AGREEMENT AND PLAN OF MERGER
Exhibit
3.4
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER is made as of the 29th day of November,
2007
AMONG:
ACADIA
RESOURCES INC., a corporation formed pursuant to the laws of the State
of Nevada and having an office for business located at 000 XxxXxxx Xxxxx,
Xxxxxx, XX 000000-0000
(“Acadia”)
AND:
SUNOVIA
SOLAR INC., a body corporate formed pursuant to the laws of the State
of Delaware and a wholly owned subsidiary of ACADIA
(the
"Acquirer")
AND:
SUN
ENERGY SOLAR, INC., a body corporate formed pursuant to the laws of the
State of Delaware and having an office for business located at 0000 Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000
("Sun
Energy Solar")
AND:
XXXX
X. XXXXX, III, XXXXXXX XXXXX XXXX, AND XXXX ST.
XXXXXX
(collectively
the “Sun Energy Shareholders”)
WHEREAS:
A. Sun
Energy Solar is a Delaware corporation engaged in the business of developing
solar substrate products for the highway safety market and solar substrate
for
the advertising industry;
B. The
Sun Energy Solar Shareholders own 127,087,130 Sun Energy Solar Shares, which
constitute 54% of the presently issued and outstanding Sun Energy Solar
Shares;
C. Acadia
is a reporting company whose common stock is quoted on the OTC Bulletin Board
under the symbol AADI. However, there have not been any trades in
Acadia common stock since its initial quotation on May 24,
2007. Acadia is engaged in the acquisition and exploration of mineral
properties;
D. The
respective Boards of Directors of Acadia, Sun Energy Solar and the Acquirer
deem
it advisable and in the best interests of Acadia, Sun Energy Solar and the
Acquirer that Sun Energy Solar merge with and into the Acquirer (the "Merger")
pursuant to this Agreement and the Certificate of Merger, and the applicable
provisions of the laws of the State of Delaware; and
E. It
is intended that the Merger shall qualify for United States federal income
tax
purposes as a reorganization within the meaning of Section 368 of the Internal
Revenue Code of 1986, as amended.
NOW
THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the
premises and the mutual covenants, agreements, representations and warranties
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree
as
follows:
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
Definitions
1.1 In
this
Agreement the following terms will have the following meanings:
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(a)
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“Acquisition
Shares” means the 58,485,098 Acadia Common Shares and
to be issued to the shareholders of Sun Energy Solar at Closing pursuant
to the terms of the Merger;
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(b)
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“Agreement”
means this agreement and plan of merger among Acadia, the Acquirer,
Sun
Energy Solar, and the Sun Energy Solar
Shareholders;
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(c)
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“Acadia
Accounts Payable and Liabilities” means all accounts payable and
liabilities of Acadia, on a consolidated basis, due and owing or
otherwise
constituting a binding obligation of Acadia and its subsidiaries
as of
August 31, 2007 as set forth in Acadia’s Form 10-KSB as filed with the
Securities and Exchange Commission on October 19, 2007, a copy of
which is
attached hereto as Schedule “A”;
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(d)
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“Acadia
Accounts Receivable” means all accounts receivable and other
debts owing to Acadia, on a consolidated basis, as of August 31,
2007 as
set forth in Acadia’s Form 10-KSB as filed with the Securities and
Exchange Commission on October 19, 2007, a copy of which is
attached hereto as Schedule “A” ;
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(e)
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“Acadia
Assets” means the undertaking and all the property and assets of
the Acadia Business of every kind and description wheresoever situated
including, without limitation, Acadia Equipment, ACADIA Inventory,
ACADIA
Material Contracts, ACADIA Accounts Receivable, ACADIA Cash, ACADIA
Intangible Assets and ACADIA Goodwill, and all credit cards, charge
cards
and banking cards issued to ACADIA;
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(f)
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“ACADIA
Bank Accounts” means all of the bank accounts, lock boxes and
safety deposit boxes of ACADIA and its subsidiaries or relating to
the
ACADIA Business as set forth in Acadia’s Form 10-KSB as filed with the
Securities and Exchange Commission on October 19, 2007, a copy of
which is
attached hereto as Schedule “A” ;
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(g)
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“ACADIA
Business” means all aspects of any business conducted by ACADIA
and its subsidiaries;
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(h)
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“ACADIA
Cash” means all cash on hand or on deposit to the credit of
ACADIA and its subsidiaries on the Closing
Date;
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(i)
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“ACADIA
Common Shares” means the shares of common stock in the capital of
ACADIA;
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(j)
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“ACADIA
Debt to Related Parties” means the sum of $18,231.86 which was
owed by Acadia to its President, Xxxxx Xxxxxxx. Pursuant to the
terms of the Settlement Agreement dated November 19, 2007, a copy
of which
is attached hereto as Schedule “B”, by and between Acadia and Xxxxx
Xxxxxxx, Acadia has received a release from such
debt;
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(k)
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“ACADIA
Equipment” means all machinery, equipment, furniture, and
furnishings used in the ACADIA Business, including, without limitation,
the items more particularly described in Acadia’s Form 10-KSB as filed
with the Securities and Exchange Commission on October 19, 2007,
a copy of
which is attached hereto as Schedule “A”
;
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(l)
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“ACADIA
Financial Statements” means, collectively, the audited
consolidated financial statements of ACADIA for the fiscal year ended
