Attached files
Exhibit
2.1
AGREEMENT
AND PLAN OF MERGER AND REORGANIZATION
This
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is entered into as
of February 24, 2010 by and among Across America Real Estate Exchange, Inc., a
Colorado corporation (“AAEX”), AAEX Acquisition
Corp., a Colorado corporation and wholly-owned subsidiary of AAEX (“Merger Sub”), and Accredited
Members, Inc., a Colorado corporation (“AMI”). Capitalized
terms used herein (including in the immediately preceding sentence) and not
otherwise defined herein shall have the meanings set forth in Section 9.1
hereof.
WHEREAS,
AAEX and AMI entered into a Proposed Summary of Terms effective December 10,
2009 setting out the terms by which AAEX would acquire all of the issued shares
of AMI by way of a merger of Merger Sub with and into AMI;
WHEREAS,
the Board of Directors of AMI (“AMI Board”) has unanimously
(a) determined that it is in the best interests of AMI and its stockholders, and
declared it advisable, to enter into this Agreement with AAEX and Merger Sub,
(b) approved the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, including the Merger, and
(c) resolved, subject to the terms and conditions set forth in this Agreement,
to recommend adoption and approval of this Agreement by the stockholders of
AMI;
WHEREAS,
the Board of Directors of AAEX (the “AAEX Board”) has unanimously
(a) determined that the Merger is consistent with and in furtherance of the
long-term business strategy of AAEX and fair to, and in the best interests of,
AAEX and its stockholders and has approved and adopted this Agreement, the
Merger and the other transactions contemplated by this Agreement and (b)
resolved, subject to the terms and conditions set forth in this Agreement, to
recommend that the stockholders of AAEX vote to approve the issuance of shares
of common stock, par value $0.001 per share, of AAEX (“AAEX Common Stock”) to the
stockholders of AMI pursuant to the terms of the Merger (the “Share Issuance”);
WHEREAS,
for federal income tax purposes, the Merger is intended to qualify as a
reorganization under the provisions of Section 368(a) of the United States
Internal Revenue Code of 1986, as amended (the “Code”);
WHEREAS,
the parties desire to make certain representations, warranties, covenants and
agreements in connection with the Merger and the transactions contemplated by
this Agreement and also to prescribe certain conditions to the
Merger.
NOW,
THEREFORE, in consideration of the premises, and of the representations,
warranties, covenants and agreements contained herein, the parties agree as
follows:
ARTICLE
1
THE
MERGER
1.1 The Merger. On the
terms and subject to the conditions set forth in this Agreement, and in
accordance with the Colorado Business Corporation Act (the “CBCA”), at the Effective Time,
(a) Merger Sub will merge with and into AMI (the “Merger”), and (b) the separate
corporate existence of Merger Sub will cease and AMI will continue its corporate
existence under the CBCA as the surviving corporation in the Merger (the “Surviving
Corporation”).
1.2 Closing. Upon the
terms and subject to the conditions set forth herein, the closing of the Merger
(the “Closing”) will
take place at 9:00 a.m., Mountain time, on February 24, 2010. The Closing shall
be held at the offices of Burns Figa & Will, PC, 6400 S. Fiddlers Green
Circle, Suite 1000, Greenwood Village, CO, 80111, unless another place is agreed
to in writing by the parties hereto. The actual date of the Closing is
hereinafter referred to as the “Closing Date”.
1.3 Effective
Time. Subject to the provisions of this Agreement, at the
Closing, AMI, AAEX and Merger Sub will cause Articles of Merger (the “Articles of Merger”) to be
executed, acknowledged and filed with the Secretary of State of the State of
Colorado in accordance with the relevant provisions of the CBCA. The Merger will
become effective at such time as the Articles of Merger has been duly filed with
the Secretary of State of the State of Colorado or at such later date or time as
may be agreed by AMI and AAEX in writing and specified in the Articles of Merger
in accordance with the CBCA (the effective time of the Merger being referred to
herein as the “Effective
Time”).
1.4 Effects of the
Merger. The Merger shall have the effects set forth herein and
in the applicable provisions of the CBCA. Without limiting the generality of the
foregoing, and subject thereto, from and after the Effective Time, all property,
rights, privileges, immunities, powers, franchises, licenses and authority of
AMI and Merger Sub shall vest in the Surviving Corporation, and all debts,
liabilities, obligations, restrictions and duties of each of AMI and Merger Sub
shall become the debts, liabilities, obligations, restrictions and duties of the
Surviving Corporation.
1.5 Articles of Incorporation;
By-laws. At the Effective Time, (a) the articles of
incorporation of AMI as in effect immediately prior to the Effective Time shall
be the articles of incorporation of the Surviving Corporation until thereafter
amended in accordance with the terms thereof or as provided by applicable Law;
and (b) the by-laws of AMI as in effect immediately prior to the Effective Time
shall be the by-laws of the Surviving Corporation until thereafter amended in
accordance with the terms thereof, the certificate of incorporation of the
Surviving Corporation or as provided by applicable Law.
1.6 AMI Directors and
Officers. The directors of AMI immediately prior to the
Effective Time shall, from and after the Effective Time, be the directors of the
Surviving Corporation until their successors have been duly elected or appointed
and qualified or until their earlier death, resignation or removal in accordance
with the articles of incorporation and by-laws of the Surviving
Corporation. The officers of AMI immediately prior to the Effective
Time shall, from and after the Effective Time, be the officers of the Surviving
Corporation until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the certificate of incorporation and by-laws of the Surviving
Corporation.
2
1.7 AAEX Officers and
Directors. As promptly as possible after the Effective Time,
and consistent with all applicable regulatory requirements, AAEX shall take all such
action as may be necessary (i) to cause the number of directors comprising the
AAEX Board as of the Effective Time to be increased to two, with Brian L. Klemsz
continuing to serve as a director until the next annual election of directors,
(ii) to cause JW Roth to be appointed to the AAEX Board as of the
Effective Time, to serve until the next annual election of directors of AAEX;
and (iii) within 15 days after the Effective Time, provided AAEX has complied
with any regulatory filings and/or mailings related to a change in the majority
of directors, to cause the Board to be increased to four members, with the two
additional persons appointed to the AAEX Board to be David Lavigne and Delray
Wannemacher to serve until the next annual election of directors of AAEX.
Messrs. Roth, Lavigne and Wannemacher are referred to collectively as the “AMI Designated
Directors.”
