilities under
or by reason of this
Agreement.
Section 10.5 Survival of Representations, Warranties and Covenants.
The representations and warranties contained herein shall
survive the Closing
and shall thereupon terminate two (2) years from the Closing. All
covenants and
agreements contained herein which by their terms contemplate actions
following
the Closing shall survive the Closing and remain in full
force and effect in
accordance with their terms.
Section 10.6 Headings; Definitions.
The Section and Article headings contained in this Agreement
are inserted for
convenience of reference only and will not affect the meaning or
interpretation
of this Agreement. All references to Sections or Articles contained herein
mean
Sections or Articles of this Agreement unless otherwise stated. All
capitalized
terms defined herein are equally applicable to both the
singular and plural
forms of such terms.
Section 10.7 Severability.
If any provision of this Agreement or the application thereof to any
Person or
circumstance is held to be invalid or unenforceable to any extent, the remainder
of this Agreement shall remain in full force and effect and shall be reformed to
render the Agreement valid and enforceable while
reflecting to the greatest
extent permissible the intent of the parties.
Section 10.8 Specific Performance.
The parties hereto agree that in the event that any party fails to
consummate
the Exchange in accordance with the terms of this Agreement, irreparable
damage
would occur, no adequate remedy at law would
exist and damages would be
difficult to determine. It is accordingly agreed
that the parties shall be
entitled to specific performance in such event, without the necessity of proving
the inadequacy of money damages as a remedy, in addition to any other
remedy at
law or in equity.
28
Section 10.9 Notices.
All notices hereunder shall be sufficiently given for all purposes
hereunder if
in writing and delivered personally, sent by documented
overnight delivery
service or, to the extent receipt is confirmed, telecopy, telefax, email or
other electronic transmission service to the appropriate
address or number as
set forth below (or any other address duly notified by a party hereto
pursuant
to the provisions of this Section 10.9).
If to PANORAMA:
Suite 720 - 999 West Broadway
Vancouver, British Colombia, Canada V5Z 1K5
(604) 730-8882 Telephone
with a copy to:
Gregory S. Yanke, Esq.
200-675 West Hastings Street
Vancouver, British Columbia, Canada VGR 1N2
(604) 681-7600 Telephone
(604) 681-7622 Facsimile
If to LUCAS:
520 South El Camino Real
# 423
San Mateo, CA 94402
(650) 343-4535 Telephone
(650) 240-0259 Facsimile
e-mail: info@lucasenergy.com
with a copy to:
Marcus A. Luna, Esq.
1000 N. Green Valley Pkwy.
PMB # 300-137
Henderson, NV 89074
(702) 379-2050 Telephone
(702) 446-5513 Facsimile
e-mail: mlunaesq@yahoo.com
29
If to a LUCAS SHAREHOLDER:
c/o Lucas Energy, Inc.
520 South El Camino Real
# 423
San Mateo, CA 94402
Section 10.10 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Nevada, without regard to the conflicts of laws principles.
Section 10.11 Consent to Jurisdiction.
Any action, suit or other legal proceeding which is
commenced to resolve any
matter arising under or relating to any provision of this
Agreement shall be
commenced only in a state or federal court of competent jurisdiction
the State
of California, and the parties hereto each consents to the jurisdiction of
such
a court.
Section 10.12 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall
be deemed to be an original, but all of which together shall constitute
one and
the same agreement.
Section 10.13 Certain Definitions.
As used herein:
(a) "Affiliate" shall have the meanings ascribed to such term in
Rule 12b-2 of
the Exchange Act;
(b) "Business Day" shall mean any day other than a Saturday, Sunday or a
day on
which federally chartered financial institutions are not open
for business in
the City of San Mateo, California;
(c) "Confidential Information" shall mean the existence
and contents of this
Agreement and the Schedules and Exhibits hereto, and all proprietary
technical,
economic, environmental, operational, financial and/or business
information or
material of one party which, prior to or following the Closing Date,
has been
disclosed by LUCAS, on the one hand, or PANORAMA, on the other hand, in written,
oral (including by recording), electronic, or visual form to, or
otherwise has
come into the possession of, the other;
(d) "Contract" shall mean any oral, written or implied contracts,
agreements,
licenses, instruments, indentures leases, powers of attorney, guaranties, surety
arrangements or other commitments of any kind;
30
(e) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended,
and the rules and regulations promulgated thereunder;
(f) "GAAP" shall mean generally accepted accounting
principles in the United
States as in effect on the date or for the period with respect
to which such
principles are applied;
(g) "Governmental Authority" shall mean any nation or
government, any state,
municipality or other political subdivision thereof
and any entity, body,
agency, commission or court, whether domestic,
foreign or multinational,
exercising executive, legislative, judicial,
regulatory or administrative
functions of or pertaining to government and any executive official thereof;
(h) "Knowledge" shall mean (i) with respect to an individual,
knowledge of a
particular fact or other matter, if such individual is
aware of such fact or
other matter, and (ii) with respect to a Person
that is not an individual,
knowledge of a particular fact or other matter if any individual who is serving,