August 31, 2007, together with the unqualified auditors' report thereon,
as contained in Acadia’s Form 10-KSB as filed with the Securities and
Exchange Commission on October 19, 2007, a copy of which is attached
as
Schedule “A” hereto;
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(m)
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“ACADIA
Goodwill” means the goodwill of the ACADIA Business including the
right to all corporate, operating and trade names associated with
the
ACADIA Business, or any variations of such names as part of or in
connection with the ACADIA Business, all books and records and other
information relating to the ACADIA Business, all necessary licenses
and
authorizations and any other rights used in connection with the ACADIA
Business;
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(n)
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“ACADIA
Insurance Policies” means the public liability insurance and
insurance against loss or damage to the ACADIA Assets and the ACADIA
Business as described in Acadia’s Form 10-KSB as filed with the Securities
and Exchange Commission on October 19, 2007, a copy of which is attached
hereto as Schedule “A”;
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(o)
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“ACADIA
Intangible Assets" means all of the intangible assets of ACADIA
and its subsidiaries, including, without limitation, ACADIA Goodwill,
all
trademarks, logos, copyrights, designs, and other intellectual and
industrial property of ACADIA and its
subsidiaries;
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(p)
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“ACADIA
Inventory” means all inventory and supplies of the
ACADIA Business as of August 31, 2007, as set forth
in as contained in Acadia’s Form 10-KSB as filed with the Securities and
Exchange Commission on October 19, 2007, a copy of which is attached
hereto as Schedule “A”;
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(q)
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“ACADIA
Material Contracts” means the burden and benefit of and the
right, title and interest of ACADIA and its subsidiaries in, to and
under
all trade and non-trade contracts, engagements or commitments, whether
written or oral, to which ACADIA or its subsidiaries are entitled
whereunder ACADIA or its subsidiaries are obligated to pay or entitled
to
receive the sum of $10,000 or more including, without limitation,
any
pension plans, profit sharing plans, bonus plans, loan agreements,
security agreements, indemnities and guarantees, any agreements with
employees, lessees, licensees, managers, accountants, suppliers,
agents,
distributors, officers, directors, attorneys or others which cannot
be
terminated without liability on not more than one month's notice,
and
those contracts described in as contained in Acadia’s Form
10-KSB as filed with the Securities and Exchange Commission on October
19,
2007, a copy of which is attached hereto as Schedule
“A”;
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(r)
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Reserved.
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(s)
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“Closing”
means the completion, on the Closing Date, of the transactions
contemplated hereby in accordance with Article 9
hereof;
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(t)
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“Closing
Date” means the day on which all conditions precedent to the
completion of the transaction as contemplated hereby have been satisfied
or waived;
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(u)
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“Effective
Time” means the date of the filing of an appropriate Certificate
of Merger in the form required by the State of Delaware, which certificate
shall provide that the Merger shall become effective upon such
filing;
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(v)
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“Merger”
means the merger, at the Effective Time, of Sun Energy Solar and
the
Acquirer pursuant to this Agreement and Plan of
Merger;
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(w)
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“Merger
Consideration” means the Acquisition
Shares;
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(x)
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“Place
of Closing” means the offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx
LLP, or such other place as ACADIA and Sun Energy Solar may mutually
agree
upon;
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(y)
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“State
Corporation Law” means the General Corporation Law of the State
of Delaware;
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(z)
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“Surviving
Company” means the Acquirer following the merger with Sun Energy
Solar;
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(aa)
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“Sun
Energy Solar Accounts Payable and Liabilities” means all accounts
payable and liabilities of Sun Energy Solar, due and owing or otherwise
constituting a binding obligation of Sun Energy Solar (other than
a Sun
Energy Solar Material Contract) as of October 31, 2007 as set forth
in the
unaudited financial statements of Sun Energy Solar, a copy of which
is
attached hereto as Schedule “C”;
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(bb)
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“Sun
Energy Solar Accounts Receivable” means all accounts receivable
and other debts owing to Sun Energy Solar, as of October 31, 2007
as set
forth in the unaudited financial statements of Sun Energy Solar,
a copy of
which is attached hereto as Schedule
“C”;
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(cc)
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“Sun
Energy Solar Assets“ means the undertaking and all the property
and assets of the Sun Energy Solar Business of every kind and description
wheresoever situated including, without limitation, Sun Energy Solar
Equipment, Sun Energy Solar Inventory, Sun Energy Solar Material
Contracts, Sun Energy Solar Accounts Receivable, Sun Energy Solar
Cash,
Sun Energy Solar Intangible Assets and Sun Energy Solar Goodwill,
and all