ARTICLE
2
EFFECT
OF THE MERGER ON CAPITAL STOCK
2.1 Effect of the Merger on Capital
Stock. At the Effective Time, as a result of the Merger and without any
action on the part of AAEX, Merger Sub or AMI or the holder of any capital stock
of AAEX, Merger Sub or AMI:
|
(a)
|
Cancellation of Certain AMI
Common Stock. Each share of AMI Common Stock (each, a
“Share” and
collectively, the “Shares”) that is owned
by AAEX, Merger Sub or AMI (as treasury stock or otherwise) or any of
their respective direct or indirect wholly-owned subsidiaries (if any)
will automatically be cancelled and retired and will cease to exist, and
no consideration will be delivered in exchange
therefor.
|
|
(b)
|
Conversion of AMI Common
Stock. Each Share issued and outstanding immediately
prior to the Effective Time (other than Shares to be cancelled and retired
in accordance with Section 2.1(a), will be converted into the right to
receive the number of shares of AAEX Common Stock (the “Merger Consideration”)
equal to the Exchange Ratio. The Exchange Ratio is
2.603.
|
|
(c)
|
Cancellation of Shares.
At the Effective Time, all Shares will no longer be outstanding and
all Shares will be cancelled and retired and will cease to exist, and,
subject to Section 2.3, each holder of a certificate formerly representing
any such Shares (each, a “Certificate”) will cease
to have any rights with respect thereto, except the right to receive the
Merger Consideration in accordance with Section 2.2
hereof.
|
3
|
(d)
|
Conversion of Merger Sub
Capital Stock. Each share of common stock, par value $0.001 per
share, of Merger Sub issued and outstanding immediately prior to the
Effective Time shall be converted into and become one newly issued, fully
paid and non-assessable share of common stock of the Surviving
Corporation.
|
2.2 Payment.
|
(a)
|
Prior
to the Effective Time, AAEX shall appoint an exchange agent reasonably
acceptable to AMI (the “Exchange Agent”) to act
as the agent for the purpose of delivering the Merger Consideration for:
(i) the Certificates, or (ii) book-entry shares which immediately prior to
the Effective Time represented the Shares (the “Book-Entry Shares”). On
and after the Effective Time, AAEX shall deposit, or cause the Surviving
Corporation to deposit, with the Exchange Agent, certificates of AAEX
Common Stock representing the aggregate Merger Consideration that is
issuable in respect of all of the Shares represented by the Certificates
and the Book-Entry Shares (the “Exchange Fund”) in
amounts and at the times necessary for such issuance. If for any reason
(including losses) the Exchange Fund is inadequate to pay the amounts to
which holders of Shares shall be entitled under Section 3.1(b), AAEX shall
take all steps necessary to enable or cause the Surviving Corporation
promptly to deposit in trust additional certificates with the Exchange
Agent sufficient to make all issuances required under this Agreement, and
AAEX and the Surviving Corporation shall in any event be liable for the
payment thereof. The Exchange Fund shall not be used for any other
purpose. The Surviving Corporation shall pay all charges and expenses,
including those of the Exchange Agent, in connection with the delivery to
former AMI Stockholders of the Merger Consideration. Promptly
after the Effective Time, AAEX shall cause the Exchange Agent to send to
each record holder of Shares at the Effective Time AAEX Common Stock
representing the Merger Consideration payable to each such holder of
Shares.
|
|
(b)
|
Each
holder of Shares that have been converted into the right to receive the
Merger Consideration shall be entitled to receive the Merger Consideration
in respect of AMI Common Stock represented by a Certificate or Book-Entry
Share. At the Effective Time pursuant to the provisions of this
Article 2, each Certificate or Book-Entry Share shall immediately be
deemed to have been cancelled without further action by any
party.
|
|
(c)
|
No
fractional shares of AAEX Common Stock shall be issued. If the
aggregate number of shares of AAEX Common Stock that a holder of AMI
Common Stock is entitled to receive pursuant to Section 3.1 is (i) a
fractional share representing 0.5 or more of a share, the number of shares
of AAEX Common Stock such holder is entitled to receive will be rounded up
to the next whole number or (ii) a fractional share representing less than
0.5 of a share, the number of shares of AAEX Common Stock such holder is
entitled to receive will be rounded down to the next whole number and no
additional compensation will be paid to in respect of such fractional
share.
|
4
|
(d)
|
The
Exchange Ratio shall be adjusted to reflect appropriately the effect of
any stock split, reverse stock split, stock dividend (including any
dividend or distribution of securities convertible into AAEX Common Stock
or AMI Common Stock), extraordinary cash dividends, reorganization,
recapitalization, reclassification, combination, exchange of shares or
other like change with respect to AAEX Common Stock or AMI Common Stock
occurring on or after the date hereof and prior to the Effective
Time.
|
|
(e)
|
All
Merger Consideration issued upon the conversion of Shares in accordance
with the terms hereof shall be deemed to have been issued in full
satisfaction of all rights pertaining to the Shares formerly represented
by a Certificate or Book-Entry Shares, and from and after the Effective
Time, there shall be no further registration of transfers of Shares on the
stock transfer books of the Surviving
Corporation.
|
|
(f)
|
Any
portion of the Exchange Fund that remains unclaimed by the holders of
Shares one year after the Effective Time shall be returned to AAEX, upon
demand, and any former holder of Shares shall thereafter look only to AAEX
for issuance of the Merger Consideration. Notwithstanding the foregoing,
AAEX shall not be liable to any holder of Shares for any amounts paid to a
public official pursuant to applicable abandoned property, escheat or
similar Laws. Any amounts remaining unclaimed by holders of
Shares two (2) years after the Effective Time (or such earlier date,
immediately prior to such time when the amounts would otherwise escheat to
or become property of any Governmental Entity) shall become, to the extent
permitted by applicable Law, the property of AAEX free and clear of any
claims or interest of any Person previously entitled
thereto.
|
2.3 No Appraisal
Rights. No appraisal rights shall be available to holders of
shares of AMI Common Stock in connection with the Merger unless required by
Section 7-113-102 of the CBCA.
2.4 Withholding Rights. Each of
the Exchange Agent, AAEX, Merger Sub and the Surviving Corporation shall be
entitled to deduct and withhold from the consideration otherwise payable to any
Person pursuant to this Article 2 such amounts as may be required to be deducted
and withheld with respect to the making of such payment under any provision of
any applicable Tax Law. To the extent that amounts are so deducted and withheld
by the Exchange Agent, AAEX, Merger Sub or the Surviving Corporation, as the
case may be, such amounts shall be treated for all purposes of this Agreement as
having been paid to the Person in respect of which the Exchange Agent, AAEX,
Merger Sub or the Surviving Corporation, as the case may be, made such deduction
and withholding.
