EXHIBIT 2.2
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 10th day of December, 2003, by and between American
Recreational Enterprises, Inc., a Nevada corporation, (the "ISSUER"), NoBidding,
Inc., a New Jersey corporation ("BID") and for the benefit of the individual
shareholders, (the "SHAREHOLDERS"), which SHAREHOLDERS own of all the issued and
outstanding shares of BID.
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. a. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
Agreement, ISSUER agrees to issue to SHAREHOLDERS, prorata, a total of
20,000,000 shares of the common stock of ISSUER, $0.001 par value (the
"Shares"), in exchange for all the issued and outstanding shares of BID, such
that BID shall become a wholly owned subsidiary of the ISSUER.
2. SPIN-OFF OF LENDERS/INVESTORS, INC. ISSUER's wholly-owned subsidiary,
Lenders/Investors, Inc., a Florida corporation, was spun off to the Company's
shareholders prior to the Agreement and the Reorganization, leaving BID as the
sole operating subsidiary of the Company after effecting the Agreement.
3. REPRESENTATIONS AND WARRANTIES. As a condition to closing, ISSUER
represents and warrants to SHAREHOLDERS and BID as follows:
i. Organization. ISSUER is a corporation duly organized, validly
existing, and in good standing under the laws of Nevada, and has all
necessary corporate powers to own properties and carry on a business, and
is duly qualified to do business and is in good standing in Nevada and in
all jurisdictions where such qualification is required. All actions taken
by the Incorporators, directors and shareholders of ISSUER have been valid
and in accordance with the laws of the State of Nevada.
ii. Capital. The authorized capital stock of ISSUER consists of
200,000,000 shares of common stock, $0.001 par value, of which 25,360,007
are issued and outstanding. All outstanding shares are fully paid and
nonassessable, free of liens, encumbrances, options, restrictions (with the
exception of Rule 144 requirements) and legal or equitable rights of others
not a party to this Agreement. Following the Closing, there shall be a
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total of 25,360,007 shares of common stock of ISSUER issued and outstanding
and there will be no outstanding subscriptions, options, rights, warrants,
convertible securities, or other agreements or commitments obligating
ISSUER to issue or to transfer from treasury any additional shares of its
capital stock. None of the outstanding shares of ISSUER are subject to any
agreements restricting transfer or voting of such shares, including without
limitation, any preemptive right or rights of first refusal which have not
been properly waived or extinguished. All of the shareholders of ISSUER
have valid title to such shares and acquired their shares in a lawful
transaction and in accordance with the laws of Nevada. At closing, ISSUER
will not own or control any interest in any other business venture.
iii. Financial Statements. The financial statements of ISSUER have
been prepared in accordance with generally accepted accounting principles
consistently followed by ISSUER throughout the periods indicated, and
fairly present the financial position of ISSUER as of the date of the
balance sheet and the financial statements, and the results of its
operations for the periods indicated. ISSUER is current in its filings with
the Securities and Exchange Commission (SEC) and with any state securities
regulators, where applicable.
iv. Absence of Changes. Since the date of the financial statements
filed with the Securities and Exchange Commission, there has not been any
change in the financial condition or operations of ISSUER, except changes
in the ordinary course of business, which changes have not in the aggregate
been materially adverse.
v. Liabilities. ISSUER does not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or
otherwise, and whether due or to become due, that is not reflected on the
ISSUERS' financial statements, including without limitation, obligations of
ISSUER to officers, directors, shareholders, or employees of ISSUER or any
subsidiary other than (a) for payment of salary for services rendered, (b)
reimbursement for reasonable expenses incurred on behalf of ISSUER and (c)
for other standard employee benefits made generally available to all
employees. ISSUER is not aware of any pending, threatened or asserted
claims, lawsuits or contingencies involving ISSUER or its common stock.
There is no dispute of any kind between the ISSUER and any third party, and
no such dispute will exist at the closing of this Agreement. At closing,
ISSUER will be free from any and all liabilities, liens, claims and/or
commitments.
vi. Ability to Carry Out Obligations. ISSUER has the right, power, and
authority to enter into and perform all its obligations under this
Agreement. The execution and delivery of this Agreement by ISSUER and the
performance by ISSUER of its obligations hereunder will not cause,
constitute, or conflict with or result in (a) any breach or violation or
any of the provisions of or constitute a default under any license,
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indenture, mortgage, charter, instrument, articles of incorporation, bylaw,
or other agreement or instrument to which ISSUER or its shareholders are a
party, or by which they may be bound, nor will any consents or
authorizations of any party other than those hereto be required, (b) an
event that would cause ISSUER to be liable to any party, or (c) an event
that would result in the creation or imposition or any lien, charge or
encumbrance on any asset of ISSUER or upon the securities of ISSUER to be
acquired by SHAREHOLDERS.