credit cards, charge cards and banking cards issued to Sun Energy
Solar;
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(dd)
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“Sun
Energy Solar Bank Accounts” means all of the bank accounts, lock
boxes and safety deposit boxes of Sun Energy Solar or relating to
the Sun
Energy Solar Business as set forth in the financial statements of
Sun
Energy Solar, a copy of which is attached hereto as Schedule
“C”;
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(ee)
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“Sun
Energy Solar Business” means all aspects of the business
conducted by Sun Energy Solar;
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(ff)
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“Sun
Energy Solar Cash” means all cash on hand or on deposit to the
credit of Sun Energy Solar on the Closing
Date;
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(gg)
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“Sun
Energy Solar Debt to Related Parties” means the debts owed by Sun
Energy Solar and its subsidiaries to the Sun Energy Solar Shareholders
or
to any family member thereof, or to any affiliate, director or officer
of
Sun Energy Solar or the Sun Energy Solar Shareholders as described
in the
unaudited financial statements of Sun Energy Solar, a copy of which
is
attached hereto as Schedule “C”;
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(hh)
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“Sun
Energy Solar Equipment” means all machinery, equipment,
furniture, and furnishings used in the Sun Energy Solar Business,
including, without limitation, the items more particularly described
in
the unaudited financial statements of Sun Energy Solar, a copy of
which is
attached hereto as Schedule “C”;
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(ii)
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“Sun
Energy Solar Financial Statements” means collectively, the
audited consolidated financial statements of Sun Energy Solar for
the
period from inception (November 9, 2005) through July 31, 2006, and
the
year ended July 31, 2007 together with the unqualified auditors'
reports
thereon, true copies of which are attached as Schedule “D”
hereto. Subject to the consent of ACADIA, with unaudited
financial statements for the three month period ended October 31,
2007. a
copy of which is attached hereto as Schedule
“C”;
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(jj)
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“Sun
Energy Solar Goodwill” means the goodwill of the Sun Energy Solar
Business together with the exclusive right of ACADIA to represent
itself
as carrying on the Sun Energy Solar Business in succession of Sun
Energy
Solar subject to the terms hereof, and the right to use any words
indicating that the Sun Energy Solar Business is so carried on including
the right to use the name "Sun Energy Solar” or “Sunovia Energy
Technologies" or any variation thereof as part of the name of or
in
connection with the Sun Energy Solar Business or any part thereof
carried
on or to be carried on by Sun Energy Solar, the right to all corporate,
operating and trade names associated with the Sun Energy Solar Business,
or any variations of such names as part of or in connection with
the Sun
Energy Solar Business, all telephone listings and telephone advertising
contracts, all lists of customers, books and records and other information
relating to the Sun Energy Solar Business, all necessary licenses
and
authorizations and any other rights used in connection with the Sun
Energy
Solar Business;
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(kk)
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“Sun
Energy Solar Insurance Policies” means the public liability
insurance and insurance against loss or damage to Sun Energy Solar
Assets
and the Sun Energy Solar Business as described in the unaudited financial
statements of Sun Energy Solar, a copy of which is attached hereto
as
Schedule “C”;
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(ll)
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“Sun
Energy Solar Intangible Assets” means all of the intangible
assets of Sun Energy Solar, including, without limitation, Sun Energy
Solar Goodwill, all trademarks, logos, copyrights, designs, and other
intellectual and industrial property of Sun Energy Solar and its
subsidiaries;
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(mm)
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“Sun
Energy Solar Inventory” means all inventory and supplies of the
Sun Energy Solar Business as of October 31, 2007 as set forth in
the
unaudited financial statements of Sun Energy Solar, a copy of which
is
attached hereto as Schedule “C”;
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(nn)
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“Sun
Energy Solar Material Contracts” means the burden and benefit of
and the right, title and interest of Sun Energy Solar in, to and
under all
trade and non-trade contracts, engagements or commitments, whether
written
or oral, to which Sun Energy Solar is entitled in connection with
the Sun
Energy Solar Business whereunder Sun Energy Solar is obligated to
pay or
entitled to receive the sum of $100,000 or more including, without
limitation, any pension plans, profit sharing plans, bonus plans,
loan
agreements, security agreements, indemnities and guarantees, any
agreements with employees, lessees, licensees, managers, accountants,
suppliers, agents, distributors, officers, directors, attorneys or
others
which cannot be terminated without liability on not more than one
month's
notice, and those contracts described in the unaudited financial
statements of Sun Energy Solar, a copy of which is attached hereto
as
Schedule “C”; and
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(oo)
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“Sun
Energy Solar Shares” means all of the issued and outstanding
shares of Sun Energy Solar's equity
stock.
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Any
other
terms defined within the text of this Agreement will have the meanings so
ascribed to them.
Captions
and Section Numbers
1.2 The
headings and section references in this Agreement are for convenience of
reference only and do not form a part of this Agreement and are not intended
to
interpret, define or limit the scope, extent or intent of this Agreement or
any
provision thereof.