5
2.5 AMI Options. All
options to acquire shares of AMI Common Stock (collectively, “AMI Options”) outstanding, if
any, whether or not exercisable and whether or not vested, at the Effective
Time, shall remain outstanding following the Effective Time. At the
Effective Time, the AMI Options shall, by virtue of the Merger and without any
further action on the part of AMI or the holder thereof, be substituted or
assumed by AAEX in such manner that Section 424(a) of the Code or the treatment
under Treasury Regulation 1.409A - 1(b)(v)(D) so provides or permits such
treatment. From and after the Effective Time, all references to AMI
in all agreements evidencing the AMI Options, or any plans pursuant to which the
AMI Options were issued “AMI
Plans”), shall be deemed to refer to AAEX, which shall have assumed the
AMI Options and AMI Plans as of the Effective Time by virtue of this Agreement
and without any further action. Each AMI Option assumed by AAEX
(each, a “Substitute
Option”) shall be exercisable upon the same terms and conditions as under
the applicable agreement evidencing the AMI Options and AMI Plans, to the extent
applicable, except that (A) each such Substitute Option shall be exercisable
for, and represent the right to acquire, that whole number of shares of AAEX
Common Stock (rounded down to the nearest whole share) equal to the number of
shares of AMI Common Stock subject to such AMI Option multiplied by the Exchange
Ratio; and (B) the exercise price per share of AAEX Common Stock shall be an
amount equal to the exercise price per share of AMI Common Stock subject to such
AMI Option in effect immediately prior to the Effective Time divided by the
Exchange Ratio (the exercise price per share, as so determined, being rounded
upward to the nearest full cent). Such Substitute Option shall
otherwise be subject to the same terms and conditions as such AMI
Option. As soon as practicable after the Effective Time, AAEX shall
deliver, or cause to be delivered, to each holder of a Substitute Option an
appropriate notice setting forth such holder’s rights pursuant thereto and such
Substitute Option shall continue in effect on the same terms and conditions
(including any antidilution provisions, and subject to the adjustments required
by this Section 2.5 after giving effect to the Merger). AAEX shall
comply with the terms of all such Substitute Options. AAEX shall take
all corporate action necessary to reserve for issuance a sufficient number of
shares of AAEX Common Stock for delivery upon exercise of Substitute Options
pursuant to the terms set forth in this Section 2.5. As soon as
practicable after the Effective Time, the shares of AAEX Common Stock subject to
Substitute Options will be covered by an effective registration statement on
Form S-8 (but only to the extent such Substitute Options so qualify), or any
successor form, or another appropriate form, and AAEX shall use its reasonable
efforts to maintain the effectiveness of such registration statements for so
long as Substitute Options remain outstanding. On or
after the date of this Agreement and prior to the Effective Time, each of AAEX
and AMI shall take all necessary action such that, with respect to each member
of the AMI Board and each employee of AMI that is subject to Section 16 of the
Exchange Act, the acquisition by such person of AAEX Common Stock or Substitute
Options in the Merger and the disposition by any such person of AAEX Common
Stock, AMI Common Stock or AMI Options pursuant to the transactions contemplated
by this Agreement shall be exempt from the short-swing profit liability rules of
Section 16(b) of the Exchange Act pursuant to Rule 16b-3 promulgated
thereunder.
2.6 Warrants and Other
Rights. AAEX and AMI shall cause outstanding warrants or other
rights to acquire shares of AMI Common Stock to be exchanged at the Effective
Time for warrants or other rights to acquire shares of AAEX Common
Stock. Each AMI Right so exchanged (each, a “Substitute Right”) shall be
exercisable upon the same terms and conditions as under the applicable agreement
evidencing the AMI Right, except that (A) each such Substitute Right shall be
exercisable for, and represent the right to acquire, that whole number of shares
of AAEX Common Stock (rounded to the nearest whole share) equal to the number of
shares of AMI Common Stock subject to such AMI Right multiplied by the Exchange
Ratio; and (B) the exercise price per share of AAEX Common Stock shall be an
amount equal to the exercise price per share of AMI Common Stock subject to such
AMI Right in effect immediately prior to the Effective Time divided by the
Exchange Ratio (the exercise price per share, as so determined, being rounded
downward to the nearest full cent). AAEX shall take all
corporate action necessary to reserve for issuance a sufficient number of shares
of AAEX Common Stock for delivery upon exercise of Substitute Rights pursuant to
the terms set forth in this Section 2.6.
6
ARTICLE
3
AMI
REPRESENTATIONS AND WARRANTIES
3.1 AMI Representations and
Warranties. Except as set forth in the correspondingly
numbered section of the disclosure letter delivered to AAEX by AMI on the date
of this Agreement, AMI represents and warrants to AAEX as follows:
|
(a)
|
AMI
is a corporation duly organized and validly existing under the laws of the
State of Colorado and is in good
standing;
|
|
(b)
|
AMI
has no subsidiaries;
|
|
(c)
|
as
of the date hereof:
|
|
(i)
|
the
authorized capital of AMI consists of 50,000,000 shares of AMI common
stock, $0.0001 par value per share, and 10,000,000 shares of preferred
stock, par value $0.0001 per share. As of February 23, 2010,
9,817,138 shares of AMI common stock and no preferred shares in the
capital of AMI were issued and outstanding;
and
|
|
(ii)
|
AMI
has options, warrants or other convertible securities issued or
outstanding as follows: (i) 690,000 options; (ii) 400,000 shares
underlying a single warrant; and (iii) 791,666 shares underlying
convertible notes ($237,500 principal amount converted at
$0.30/share).
|
|
(b)
|
immediately
prior to the Effective Time, AMI will have 9,817,138 common shares issued
and outstanding. Options to acquire an additional 690,000 AMI
shares will be exchanged at the Effective Time for options to acquire AAEX
Common Stock pursuant to Section 6. Warrants to acquire an additional
400,000 AMI shares will be exchanged at the Effective Time for warrants to
acquire AAEX Common Stock. Convertible Notes to acquire an additional
791,666 AMI shares will be amended at the Effective Time such that the
Convertible Notes may be converted to acquire AAEX Common
Stock.
|
|
(c)
|
the
AMI Board, by resolutions duly adopted at a meeting duly called and held
and not subsequently rescinded or modified in any way, has duly (i)
determined that this Agreement and the Merger are fair to and in the best
interests of the Company and its stockholders, (ii) approved this
Agreement and the Merger and declared their advisability, (iii)
recommended that the stockholders of the Company approve and adopt this
Agreement and approve the Merger; and (iv) directed that this
Agreement and the transactions contemplated hereby be submitted for
consideration and approval by the Company’s stockholders via consent
minutes in lieu of a meeting, such minutes to be executed by a majority of
the votes entitled to be cast at a meeting held for the purpose of
approving the Agreement and the
Merger.