vii. Full Disclosure. None of the representations and warranties made
by the ISSUER, or in any certificate or memorandum furnished or to be
furnished by the ISSUER, contains or will contain any untrue statement of a
material fact, or omit any material fact the omission of which would be
misleading.
viii. Power of Attorney. No person holds a power of attorney from
ISSUER.
ix. Compliance with Laws. ISSUER has complied with, and is not in
violation of any federal, state, or local statute, law, and/or regulation
pertaining to ISSUER. ISSUER has complied with all federal and state
securities laws in connection with the issuance, sale and distribution of
its securities. Without limiting the foregoing:
(1) ISSUER has filed all reports, returns, and other documents
required by the SEC, the Internal Revenue Service (IRS) and/or
applicable state securities regulatory or tax authorities,
including any reports connected with the instant transaction as
it applies to ISSUER.
(2) ISSUER has no knowledge or belief that any past filing made with
the IRS, SEC and/or any state authority, as applicable, is or may
be defective, incomplete, or contain any statement of material
fact not true at the time such statement was made, or omits any
material fact the omission of which would be misleading, and
ISSUER agrees to indemnify and hold each of BID and SHAREHOLDERS
harmless for any intentional errors, defects or omissions of
material fact, or failures to disclose any material fact, in any
filing referenced herein.
x. Litigation. ISSUER is not a party to any suit, action, arbitration,
or legal, administrative, or other proceeding, or pending governmental
investigation. To the best knowledge and belief of the ISSUER, there is no
basis for any such action or proceeding and no such action or proceeding is
threatened against ISSUER and ISSUER is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state,
local, or foreign court, department, agency, or instrumentality.
xi. Conduct of Business. Prior to the closing, ISSUER shall conduct
its business in the normal course, and shall not (1) sell, pledge, or
assign any assets (2) amend its Articles of Incorporation or Bylaws, (3)
declare dividends, redeem issue or sell stock or other securities, (4)
incur any liabilities, (5) acquire or dispose of any assets, enter into any
contract, guarantee obligations of any third party, or (6) enter into any
other transaction except as provided herein.
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xii. Documents. All minutes, consents or other documents pertaining to
ISSUER to be delivered at Closing shall be valid and in accordance with the
laws of Nevada.
xiv. Title. Notwithstanding any provision to the contrary, the Shares
to be issued to SHAREHOLDERS will be, at closing, free and clear of all
liens, security interests, pledges, charges, claims, encumbrances and
restrictions of any kind, shall be issued pursuant to Regulation D, Section
506 and 4(2)of the Act and shall bear a Rule 144 legend. None of such
Shares are or will be subject to any voting trust or agreement. No person
holds or has the right to receive any proxy or similar instrument with
respect to such shares, except as provided in this Agreement. ISSUER is not
a party to any agreement which offers or grants to any person the right to
purchase or acquire any of the securities to be issued to SHAREHOLDERS.
There is no applicable local, state or federal law, rule, regulation, or
decree which would, as a result of the issuance of the Shares to
SHAREHOLDERS, impair, restrict or delay SHAREHOLDERS' voting rights with
respect to the Shares.
5. As a condition to Closing, SHAREHOLDERS and BID represent and warrant to
ISSUER as follows:
i. Organization. BID is a corporation duly organized, validly
existing, and in good standing under the laws of New Jersey and in all
jurisdictions in which it conducts business, has all necessary corporate
powers to own properties and carry on a business in these jurisdictions,
and is duly qualified to do business and is in good standing in New Jersey
and in all jurisdictions in which it conducts business and has 20,000,000
shares of its common stock issued and outstanding and no other stock or
class of securities issued and outstanding. All actions taken by the
Incorporators, directors and shareholders of BID have been valid and in
accordance with the laws of New Jersey.
ii. Shareholders and Issued Stock. Exhibit A annexed hereto sets forth
the names, shareholdings and consents of 100% of BID shareholders to this
transaction.
iii. General Obligations. Following the Closing, ISSUER shall comply
with applicable federal and state securities laws.
iv. Counsel. SHAREHOLDERS and BID represent and warrant that prior to
Closing, that they are represented by independent counsel or have had the
opportunity to retain independent counsel to represent them in this
transaction.
v. Corporate Restrictions. ISSUER shall not effect a reverse split of
its common stock or file a Registration Statement on Form S-8, or a similar
form, for a period of at least one year from the date of this Agreement.
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6. INVESTMENT INTENT. SHAREHOLDERS agree that the shares being issued
pursuant to this Agreement may be sold, pledged, assigned, hypothecate or
otherwise transferred, with or without consideration (a "Transfer"), only
pursuant to an effective registration statement under the Act, or pursuant to an
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of ISSUER. SHAREHOLDERS agree, prior to any
transfer, to give written notice to ISSUER expressing his desire to effect the
transfer and describing the proposed transfer.