Section
References and Schedules
1.3 Any
reference to a particular “Article”, “section”, “paragraph”, “clause” or other
subdivision is to the particular Article, section, clause or other subdivision
of this Agreement and any reference to a Schedule by letter will mean the
appropriate Schedule attached to this Agreement and by such reference the
appropriate Schedule is incorporated into and made part of this
Agreement. The Schedules to this Agreement are as
follows:
Information
concerning ACADIA
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Schedule
“A”
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Acadia
Form 10-KSB as filed with the Securities and Exchange Commission
on
October 19, 2007
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Schedule
“B” Settlement
Agreement by and between Acadia and Xxxxx Xxxxxxx
Information
concerning Sun Energy Solar
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Schedule
“C”
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Unaudited
Financial Statements of Sun Energy Solar as of October 31,
2007
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Schedule
“D”
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Audited
Consolidated Financial Statements for the Period From Inception (November
9, 2005) through July 31, 206 and the year ended July 31,
2007
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Severability
of Clauses
1.4 If
any part of this Agreement is declared or held to be invalid for any reason,
such invalidity will not affect the validity of the remainder which will
continue in full force and effect and be construed as if this Agreement had
been
executed without the invalid portion, and it is hereby declared the intention
of
the parties that this Agreement would have been executed without reference
to
any portion which may, for any reason, be hereafter declared or held to be
invalid.
ARTICLE
2
THE
MERGER
The
Merger
2.1 At
Closing, Sun Energy Solar shall be merged with and into the Acquirer pursuant
to
this Agreement and Plan of Merger and the separate corporate existence of Sun
Energy Solar shall cease and the Acquirer, as it exists from and after the
Closing, shall be the Surviving Company.
Effect
of the Merger
2.2 The
Merger shall have the effect provided therefor by the State Corporation Law.
Without limiting the generality of the foregoing, and subject thereto, at
Closing (i) all the rights, privileges, immunities, powers and franchises,
of a
public as well as of a private nature, and all property, real, personal and
mixed, and all debts due on whatever account, including without limitation
subscriptions to shares, and all other causes in action, and all and every
other
interest of or belonging to or due to Sun Energy Solar or the Acquirer, as
a
group, subject to the terms hereof, shall be taken and deemed to be transferred
to, and vested in, the Surviving Company without further act or deed; and all
property, rights and privileges, immunities, powers and franchises and all
and
every other interest shall be thereafter as effectually the property of the
Surviving Company, as they were of Sun Energy Solar and the Acquirer, as a
group, and (ii) all debts, liabilities, duties and obligations of Sun Energy
Solar and the Acquirer, as a group, subject to the terms hereof, shall become
the debts, liabilities and duties of the Surviving Company and the Surviving
Company shall thenceforth be responsible and liable for all debts, liabilities,
duties and obligations of Sun Energy Solar and the Acquirer, as a group, and
neither the rights of creditors nor any liens upon the property of Sun Energy
Solar or the Acquirer, as a group, shall be impaired by the Merger, and may
be
enforced against the Surviving Company.
Certificate
of Incorporation; Bylaws; Directors and Officers
2.3 The
Certificate of Incorporation of the Surviving Company from and after the Closing
shall be the Certificate of Incorporation of the Acquirer until thereafter
amended in accordance with the provisions therein and as provided by the
applicable provisions of the State Corporation Law. The Bylaws of the
Surviving Company from and after the Closing shall be the Bylaws of Sun Energy
Solar as in effect immediately prior to the Closing, continuing until thereafter
amended in accordance with their terms, the Certificate of Incorporation of
the
Surviving Company and as provided by the State Corporation Law. The
Directors of the Acquirer at the Effective Time shall continue to be the
Directors of Sun Energy Solar.
Conversion
of Securities
2.4 At
the Effective Time, by virtue of the Merger and without any action on the part
of the Acquirer, Sun Energy Solar or the Sun Energy Solar Shareholders or any
other shareholder of Sun Energy Solar, the shares of capital stock of each
of
Sun Energy Solar and the Acquirer shall be converted as follows:
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(a)
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Capital
Stock of the Acquirer. Each issued and outstanding share of the
Acquirer's capital stock shall continue to be issued and outstanding
and
shall be converted into one share of validly issued, fully paid,
and
non-assessable common stock of the Surviving Company. Each stock
certificate of the Acquirer evidencing ownership of any such shares
shall
continue to evidence ownership of such shares of capital stock of
the
Surviving Company.
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(b)
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Conversion
of Sun Energy Solar Shares. Each Sun Energy Solar Share that is issued
and outstanding at the Effective Time shall automatically be cancelled
and
extinguished and converted, without any action on the part of the
holder
thereof, into the right to receive at the time and in the amounts
described in this Agreement an amount of ACADIA Common Shares equal
to
58,485,098 divided by the number of Sun Energy Solar Shares outstanding
immediately prior to Closing. All such Sun Energy Solar Shares, when
so
converted, shall no longer be outstanding and shall automatically
be
cancelled and retired and shall cease to exist, and each holder of
a
certificate representing any such shares shall cease to have any
rights
with respect thereto, except the right to receive the Acquisition
Shares
paid in consideration therefor upon the surrender of such certificate
in
accordance with this Agreement.