|
7
|
(d)
|
AMI
has all necessary corporate power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby; the execution and delivery of this
Agreement by AMI and the consummation by AMI of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action, and no other corporate proceedings on the part of AMI
are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby (other than, with respect to the Merger,
the approval and adoption of this Agreement by written consent in lieu of
a meeting by the holders of a majority of the then-outstanding shares of
AMI Common Stock and the filing and recordation of appropriate merger
documents as required by the CBCA); this Agreement has been duly and
validly executed and delivered by AMI and, assuming the due authorization,
execution and delivery by AAEX and Merger Sub, constitutes a legal, valid
and binding obligation of AMI, enforceable against AMI in accordance with
its terms, subject to the effect of any applicable bankruptcy, insolvency
(including, without limitation, all Laws relating to fraudulent
transfers), reorganization, moratorium or similar Laws affecting
creditors’ rights generally and subject to the effect of general
principles of equity (regardless of whether considered in a proceeding at
Law or in equity. To the knowledge of AMI, no other state takeover statute
is applicable to the Merger or the other transactions contemplated by this
Agreement;
|
|
(e)
|
neither
the execution and delivery of this Agreement nor the consummation of the
Merger will conflict with, result in a breach of or accelerate the
performance required by any agreement to which AMI is a party, or any Law,
rules or regulations to which AMI or its properties is
subject;
|
|
(f)
|
there
are no undisclosed actions, suits or proceedings, pending or, to the
knowledge of AMI, threatened against AMI at Law or in equity, or by any
federal, provincial, state, municipal or other governmental department,
commission, board, bureau or agency, domestic or foreign (“Governmental Authority”), and AMI is
not aware of any existing grounds on which any action, suit or proceeding
might be commenced with any reasonable likelihood of
success;
|
|
(g)
|
the
audited financial statements of AMI as at and for the 12 months ended
December 31, 2009 have been prepared in accordance with generally accepted
accounting principles, are true, correct and complete in all material
respects and present fairly the financial condition of AMI as at the end
of such period;
|
8
|
(h)
|
AMI
is not subject to any cease trade or other order of any applicable stock
exchange or securities regulatory authority and, to the knowledge of AMI,
no investigation or other proceedings involving AMI are currently in
progress or pending before any applicable stock exchange or securities
regulatory authority;
|
|
(i)
|
AMI
does not have any material liability or obligation, whether accrued,
absolute, contingent or otherwise, not reflected in its Financial
Statements;
|
|
(j)
|
there
is no bankruptcy, liquidation, winding-up or other similar proceeding
pending or in progress or, to the knowledge of AMI, threatened against AMI
before any court, regulatory or administrative agency or
tribunal;
|
|
(k)
|
AMI
is not, and as at closing, will not be, in default or in breach of any
material contract, agreement or like
commitment;
|
|
(l)
|
AMI
have good and marketable title to all of the material property or assets
listed on the Financial Statements, free of all mortgages, liens, charges,
pledges, security interests, encumbrances, claims or demands whatsoever,
other than those described in the Financial Statements, and no other
property rights are necessary for the conduct of the business of AMI as
currently conducted or contemplated to be conducted, AMI knows of no claim
or basis for any claim that might or could adversely affect the right
thereof to use, transfer or otherwise exploit such property
rights;
|
|
(m)
|
any
and all of the agreements and other documents and instruments pursuant to
which AMI hold its property and assets (including any interest in, or
right to earn an interest in, any property), directly or indirectly, are
valid and subsisting agreements, documents or instruments in full force
and effect, enforceable in accordance with the terms thereof, and none of
AMI or its subsidiaries is in default of any of the material provisions of
any such agreements, documents or instruments nor has any such default
been alleged, and such properties and assets are in good standing under
the applicable statutes and regulations of the jurisdictions in which they
are situated, and there has been no material default under any lease,
licence or claim pursuant to which AMI or its subsidiaries derive an
interest in such property or assets and all taxes required to be paid with
respect to such properties and assets to the date hereof have been
paid. The interests of, or rights of AMI to earn an interest
in, any property are not subject to any right of first refusal, purchase,
acquisition, back-in or other similar rights which are not disclosed in
the AMI Documents;
|
|
(n)
|
AMI
has conducted and is conducting its business in compliance in all material
respects with all applicable environmental protection legislation,
regulations or by-laws or other similar Laws, by-laws, rules and
regulations or other lawful requirements of each jurisdiction in which its
business is carried.
|
9
|
|
(o)
|
AMI
owns or possesses sufficient trademarks, trade names, patent rights,
copyrights, domain names, licenses, approvals, trade secrets and other
similar rights reasonably necessary to conduct its business. To AMI’s
knowledge, none of the technology employed by the Company has been
obtained or is being used by the Company in violation of any contractual
obligation binding on the Company or any of its officers, directors or
employees or otherwise in violation of the rights of any
persons.
|
ARTICLE
4
AAEX
AND MERGER SUB REPRESENTATIONS AND WARRANTIES
4.1 AAEX Representations and
Warranties. Except as set forth in the correspondingly
numbered section of the disclosure letter delivered to AMI by AAEX on the date
of this Agreement, AAEX and Merger Sub each represent and warrant to AMI as
follows subject to the disclosure schedule delivered to AMI
herewith:
|
(a)
|
Each
of AAEX and Merger Sub is a corporation duly organized and validly
existing under the laws of the State of Colorado
and:
|
|
(i)
|
AAEX
is not in material default of its continuous disclosure obligations under
any applicable securities laws;
|
|
(ii)
|
Each
of AAEX and Merger Sub it is in good standing;
and
|
|
(iii)
|
The
common shares of AAEX are quoted on the NASD Over the Counter Bulletin
Board (the “OTCBB”);
|
|
(b)
|
AAEX
has no subsidiaries, except for Merger
Sub;
|
|
(c)
|
as
of the date hereof:
|
|
(i)
|
the
authorized capital of AAEX consists of 50,000,000 shares of common stock,
$0.001 par value per share, and 1,000,000 shares of preferred stock, $0.10
per value per share. As of February 23, 2010, 3,100,000 shares
of AAEX common stock and no shares of AAEX preferred stock were issued and
outstanding;
|
|
(ii)
|
AAEX
has 200,000 warrants
issued and outstanding to Safe Harbor I, LLC,
exercisable at a price of $0.01 per share subject to adjustment, for a
period of five years from the date of issuance. Otherwise, AAEX has
no options, warrants or other convertible securities issued or
outstanding; and
|
|
(iii)
|
the
authorized capital of Merger Sub consists of 50,000,000 shares of common
stock and 1,000,000 shares of preferred stock. As of the date
of this Agreement, 100 shares of common stock in the capital of Merger Sub
were issued and outstanding; and
|
10
|
(iv)
|
Merger
Sub has no options, warrants or other convertible securities issued or
outstanding;
|
|
(d)
|
the
AAEX common shares issuable pursuant to the Merger will, upon their
issuance, be validly issued and outstanding, fully paid and non-assessable
common shares of AAEX and will form part of a class of shares that is
quoted on the OTCBB at the Effective
Time.;
|
|
(e)
|
the
AAEX Board, by resolutions duly adopted at a meeting duly called and held
and not subsequently rescinded or modified in any way, has duly (i)
determined that this Agreement, the Merger and the Share Issuance are fair
to and in the best interests of AAEX and its stockholders, and (ii)
approved this Agreement, the Merger and the Share Issuance. No approval of
the AAEX stockholders is required for the Share
Issuance.