7. CLOSING. The closing of this transaction ("Closing") shall take place at
000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, XX 00000.
8. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By the ISSUER
(1) Board of Directors Minutes authorizing the issuance of a
certificate or certificates for 20,000,000 Shares, registered in
the names of the SHAREHOLDERS equal to their pro-rata holdings in
BID. All certificates shall be delivered promptly after Closing.
(2) The resignation of all officers of ISSUER.
(3) A Board of Directors resolution appointing such person as
SHAREHOLDERS designate as a director(s) of ISSUER.
(4) The resignation of all the directors of ISSUER, except that of
SHAREHOLDER'S designee, dated subsequent to the resolution
described in 3, above.
(5) Current SEC filings of the ISSUER, which shall include a current
balance sheet and statements of operations, stockholders equity
and cash flows for the twelve (12) month period then ended.
(6) All of the business and corporate records of ISSUER, including
but not limited to correspondence files, bank statements,
checkbooks, savings account books, minutes of shareholder and
directors meetings, financial statements, shareholder listings,
stock transfer records, all state and federal tax returns (if
applicable), agreements and contracts.
(7) A current list of ISSUER's shareholders, including names,
addresses and such other information as may be reasonably
necessary or convenient in the ordinary course of business.
(8) Such other minutes of ISSUER's shareholders or directors as may
reasonably be required by SHAREHOLDERS.
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ii. By SHAREHOLDERS and BID:
(1) Delivery to the ISSUER, or to its Transfer Agent, a Resolution
canceling the issued and outstanding stock of BID.
(2) Consents signed by all BID shareholders consenting to the terms
of this Agreement.
(3) Shareholder list of BID certified by BID's secretary dated of
even date herewith.
9. REMEDIES: ARBITRATION. Any controversy or claim arising out of, or
relating to, this Agreement, or the making, performance, or interpretation
thereof, shall be settled by arbitration in Palm Beach, Florida in accordance
with the Rules of the American Arbitration Association then existing, and
judgment on the arbitration award may be entered in any court having
jurisdiction over the subject matter of the controversy. In the event any suit
or action is instituted to enforce any provision of this Agreement, the
prevailing party in such dispute shall be entitled to recover from the losing
party all reasonable fees, costs and expenses of enforcing any right of such
prevailing party under or with respect to this Agreement.
10. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall
in no way be deemed to define, limit, or add to the meaning of any
provision of this Agreement.
ii. No oral change. This Agreement and any provision hereof, may not
be waived, changed, modified, or discharged orally, but only by an
agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
iii. Non Waiver. Except as otherwise provided herein, no waiver of any
covenant, condition, or provision of this Agreement shall be deemed to have
been made unless expressly in writing and signed by the party against whom
such waiver is charged; and (I) the failure of any party to insist in any
one or more cases upon the performance of any of the provisions, covenants,
or conditions of this Agreement or to exercise any option herein contained
shall not be construed as a waiver or relinquishment for the future of any
such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision
hereof shall not be deemed a waiver of such breach or failure, and (iii) no
waiver by any party of one breach by another party shall be construed as a
waiver with respect to any other or subsequent breach.
iv. Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
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v. Entire Agreement.This Agreement, the Exhibits hereto and the other
documents delivered pursuant hereto contain the entire Agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings.
vi. Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
vii. Severability. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
viii. Amendment. This Agreement may be amended or modified only upon
the written consent of the current officers and directors of ISSUER,
SHAREHOLDERS and BID.
ix. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been
duly given on the date of service if served personally on the party to whom
notice is to be given, or on the third day after mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, and by fax, as follows:
ISSUER: American Recreational Enterprises, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxxx, XX 00000
Phone:(000) 000-0000
BID: NoBidding, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
x. Survival. All representations and warranties made herein shall
survive the Closing of this transaction.
IN WITNESS WHEREOF, the undersigned has executed this Agreement this
10th day of December 2003.
American Recreational Enterprises, Inc. NoBidding, Inc.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxx Xxxxxx
------------------------------- ------------------------------
Xxxxx Xxxxx, President Xxxxxx Xxxxxx, Chairman
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EXHIBIT A
Name BID Shares ISSUER shares Consented To
------------------- ---------------- ------------------- -------------------
Royal Palm Capital 15,300,000 15,300,000 /s/ Xxxxxx Xxxxxx
Group, Inc.
St. Xxxxx Investment 1,700,000 1,700,000 /s/ Xxxxxx Xxxxxx
Group, Inc.
Xxxxxx Xxxxxxx 3,000,000 3,000,000 /s/ Xxxxxx Xxxxxxx
TOTALS 20,000,000 20,000,000
(100%)
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