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Adherence
with Applicable Securities Laws
2.5 The
Sun Energy Solar Shareholders agrees that they are acquiring a pro rata amount
of the Acquisition Shares for investment purposes and will not offer, sell
or
otherwise transfer, pledge or hypothecate any of the Acquisition Shares issued
to them (other than pursuant to an effective Registration Statement under the
Securities Act of 1933, as amended) directly or indirectly
unless:
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(a)
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the
sale is to ACADIA;
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(b)
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the
sale is made pursuant to the exemption from registration under the
Securities Act of 1933,as amended, provided by Rule 144
thereunder; or
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(c)
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the
Acquisition Shares are sold in a transaction that does not require
registration under the Securities Act of 1933, as amended, or any
applicable United States state laws and regulations governing the
offer
and sale of securities, and the vendor has furnished to ACADIA an
opinion
of counsel to that effect or such other written opinion as may be
reasonably required by ACADIA.
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The
Sun Energy Solar Shareholders
acknowledge that the certificates representing the Acquisition Shares shall
bear
the following legend:
NO
SALE,
OFFER TO SELL, OR TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE SHALL
BE MADE UNLESS A REGISTRATION STATEMENT UNDER THE FEDERAL SECURITIES ACT OF
1933, AS AMENDED, IN RESPECT OF SUCH SHARES IS THEN IN EFFECT OR AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SAID ACT IS THEN IN FACT APPLICABLE TO
SAID SHARES.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
OF
ACADIA
Representations
and Warranties
3.1 ACADIA
represents and warrants in all material respects to Sun Energy Solar, with
the
intent that Sun Energy Solar will rely thereon in entering into this Agreement
and in approving and completing the transactions contemplated hereby,
that:
ACADIA
- Corporate Status and Capacity
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(a)
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Incorporation.
ACADIA is a corporation duly incorporated and validly subsisting
under the
laws of the State of Nevada, and is in good standing with the office
of
the Secretary of State for the State of
Nevada;
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(b)
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Carrying
on Business. ACADIA has recently ceased its mining operations and
presently does not currently conduct business. ACADIA is duly authorized
to carry on such business in British Columbia, Canada. The
nature of the ACADIA Business does not require ACADIA to register
or
otherwise be qualified to carry on business in any other
jurisdictions;
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(c)
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Corporate
Capacity. ACADIA has the corporate power, capacity and authority to
own the ACADIA Assets and to enter into and complete this
Agreement;
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(d)
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Reporting
Status; Listing. ACADIA is required to file current reports with the
Securities and Exchange Commission pursuant to section 12(g) of the
Securities Exchange Act of 1934, the ACADIA Common Shares are quoted
on
the OTC Bulletin Board, and all reports required to be filed by ACADIA
with the Securities and Exchange Commission or NASD have been timely
filed;
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Acquirer
- Corporate Status and Capacity
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(e)
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Incorporation.
The Acquirer is a corporation duly incorporated and validly subsisting
under the laws of the State of Delaware, and is in good standing
with the
office of the Secretary of State for the State of
Delaware;
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(f)
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Carrying
on Business. Other than corporate formation and organization, the
Acquirer has not carried on business activities to
date.
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(g)
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Corporate
Capacity. The Acquirer has the corporate power, capacity and authority
to enter into and complete this
Agreement;
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ACADIA
- Capitalization
|
(h)
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Authorized
Capital. The authorized capital of ACADIA consists of 75,000,000
ACADIA Common Shares, $0.001 par value, of which 7,350,000 ACADIA
Common
Shares are presently issued and
outstanding;;
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(i)
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No
Option. No person, firm or corporation has any agreement or option
or
any right capable of becoming an agreement or option for the acquisition
of ACADIA Common Shares or for the purchase, subscription or issuance
of
any of the unissued shares in the capital of
ACADIA;
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(j)
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Capacity.
ACADIA has the full right, power and authority to enter into this
Agreement on the terms and conditions contained
herein;
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Acquirer
Capitalization
|
(k)
|
Authorized
Capital. The authorized capital of the Acquirer consists of 200 shares
of common stock, $0.0001 par value, of which one share of common
stock is
presently issued and outstanding;
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(l)
|
No
Option. No person, firm or corporation has any agreement or option
or
any right capable of becoming an agreement or option for the acquisition
of any common or preferred shares in Acquirer or for the purchase,
subscription or issuance of any of the unissued shares in the capital
of
Acquirer;
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(m)
|
Capacity.
The Acquirer has the full right, power and authority to enter into
this
Agreement on the terms and conditions contained
herein;
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ACADIA
- Records and Financial Statements
|
(n)
|
Charter
Documents. The charter documents of ACADIA and the Acquirer have not
been altered since the incorporation of each, respectively, except
as
filed in the record books of ACADIA or the Acquirer, as the case
may
be;
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(o)
|
Corporate
Minute Books. The corporate minute books of ACADIA and its
subsidiaries are complete and each of the minutes contained therein
accurately reflect the actions that were taken at a duly called and
held
meeting or by consent without a meeting. All actions by ACADIA and
its
subsidiaries which required director or shareholder approval are
reflected
on the corporate minute books of ACADIA and its subsidiaries. ACADIA
and
its subsidiaries are not in violation or breach of, or in default
with
respect to, any term of their respective Certificates of Incorporation
(or
other charter documents) or
by-laws.