|
|
(f)
|
Each
of AAEX and Merger Sub has all necessary corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby; the execution and
delivery of this Agreement by AAEX and Merger Sub and the consummation by
AAEX and Merger Sub of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action, and no other
corporate proceedings on the part of AAEX or Merger Sub are necessary to
authorize this Agreement or to consummate the transactions contemplated
hereby (other than with respect to the Merger, the filing and recordation
of appropriate merger documents as required by the CBCA); this Agreement
has been duly and validly executed and delivered by AAEX and Merger Sub
and, assuming due authorization, execution and delivery by AMI,
constitutes a legal, valid and binding obligation of each of AAEX and
Merger Sub, enforceable against each of AAEX and Merger Sub in accordance
with its terms, subject to the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
creditors’ rights generally and subject to the effect of general
principles of equity (regardless of whether considered in a proceeding at
Law or in equity);
|
|
(g)
|
neither
the execution and delivery of this Agreement nor the consummation of the
Merger will conflict with, result in a breach of or accelerate the
performance required by any agreement to which AAEX is a party, or any
Law, rules or regulations to which AAEX or its properties is
subject;
|
|
(h)
|
all
consents, approvals, permits, authorizations or filings as may be required
for the execution and delivery of this Agreement and the completion of the
transactions contemplated hereby have been or will, prior to Closing, be
made or obtained, as applicable;
|
11
|
(i)
|
AAEX
has conducted and is conducting its business in material compliance with
all applicable laws and regulations of each jurisdiction in which it
carries on business and has not received a notice of non-compliance, nor
knows of, nor has reasonable grounds to know of, any facts that could give
rise to a notice of non-compliance with any such laws, regulations or
permits;
|
|
(j)
|
there
are no undisclosed actions, suits or proceedings, pending or, to the
knowledge of AAEX, threatened against AAEX, at Law or in equity, or by any
federal, provincial, state, municipal or other governmental department,
commission, board, bureau or agency, domestic or foreign (“Governmental Authority”), and AAEX is
not aware of any existing grounds on which any action, suit or proceeding
might be commenced with any reasonable likelihood of
success;
|
|
(k)
|
the
audited financial statements of AAEX for the year ended December 31, 2009
have been prepared in accordance with generally accepted accounting
principles (except as required to comply with SEC reporting obligations),
are true, correct and complete in all material respects and present fairly
the financial condition of AAEX as at the end of such
periods;
|
|
(l)
|
AAEX
is not subject to any cease trade or other order of any applicable stock
exchange or securities regulatory authority and, to the knowledge of AAEX,
no investigation or other proceedings involving AAEX which may operate to
prevent or restrict trading of any securities of AAEX are currently in
progress or pending before any applicable stock exchange or securities
regulatory authority;
|
|
(m)
|
AAEX
does not have any material liability or obligation, whether accrued,
absolute, contingent or otherwise, not reflected in its latest
publicly-disclosed financial
statements;
|
|
(n)
|
there
is no bankruptcy, liquidation, winding-up or other similar proceeding
pending or in progress or, to the knowledge of AAEX, threatened against
AAEX before any court, regulatory or administrative agency or
tribunal;
|
|
(o)
|
AAEX
has filed with the securities regulatory authorities, stock exchanges and
all applicable self-regulatory authorities a true and complete copy of all
forms, reports, schedules, statements, certifications, material change
reports and other documents required to be filed by it (such forms,
reports, schedules, statements, certifications and other documents,
including any schedules included therein, are referred to in this
subsection as the “AAEX
Documents”). The AAEX Documents, at the time filed or,
if amended, as of the date of such amendment: (i) did not contain any
misrepresentation (as defined or interpreted by securities regulatory
authorities) and did not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
made, not misleading; and (ii) complied in all material respects with the
requirements of applicable securities legislation and the rules, policies
and instruments of all securities regulatory authorities having
jurisdiction over AAEX, except where such non-compliance has not had and
would not reasonably be expected to have a material adverse effect on
AAEX. AAEX has not filed any confidential material change or
other report or other document with any securities regulatory authorities
or stock exchange or other self-regulatory authority which at the date
hereof remains confidential;
|
12
|
(p)
|
AAEX
is not, and as at Closing, will not be, in default or in breach of any
material contract, agreement or like
commitment;
|
|
(q)
|
AAEX
has good and marketable title to all of the material property or assets
thereof to the extent described in the AAEX Documents, free of all
mortgages, liens, charges, pledges, security interests, encumbrances,
claims or demands whatsoever, other than those described in the AAEX
Documents, and no other property rights are necessary for the conduct of
the business of AAEX as currently conducted or contemplated to be
conducted, AAEX knows of no claim or basis for any claim that might or
could adversely affect the right thereof to use, transfer or otherwise
exploit such property rights, and except as disclosed in the AAEX
Documents;
|
|
(r)
|
any
and all of the agreements and other documents and instruments pursuant to
which AAEX and its subsidiaries hold their property and assets (including
any interest in, or right to earn an interest in, any property), directly
or indirectly, are valid and subsisting agreements, documents or
instruments in full force and effect, enforceable in accordance with the
terms thereof, and none of AAEX or its subsidiaries is in default of any
of the material provisions of any such agreements, documents or
instruments nor has any such default been alleged, and such properties and
assets are in good standing under the applicable statutes and regulations
of the jurisdictions in which they are situated, and there has been no
material default under any lease, licence or claim pursuant to which AAEX
or its subsidiaries derive an interest in such property or assets and all
taxes required to be paid with respect to such properties and assets to
the date hereof have been paid. The interests of, or rights of AAEX and
its subsidiaries to earn an interest in, any property are not subject to
any right of first refusal, purchase, acquisition, back-in or other
similar rights which are not disclosed in the AAEX
Documents;
|
|
(s)
|
each
of AAEX and its subsidiaries has conducted and is conducting its business
in compliance in all material respects with all applicable environmental
protection legislation, regulations or by-laws or other similar laws,
by-laws, rules and regulations or other lawful requirements of each
jurisdiction in which its business is
carried;
|
|
(t)
|
no
regulatory authority having jurisdiction has issued any order preventing
or suspending trading of any currently outstanding securities of AAEX;
and
|
|
(u)
|
Merger
Sub has not conducted any business prior to the date hereof and has, and
at the Effective Time will have, no assets liabilities or obligations of
any nature other than those incident to its formation and pursuant to this
Agreement and the Merger.
|
13
ARTICLE
5
ACCESS
TO INFORMATION; COVENANTS
5.1 Access to
Information. Each of AMI and AAEX hereby agree to continue
allowing the other party and its agents and advisors, until the closing of the
Merger, all reasonable access to their (and their subsidiaries’) respective
files, books, records, properties, assets, operations, personnel and offices and
will provide the other party with any and all information reasonably requested
relating to taxes, commitments, contracts, leases, licenses and real, personal
and intangible property and financial condition, results of operations, business
and prospects (including forecasts and projections) and will cause its
accountants, agents and other advisers to cooperate with the other party and its
agents in making all such information available.