or who has at any time served, as a director, officer, partner,
executor, or
trustee of such Person (or in any similar capacity) has,
or at any time had,
knowledge of such fact or other matter;
(i) "Lien" shall mean any security or other property interest or right,
claim,
lien, pledge, option, charge, security interest, contingent or conditional sale,
or proxy, pre-emptive rights, first refusal rights,
participation rights, or
other title claim or retention agreement, interest or other
right or claim of
third parties, whether perfected or not perfected,
voluntarily incurred or
arising by operation of law, and including any
agreement (other than this
Agreement) to grant or submit to any of the foregoing in the future;
(j) "Material Adverse Effect" shall mean any adverse
effect on the business,
condition (financial or otherwise) or results of operation of
the applicable
entity;
(k) "Material Contract" shall mean any Contract,
other than equipment and
furniture leases entered into in the
ordinary course of business, the
liabilities or commitments associated therewith exceed, in the
case of LUCAS,
$1,000 individually or $5,000 in the aggregate;
(l) "Person" shall mean any individual, corporation, partnership,
association,
trust or other entity or organization, including a
governmental or political
subdivision or any agency or institution thereof;
(m) "SEC" shall mean the Securities and Exchange Commission;
(n) "Securities Act" shall mean the Securities Act of 1933, as amended,
and the
rules and regulations promulgated thereunder; and
(o) "Taxes" shall mean all taxes (whether U.S. federal, state, local or
Israeli
or other non-U.S.) based upon or measured
by income and any other tax
whatsoever, including, without limitation, gross
receipts, profits, sales,
levies, imposts, deductions, charges, rates, duties,
use, occupation, value
added, ad valorem, transfer, franchise,
withholding, payroll and social
security, employment, excise, stamp duty or property taxes,
together with any
interest, penalties, charges or fees imposed with respect thereto.
31
IN WITNESS WHEREOF, each of the parties have caused this Agreement to be
signed
by their respective officers hereunto duly authorized, all as of the date
first
written above.
PANORAMA INVESTMENTS, CORP.
By: /s/ Steven Bekropoulos
---------------------------------------
Name: Steven Bekropoulos
Title: Authorized Signatory, CFO, Director
LUCAS ENERGY, INC.
By: /s/ James J. Cerna, Jr.
---------------------------------------
Name: James J. Cerna, Jr.
Title: Authorized Signatory, CEO, Director
By: /s/ William Sawyer
---------------------------------------
Name: William Sawyer
Title: COO
By: /s/ Eric Wold
---------------------------------------
Name: Eric Wold
Title: Director
By: /s/ Rick Schmid
---------------------------------------
Name: Rick Schmid
Title: Director
32
LUCAS SHAREHOLDERS' COUNTERPART SIGNATURE PAGE
[Signature page
must be executed by each Lucas Shareholder]
(Lucas Shareholders must also complete Schedule II)
--------------------------------
(Print Name of Investor)
By:
--------------------------------
Name:
Title:
--------------------------------
Address
--------------------------------
(City, State and Zip Code/Postal Code)
--------------------------------
Country
--------------------------------
33
EXHIBIT B
DEAN HELLER
Secretary of State
202 North Carson St.
Carson City, NV 89701-4299
(775) 684-5708 Website: secretaryofstate.biz
Certificate of Amendment
(PURSUANT TO NRS 78.385 and 78.390)
Certificate of Amendment to Articles of Incorporation
For Nevada Profit Corporations
(Pursuant to NRS 78.385 and 78.390 - After Issuance of Stock)
1. Name of Corporation: Panorama Investments, Corp.
2. The articles have been amended as follows (provide
article numbers, if
available):
Article 1 - is amended to read:
"Name of corporation: Lucas Energy, Inc."
Article Four - is amended to read:
Article four: Forward Split of Common stock: By
Resolution of the Board of
Directors and majority vote of the Shareholders, the Company shall forward-split
its common shares, on a 2.4 to 1 share ratio, with each
currently issued and
outstanding share of the Company's common stock being replaced by 2.4 new shares
of post-split common stock. Par value shall remain
unchanged and fractional
shares shall be replaced by a single new share. Said
forward split shall be
effective for all shareholders of record as of the date set forth
herein, or
upon approval by the NASDAQ Stock Market in accordance with NASDAQ requirements.
All other rights and privileges of the Common Stock shall
remain unchanged.
Preferred Stock shall not be affected by this Amendment.
3. The vote by which the stockholders
holding shares in the corporation
entitling them to exercise at least a majority of the voting
power, or such
greater proportion of the voting power as may be required in the case of a
vote
by classes or series, or as may be required by the provisions of the articles of
incorporation have voted in favor of the amendment is: majority approval +51%.
4. Effective date of filing (optional): 6/9/06.
4. Officer Signature (Required): /s/ James J. Cerna, Jr., CEO
* If any proposed amendment would alter or change any preference or any relative
or other right given to any class or series of outstanding
shares, then the
amendment must be approved by the vote, in addition to the
affirmative vote
otherwise required, of the holders of shares
representing a majority of the
voting power of each class or series affected by the amendment
regardless of
limitations or restrictions on the voting power thereof.
IMPORTANT: Failure to include any of the above information and remit the
proper
fees may cause this filing to be rejected.