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(p)
|
ACADIA
Financial Statements. The ACADIA Financial Statements present fairly,
in all material respects, the assets and liabilities (whether accrued,
absolute, contingent or otherwise) of ACADIA, on a consolidated basis,
as
of the respective dates thereof, and the sales and earnings of the
ACADIA
Business during the periods covered thereby, in all material respects
and
have been prepared in substantial accordance with generally accepted
accounting principles consistently
applied;
|
|
(q)
|
ACADIA
Accounts Payable and Liabilities. There are no material liabilities,
contingent or otherwise, of ACADIA or its subsidiaries which are
not
disclosed in Schedule “A” hereto or reflected in the ACADIA Financial
Statements except those incurred in the ordinary course of business
since
the date of the said schedule and the ACADIA Financial Statements,
and
neither ACADIA nor its subsidiaries have guaranteed or agreed to
guarantee
any debt, liability or other obligation of any person, firm or
corporation. Without limiting the generality of the foregoing, all
accounts payable and liabilities of ACADIA and its subsidiaries as
of
August 31, 2007 are described in Schedule “A”
hereto;
|
|
(r)
|
ACADIA
Accounts Receivable. All the ACADIA Accounts Receivable result from
bona fide business transactions and services actually rendered without,
to
the knowledge and belief of ACADIA, any claim by the obligor for
set-off
or counterclaim;
|
|
(s)
|
ACADIA
Bank Accounts. All of the ACADIA Bank Accounts, their location,
numbers and the authorized signatories thereto are as set forth in
Schedule “A” hereto;
|
|
(t)
|
No
Debt to Related Parties. Except as disclosed in Schedule “B” hereto,
neither ACADIA nor its subsidiaries are, and on Closing will not
be,
materially indebted to any affiliate, director or officer of ACADIA
except
accounts payable on account of bona fide business transactions of
ACADIA
incurred in normal course of the ACADIA Business, including employment
agreements, none of which are more than 30 days in
arrears;
|
|
(u)
|
No
Related Party Debt to ACADIA. No director or officer or affiliate of
ACADIA is now indebted to or under any financial obligation to ACADIA
or
its subsidiaries on any account whatsoever, except for advances on
account
of travel and other expenses not exceeding $5,000 in
total;
|
|
(v)
|
No
Dividends. No dividends or other distributions on any shares in the
capital of ACADIA have been made, declared or authorized since the
date of
ACADIA Financial Statements;
|
|
(w)
|
No
Payments. No payments of any kind have been made or authorized since
the date of the ACADIA Financial Statements to or on behalf of officers,
directors, shareholders or employees of ACADIA or its subsidiaries
or
under any management agreements with ACADIA or its subsidiaries,
except
payments made in the ordinary course of business and at the regular
rates
of salary or other remuneration payable to
them;
|
|
(x)
|
No
Pension Plans. There are no pension, profit sharing, group insurance
or similar plans or other deferred compensation plans affecting ACADIA
or
its subsidiaries;
|
|
(y)
|
No
Adverse Events. Since the date of the ACADIA Financial
Statements
|
|
(i)
|
there
has not been any material adverse change in the financial position
or
condition of ACADIA, its subsidiaries, its liabilities or the ACADIA
Assets or any damage, loss or other change in circumstances materially
affecting ACADIA, the ACADIA Business or the ACADIA Assets or ACADIA’
right to carry on the ACADIA Business, other than changes in the
ordinary
course of business,
|
|
(ii)
|
there
has not been any damage, destruction, loss or other event (whether
or not
covered by insurance) materially and adversely affecting ACADIA,
its
subsidiaries, the ACADIA Business or the ACADIA
Assets,
|
|
(iii)
|
there
has not been any material increase in the compensation payable or
to
become payable by ACADIA to any of ACADIA’ officers, employees or agents
or any bonus, payment or arrangement made to or with any of
them,
|
|
(iv)
|
the
ACADIA Business has been and continues to be carried on in the ordinary
course,
|
|
(v)
|
ACADIA
has not waived or surrendered any right of material
value,
|
|
(vi)
|
Neither
ACADIA nor its subsidiaries have discharged or satisfied or paid
any lien
or encumbrance or obligation or liability other than current liabilities
in the ordinary course of business,
and
|
|
(vii)
|
no
capital expenditures in excess of $10,000 individually or $30,000
in total
have been authorized or made.
|
ACADIA
- Income Tax Matters
|
(z)
|
Tax
Returns. Except as provided on Schedule 3.1(z), all tax returns and
reports of ACADIA and its subsidiaries required by law to be filed
have
been filed and are true, complete and correct, and any taxes payable
in
accordance with any return filed by ACADIA and its subsidiaries or
in
accordance with any notice of assessment or reassessment issued by
any
taxing authority have been so paid;
|
|
(aa)
|
Current
Taxes. Adequate provisions have been made for taxes payable for the
current period for which tax returns are not yet required to be filed
and
there are no agreements, waivers, or other arrangements providing
for an
extension of time with respect to the filing of any tax return by,
or
payment of, any tax, governmental charge or deficiency by ACADIA
or its
subsidiaries. ACADIA is not aware of any contingent tax
liabilities or any grounds which would prompt a reassessment including
aggressive treatment of income and expenses in filing earlier tax
returns;
|
ACADIA
- Applicable Laws and Legal Matters
|
(bb)
|
Licenses.