5.2 Approvals. AMI and
AAEX covenant and agree to use all reasonable commercial efforts to obtain as
soon as practicable any required regulatory and stockholder
approvals.
5.3 Interim
Covenants. Except as disclosed in the disclosure schedule
attached hereto, each of AMI and AAEX
agrees that from the date hereof until completion of the Merger or termination
of this Agreement it will:
|
(a)
|
operate
its business in the ordinary
course;
|
|
(b)
|
comply
with all requirements which applicable Law may impose on it with respect
to the Merger;
|
|
(c)
|
promptly
advise the other party (i) of any event that would render any
representation or warranty given by it (except any such representation or
warranty which speaks as of a date prior to the occurrence of such event),
if made on or as of the date of such event or the date of the closing of
the Merger, untrue or inaccurate in any material respect, (ii) of any
material adverse change in respect of its business, affairs, operations
and financial condition, and (iii) of any material breach by it of any
covenant or agreement contained
herein;
|
|
(d)
|
use
best efforts to obtain all waivers, consents and approvals from other
parties to loan agreements, leases or other contracts or from such
applicable governmental or regulatory bodies required to be obtained by it
to consummate the transactions contemplated
hereby;
|
|
(e)
|
cause
the current insurance (or re-insurance) policies to not be cancelled or
terminated or any of the coverage thereunder to lapse, unless
simultaneously with such termination, cancellation or lapse, replacement
policies underwritten by insurance and re-insurance companies of
nationally recognized standing providing coverage equal to or grater than
coverage under the cancelled, terminated or lapsed policies for
substantially similar premiums are in full force and
effect;
|
14
|
(f)
|
incur
or commit to incur capital expenditures only in the ordinary course of
business consistent with past practice and with the prior written consent
of the other party;
|
|
(g)
|
not
alter its authorized capital, or issue (other than on exercise of
presently outstanding convertible options or warrants or the conversion of
presently outstanding notes) or reach any agreement or understanding with
any other party to issue any securities of it without the prior written
consent of the other party;
|
|
(h)
|
not
amend its Articles of Incorporation or
Bylaws;
|
|
(i)
|
not
reorganize, amalgamate or merge with any other person, nor acquire or
agree to acquire by amalgamating, merging or consolidating with,
purchasing any of the voting securities or any of the assets of or
otherwise, any business of any corporation, partnership, association or
other business organization or division
thereof;
|
|
(j)
|
not
purchase, sell, transfer, lease or dispose of any assets other than in the
ordinary course of business consistent with past practice, or enter into,
modify or amend any material agreement other than in the ordinary course
of business without the prior written consent of the other
party;
|
|
(k)
|
not
incur or become liable upon any indebtedness in respect of the obligation
of any other person;
|
|
(l)
|
not
mortgage, charge, pledge or encumber or agree to mortgage, charge, pledge
or encumber any of its property;
|
|
(m)
|
not
(i) satisfy or settle any claims or liabilities prior to the same being
due, except such as have been reserved against in its financial
statements, (ii) grant any waiver, exercise any option or relinquish any
contractual rights, or (iii) enter into any interest rate, currency or
commodity swaps, hedges or other similar financial
instruments;
|
|
(n)
|
not
declare a dividend, including a declaration of dividends for the purpose
of effecting a share subdivision, or make any payment or distribution to
stockholders;
|
|
(o)
|
not
establish or amend any collective bargaining, bonus, profit sharing,
compensation, stock option, stock ownership, stock compensation, pension,
retirement, deferred compensation, employment, termination, severance or
other plan, agreement, trust, fund, policy or arrangement for the benefit
of any directors, officers or employees other than in the ordinary course
of business;
|
15
|
(p)
|
not
make any changes to existing accounting or material business practices
except as required by applicable Law or required by generally accepted
accounting principles or make any material tax election inconsistent with
past practice; and
|
|
(q)
|
cooperate
and assist the other party in such other ways to the extent practicable to
implement the Merger on the terms set forth
herein.
|
5.4 AAEX
Board. As promptly as possible after the Effective Time,
and consistent with all applicable regulatory requirements, AAEX shall take all
such action as may be necessary (i) to cause the number of directors comprising
the AAEX Board as of the Effective Time to be increased to two, with Brian L.
Klemsz continuing to serve as a director until all necessary regulatory filings
and satisfaction of any mailing requirements related thereto, (ii) to cause JW
Roth to be appointed to the AAEX Board as of the Effective Time, to serve until
the next annual election of directors of AAEX; and (iii) to cause the remaining
Designated Directors to be appointed to the AAEX Board upon completion of all
necessary regulatory filings and satisfaction of any mailing requirements
related thereto, each of whom will serve until the next annual election of
directors of AAEX.
5.5 AAEX Name
Change. As promptly as possible on or after the Effective
Time, and consistent with all applicable regulatory requirements, AAEX will
effect a name change of AAEX to Accredited Members Holding Corporation or such
similar name as may be approved by the Colorado Secretary of State.
5.6 Further
Assurances. At and after the Effective Time, the officers and
directors of the Surviving Corporation shall be authorized to execute and
deliver, in the name and on behalf of AMI or Merger Sub, any deeds, bills of
sale, assignments or assurances and to take and do, in the name and on behalf of
AMI or Merger Sub, any other actions and things to vest, perfect or confirm of
record or otherwise in the Surviving Corporation any and all right, title and
interest in, to and under any of the rights, properties or assets of AMI
acquired or to be acquired by the Surviving Corporation as a result of, or in
connection with, the Merger. Upon the terms and
subject to the conditions of this Agreement, each of the parties hereto shall
(i) make promptly its respective filings, and thereafter make any other required
submissions, under applicable Laws with respect to the Merger and the other
transactions contemplated hereby and (ii) use its reasonable best
efforts to take, or cause to be taken, all appropriate action, and to do, or
cause to be done, all things necessary, proper or advisable under applicable
Laws or otherwise to consummate and make effective the Merger and the other
transactions contemplated hereby, including, without limitation, using its
reasonable best efforts to obtain all permits, consents, approvals,
authorizations, qualifications and orders of Governmental Authorities and
parties to contracts with the AMI or AAEX as are necessary for the consummation
of the Merger and the other transactions contemplated hereby.
16
5.7 Plan of
Reorganization. This Agreement is intended to constitute a
“plan of reorganization” within the meaning of section 1.368-2(g) of the income
tax regulations promulgated under the Code. From and after the date
of this Agreement and until the Effective Time, each party hereto shall use its
reasonable best efforts to cause the Merger to qualify, and will not knowingly
take any action, cause any action to be taken, fail to take any action or cause
any action to fail to be taken which action or failure to act could prevent the
Merger from qualifying, as a reorganization within the meaning of Section 368(a)
of the Code. Following the Effective Time, neither the Surviving
Corporation, AAEX nor any of their affiliates shall knowingly take any action,
cause any action to be taken, fail to take any action or cause any action to
fail to be taken, which action or failure to act could cause the Merger to fail
to qualify as a reorganization within the meaning of Section 368(a) of the
Code.
5.8 Indemnification. AAEX
agrees that all rights to indemnification existing as of the date of this
Agreement for acts or omissions occurring on or prior to the Effective Time in
favor of the directors or officers of AMI as provided in its articles of
incorporation and by-laws or in written contracts in effect on the date of this
Agreement, shall survive the Merger and shall continue in full force and effect
until the earlier of the expiration of the applicable statute of limitations
with respect to any claims against directors or officers of AMI arising out of
such acts or omissions and the sixth anniversary of the Effective
Date.
ARTICLE
6
CONDITIONS
6.1 Mutual
Conditions. Completion of the Merger is subject to the
fulfilment, or waiver by the party entitled to the benefit of the condition, of
the conditions precedent set forth in this Article 7. The
parties hereto will use all reasonable commercial efforts to satisfy or cause to
be satisfied all the conditions precedent that are set forth in this Article 6,
and will use all commercially reasonable efforts to complete the Merger as
promptly as possible.
The
obligations of AMI and AAEX to complete the Merger will be subject to the
following conditions precedent:
|
(r)
|
this
Agreement and the Merger shall have been approved and adopted by the
requisite affirmative vote of the stockholders of AMI in accordance with
the CBCA and AMI’s Articles of
Incorporation;
|
|
(s)
|
receipt
of all required consents and approvals to the
Merger;
|
|
(t)
|
no
provision of any applicable Law shall be in effect, and no judgment,
injunction, order or decree shall have been entered since the date of this
Agreement and shall be in effect, that makes the Merger illegal or
otherwise restrains, enjoins or otherwise prohibits the consummation of
the Merger, except where the violation of such Law, judgment, injunction,
order or decree that would occur if the Merger were consummated would not
have a material adverse effect on AMI or a material adverse effect on
AAEX.
|
17
6.2 Additional
Conditions to the Obligations of AAEX.
AAEX’s
obligations to complete the Merger will be subject to the following conditions
precedent:
|
(a)
|
the
representations and warranties of AMI in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and at
the time of closing of the Merger,
|
|
(b)
|
AMI
shall have complied and duly performed in all material respects with its
covenants in this Agreement;
|
|
(c)
|
the
board of directors of AMI shall have adopted all necessary resolutions,
and all other necessary corporate action shall have been taken by AMI to
permit the completion of the Merger;
and
|
|
(d)
|
there
shall have been no adverse material change in the business and affairs of
AMI, or any event, occurrence or development which would materially and
adversely affect the ability of AMI to complete the
Merger.
|
6.3 Additional
Conditions to the Obligations of AMI.
AMI’s
obligation to complete the Merger will be subject to the following conditions
precedent:
|
(a)
|
the
representation and warranties of AAEX in this Agreement shall be true and
correct in all material aspects as of the date of this Agreement and at
the time of closing of the Merger;
|
|
(b)
|
AAEX
shall have complied and duly performed in all material respects with its
covenants in this Agreement;
|
|
(c)
|
the
board of directors of AAEX shall have adopted all necessary resolutions,
and all other necessary corporate action shall have been taken by AAEX to
permit the completion of the
Merger;
|
|
(d)
|
there
shall have been no adverse material change in the business and affairs of
AAEX, or any event, occurrence, or development which could materially and
adversely affect the ability of AAEX to complete the
Merger.
|
ARTICLE
7
TERMINATION
7.1 Termination. This
Agreement may be terminated:
|
(a)
|
by
the mutual consent of AMI and AAEX (without the need for any action on the
part of their respective
stockholders);
|
18
|
(b)
|
by
AMI if the AMI stockholders shall not have approved the Merger by the
requisite vote by written consent prior to the Closing
Date;
|
|
(c)
|
upon
notice by one party to the other:
|
|
(i)
|
if
the Merger has not been completed by June 30, 2010, except that
the right to terminate this Agreement under this Section shall not be
available to any party whose failure to fulfil any of its obligations has
been a significant cause of, or resulted in, the failure of the Merger to
be completed by June 30, 2010;
or
|
|
(ii)
|
if
there shall be passed any Law or regulation that makes consummation of the
transaction contemplated herein illegal or otherwise prohibited or if any
injunction, order or decree enjoining AMI or AAEX from consummating the
transactions contemplated herein is entered and such injunction, order or
decree has become final and without right of
appeal;
|
|
(d)
|
upon
notice by AMI to AAEX if any condition for the benefit of AMI set forth in
Article 6 (including mutual conditions) has not been satisfied or waived
by AMI; or
|
|
(e)
|
upon
notice by AAEX to AMI if any condition for the benefit of AAEX set forth
in Article 6 (including mutual conditions) has not been satisfied or
waived by AAEX.
|
ARTICLE
8
GENERAL
8.1 Definitions. For
purposes of this Agreement, the following terms will have the following meanings
when used herein with initial capital letters:
“Agreement” has the meaning
assigned to it in the Recital.
“Book-Entry Shares” has the
meaning assigned to it in Section 3.2(a).
“Closing” has the meaning
assigned to it in Section 2.2.
“Closing Date” has the meaning
assigned to it in Section 2.2.
“Certificate” has the meaning
assigned to it in Section 3.1(c).
“Commission” means the U.S.
Securities and Exchange Commission.
“Articles of Merger” has the
meaning assigned to it in Section 2.3.
“CBCA” has the meaning assigned
to it in Section 2.1.
19
“Dissenting Shares” has the
meaning assigned to it in Section 3.3.
“AMI” has the meaning assigned
to it in the Recital.
“Effective Time” has the
meaning assigned to it in Section 2.3.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Exchange Agent” has the
meaning assigned to it in Section 3.2(a).
“Exchange Fund” has the meaning
assigned to it in Section 3.2(a).
“Expenses” has the meaning
assigned to it in Section 6.4.
“Governmental Authority” has the meaning
assigned to it in Schedules “A”(i) and “B”(i).
“Law” means any federal,
national, supranational, state, provincial, local or similar constitution,
statute, law, ordinance, regulation, rule, code, order, requirement or rule of
law (including common law).
“Merger” has the meaning
assigned to it in Section 2.1.
“Merger Sub” has the meaning
assigned to it in the Recital.
“Merger Consideration” has the
meaning assigned to it in Section 3.1.
“AAEX” has the meaning assigned
to it in the Recital.
“AAEX Documents” has the
meaning assigned to it in Section 4.1(o).