ACADIA and its subsidiaries hold all licenses and permits as may
be
requisite for carrying on the ACADIA Business in the manner in which
it
has heretofore been carried on, which licenses and permits have been
maintained and continue to be in good standing except where the failure
to
obtain or maintain such licenses or permits would not have a material
adverse effect on the ACADIA
Business;
|
|
(cc)
|
Applicable
Laws. Neither ACADIA nor its subsidiaries have been charged with
or
received notice of breach of any laws, ordinances, statutes, regulations,
by-laws, orders or decrees to which they are subject or which apply
to
them the violation of which would have a material adverse effect
on the
ACADIA Business, and to ACADIA’ knowledge, neither ACADIA nor its
subsidiaries are in breach of any laws, ordinances, statutes, regulations,
bylaws, orders or decrees the contravention of which would result
in a
material adverse impact on the ACADIA
Business;
|
|
(dd)
|
Pending
or Threatened Litigation. There is no material litigation or
administrative or governmental proceeding pending or threatened against
or
relating to ACADIA, its subsidiaries, the ACADIA Business, or any
of the
ACADIA Assets nor does ACADIA have any knowledge of any deliberate
act or
omission of ACADIA or its subsidiaries that would form any material
basis
for any such action or proceeding;
|
|
(ee)
|
No
Bankruptcy. Neither ACADIA nor its subsidiaries have made any
voluntary assignment or proposal under applicable laws relating to
insolvency and bankruptcy and no bankruptcy petition has been filed
or
presented against ACADIA or its subsidiaries and no order has been
made or
a resolution passed for the winding-up, dissolution or liquidation
of
ACADIA or its subsidiaries;
|
|
(ff)
|
Labor
Matters. Neither ACADIA nor its subsidiaries are party to any
collective agreement relating to the ACADIA Business with any labor
union
or other association of employees and no part of the ACADIA Business
has
been certified as a unit appropriate for collective bargaining or,
to the
knowledge of ACADIA, has made any attempt in that
regard;
|
|
(gg)
|
Finder's
Fees. Neither ACADIA nor its subsidiaries are party to any agreement
which provides for the payment of finder's fees, brokerage fees,
commissions or other fees or amounts which are or may become payable
to
any third party in connection with the execution and delivery of
this
Agreement and the transactions contemplated
herein;
|
Execution
and Performance of Agreement
|
(hh)
|
Authorization
and Enforceability. The execution and delivery of this Agreement, and
the completion of the transactions contemplated hereby, have been
duly and
validly authorized by all necessary corporate action on the part
of ACADIA
and the Acquirer;
|
|
(ii)
|
No
Violation or Breach. The execution and performance of this Agreement
will not:
|
|
(i)
|
violate
the charter documents of ACADIA or the Acquirer or result in any
breach
of, or default under, any loan agreement, mortgage, deed of trust,
or any
other agreement to which ACADIA or its subsidiaries are
party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement including,
without limitation, the ACADIA Material Contracts, or any right or
rights
enjoyed by ACADIA or its
subsidiaries,
|
|
(iii)
|
result
in any alteration of ACADIA’ or its subsidiaries’ obligations under any
agreement to which ACADIA or its subsidiaries are party including,
without
limitation, the ACADIA Material
Contracts,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
ACADIA
Assets,
|
|
(v)
|
result
in the imposition of any tax liability to ACADIA or its subsidiaries
relating to the ACADIA Assets, or
|
|
(vi)
|
violate
any court order or decree to which either ACADIA or its subsidiaries
are
subject;
|
The
ACADIA Assets - Ownership and Condition
|
(jj)
|
Business
Assets. The ACADIA Assets comprise all of the property and assets of
the ACADIA Business, and no other person, firm or corporation owns
any
assets used by ACADIA or its subsidiaries in operating the ACADIA
Business, whether under a lease, rental agreement or other arrangement,
other than as disclosed in Schedules “A”
hereto;
|
|
(kk)
|
Title.