“Person” means any individual,
partnership, firm, corporation, limited liability company, association, trust,
unincorporated organization or other entity, as well as any syndicate or group
that would be deemed to be a person under Section 13(d)(3) of the Exchange
Act.
“Recipient” has the meaning
assigned to it in Section 4.7.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
“Share” and “Shares” have the meaning
assigned to them in Section 3.1(a).
“Surviving Corporation” has the
meaning assigned to it in Section 2.1.
“Third Party” has the meaning
assigned to it in Section 4.7.
20
8.2 Binding
Agreement. This Agreement shall be binding upon and shall
enure to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
8.3 Time. Time is of
the essence of this Agreement.
8.4 Governing Law. This
Agreement shall be governed by and construed in accordance with the Laws of the
State of Colorado.
8.5 Waiver of Jury
Trial. Each of the parties hereto hereby waives to the fullest
extent permitted by applicable Law any right it may have to a trial by jury with
respect to any litigation directly or indirectly arising out of, under or in
connection with this Agreement or the transactions contemplated
hereby.
8.6 Confidentiality. Neither AAEX
nor AMI shall make any public announcement concerning the Merger or related
negotiations without the other party’s prior written approval, except as may be
required by Law or rule of any stock exchange or quotation system. If
such an announcement is required by Law or rule of any stock exchange or
quotation system, the party required to make the announcement shall inform the
other party of the contents of the announcement proposed to be made and shall
use its reasonable efforts to obtain the other party’s approval for the
announcement, which approval may not be unreasonably withheld.
8.7 Interpretation;
Construction.
|
(a)
|
The
table of contents and headings herein are for convenience of reference
only, do not constitute part of this Agreement and shall not be deemed to
limit or otherwise affect any of the provisions hereof. Where a reference
in this Agreement is made to a Section, Exhibit or Schedule, such
reference shall be to a Section of, Exhibit to or Schedule of this
Agreement unless otherwise indicated. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed
to be followed by the words “without limitation.” A reference in this
Agreement to $ or dollars is to U.S. dollars. The words “hereof”, “herein”
and “hereunder” and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. References to “this Agreement”
shall include the disclosure letter delivered with this
Agreement.
|
|
(b)
|
The
parties have participated jointly in negotiating and drafting this
Agreement. In the event that an ambiguity or a question of intent or
interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any
provision of this Agreement.
|
21
8.8 Notice. All notices, requests,
consents, claims, demands, waivers and other communications hereunder shall be
in writing and shall be deemed to have been given (a) when delivered by hand
(with written confirmation of receipt), (b) when received by the addressee if
sent by a nationally recognized overnight courier (receipt requested), or (c) on
the date sent by facsimile or e-mail of a PDF document (with confirmation of
transmission) if sent during normal business hours of the recipient, and on the
next Business Day if sent after normal business hours of the recipient. Such
communications must be sent to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in
accordance with this Section 9.8):
|
If
to AAEX or Merger Sub, to:
|
|
123
North College Ave, Suite 200
Fort
Collins, CO 80524
Facsimile:
970-482-6139
Email:
brian@bohemiancompanies.com
Attention: Brian
L. Klemsz, President
|
|
with
a copy (which will not constitute notice to AAEX or Merger Sub)
to:
|
|
David
Wagner & Associates, P.C.
8400
East Prentice Ave.
Penthouse
Suite
Greenwood
Village, CO 80111
Facsimile:
303-409-7660
Email:
dwaa2000@yahoo.com
Attention:
David Wagner
|
|
If
to AMI, to:
|
Accredited
Members, Inc.
7660
Goddard Street, Suite 100
Colorado
Springs, CO 80920
Facsimile:
Email:
jwroth@accreditedmembers.com
Attention:
JW Roth
|
|
|
with
a copy (which will not constitute notice to AMI) to:
|
Burns
Figa & Will, PC
6400
S. Fiddlers Green Circle, Suite 1000
Greenwood
Village, CO 80111
Facsimile:
303-796 2626
Email:
tmehringer@bfw-law.com
Attention:
Theresa M. Mehringer
|
or to
such other Persons, addresses or facsimile numbers as may be designated in
writing by the Person entitled to receive such communication as provided
above.
8.9 Entire
Agreement. This Agreement (including the Exhibits to this
Agreement) and the disclosure schedules to be delivered with this Agreement
constitute the entire agreement among the parties with respect to the subject
matter of this Agreement and supersede all other prior agreements and
understandings, both written and oral, among the parties to this Agreement with
respect to the subject matter of this Agreement. In the event of any
inconsistency between the statements in the body of this Agreement and the
disclosure schedules (other than an exception expressly set forth as such
disclosure schedules), the statements in the body of this Agreement will
control.
22
8.10 Severability. If
any term or provision of this Agreement is invalid, illegal or unenforceable in
any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other term or provision of this Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction. Upon such
determination that any term or other provision is invalid, illegal or
unenforceable, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the greatest
extent possible.
8.11 Assignment. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Neither party may
assign its rights or obligations hereunder without the prior written consent of
the other party, which consent shall not be unreasonably withheld or delayed. No
assignment shall relieve the assigning party of any of its obligations
hereunder.
8.12 Remedies. Except as
otherwise provided in this Agreement, any and all remedies expressly conferred
upon a party to this Agreement will be cumulative with, and not exclusive of,
any other remedy contained in this Agreement, at Law or in equity. The exercise
by a party to this Agreement of any one remedy will not preclude the exercise by
it of any other remedy.
8.13 Specific
Performance. The parties hereto agree that irreparable damage
would occur if any provision of this Agreement were not performed in accordance
with the terms hereof and that the parties shall be entitled to an injunction or
injunctions to prevent breaches or threatened breached of this Agreement or to
enforce specifically the performance of the terms and provisions hereof in any
federal court located in the State of Colorado or any Colorado state court, in
addition to any other remedy to which they are entitled at Law or in
equity.
8.14 Parties in
Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement, other than Section 4.10 (which is intended to be for the benefit of
the persons covered thereby and may be enforced by such persons).
8.15 Counterparts. This
Agreement may be signed in one or more counterparts, originally or by facsimile,
each such counterpart taken together will form one and the same
agreement.
///THE
REMAINDER OF THE PAGE HAS INTENTIONALLY BEEN LEFT BLANK///
23
IN
WITNESS WHEREOF, AMI, AAEX and Merger Sub have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
ACCREDITED
MEMBERS, INC.
| Per: | /s/ Kent Kiefer | |
| Name: |
Kent
Kiefer
|
|
| Title: | Chief Executive Officer |
ACROSS
AMERICA REAL ESTATE EXCHANGE, INC.
| Per: | /s/ Brian L. Klemsz | |
| Name: | Brian L. Klemsz | |
| Title: | President |
AAEX
ACQUISITION CORP.
| Per: | /s/ Brian L. Klemsz | |
| Name: | Brian L. Klemsz | |
| Title: | President |
24