ACADIA or its subsidiaries are the legal and beneficial owner of
the
ACADIA Assets, free and clear of all mortgages, liens, charges, pledges,
security interests, encumbrances or other claims whatsoever, save
and
except as disclosed in Schedules “A”
hereto;
|
|
(ll)
|
No
Option. No person, firm or corporation has any agreement or option
or
a right capable of becoming an agreement for the purchase of any
of the
ACADIA Assets;
|
|
(mm)
|
ACADIA
Insurance Policies. ACADIA and its subsidiaries maintain the public
liability insurance and insurance against loss or damage to the ACADIA
Assets and the ACADIA Business as described in Schedule “A”
hereto;
|
|
(nn)
|
ACADIA
Material Contracts. The ACADIA Material Contracts listed in Schedule
“I” constitute all of the material contracts of ACADIA and its
subsidiaries;
|
|
(oo)
|
No
Default. There has not been any default in any material obligation of
ACADIA or any other party to be performed under any of the ACADIA
Material
Contracts, each of which is in good standing and in full force and
effect
and unamended (except as disclosed in Schedule “I” hereto), and ACADIA is
not aware of any default in the obligations of any other party to
any of
the ACADIA Material Contracts;
|
|
(pp)
|
No
Compensation on Termination. There are no agreements, commitments or
understandings relating to severance pay or separation allowances
on
termination of employment of any employee of ACADIA or its subsidiaries.
Neither ACADIA nor its subsidiaries are obliged to pay benefits or
share
profits with any employee after termination of employment except
as
required by law;
|
ACADIA
Assets - ACADIA Equipment
|
(qq)
|
ACADIA
Equipment. The ACADIA Equipment has been maintained in a manner
consistent with that of a reasonably prudent owner and such equipment
is
in good working condition;
|
ACADIA
Assets - ACADIA Goodwill and Other Assets
|
(rr)
|
ACADIA
Goodwill. ACADIA and its subsidiaries does not carry on the ACADIA
Business under any other business or trade names. ACADIA does not
have any
knowledge of any infringement by ACADIA or its subsidiaries of any
patent,
trademarks, copyright or trade
secret;
|
The
ACADIA Business
|
(ss)
|
Maintenance
of Business. Since the date of the ACADIA Financial Statements, ACADIA
and its subsidiaries have not entered into any material agreement
or
commitment except in the ordinary course and except as disclosed
herein;
|
|
(tt)
|
Subsidiaries.
Except for the Acquirer, ACADIA does not own any subsidiaries and
does not
otherwise own, directly or indirectly, any shares or interest in
any other
corporation, partnership, joint venture or firm;
and
|
ACADIA
- Acquisition Shares
|
(uu)
|
Acquisition
Shares. The Acquisition Shares when delivered to the holders of Sun
Energy Solar Shares pursuant to the Merger shall be validly issued
and
outstanding as fully paid and non-assessable shares and the Acquisition
Shares shall be transferable upon the books of ACADIA, in all cases
subject to the provisions and restrictions of all applicable securities
laws.
|
Non-Merger
and Survival
3.2 The
representations and warranties of ACADIA contained herein will be true at and
as
of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion
of the transactions contemplated hereby, the waiver of any condition contained
herein (unless such waiver expressly releases a party from any such
representation or warranty) or any investigation made by Sun Energy Solar or
the
Sun Energy Solar Shareholders, the representations and warranties of ACADIA
shall survive the Closing.
Indemnity
3.3 ACADIA
agrees to indemnify and save harmless Sun Energy Solar and the Sun Energy Solar
Shareholders from and against any and all claims, demands, actions, suits,
proceedings, assessments, judgments, damages, costs, losses and expenses,
including any payment made in good faith in settlement of any claim (subject
to
the right of ACADIA to defend any such claim), resulting from the breach by
it
of any representation or warranty made under this Agreement or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished by ACADIA to Sun Energy Solar or the Sun Energy
Solar Shareholders hereunder.
ARTICLE
4
COVENANTS
OF ACADIA
Covenants
4.1 ACADIA
covenants and agrees with Sun Energy Solar that it will:
|
(a)
|
Conduct
of Business. Until the Closing, conduct its business diligently and in
the ordinary course consistent with the manner in which it generally
has
been operated up to the date of execution of this
Agreement;
|
|
(b)
|
Preservation
of Business. Until the Closing, use its best efforts to
preserve the ACADIA Business and the ACADIA Assets and, without
limitation, preserve for Sun Energy Solar ACADIA’s and its subsidiaries’
relationships with any third party having business relations with
them;
|
|
(c)
|
Access.
Until the Closing, give Sun Energy Solar, the Sun Energy Solar
Shareholders, and their representatives full access to all of the
properties, books, contracts, commitments and records of ACADIA,
and
furnish to Sun Energy Solar, the Sun Energy Solar Shareholders and
their
representatives all such information as they may reasonably
request;
|
|
(d)
|
Procure
Consents. Until the Closing, take all reasonable steps required to
obtain, prior to Closing, any and all third party consents required
to
permit the Merger and to preserve and maintain the ACADIA Assets
notwithstanding the change in control of Sun Energy Solar arising
from the
Merger;
|
|
(e)
|
Name
Change. Immediately after the execution of this Agreement, take such
steps are required to change the name of ACADIA to “Sunovia Energy
Technologies, Inc.” or such similar name as may be acceptable
to the board of directors of Sun Energy
Solar;
|
|
(f)
|
Employment
Agreement. On or prior to Closing, take such steps as are
required to enter into an employment agreement with Xxxx X. Xxxxx
III as
may be acceptable to both parties;
|
|
(g)
|
Reserved;
|
|
(h)
|
Reserved;
|
|
(i)
|
Filing
of 14f-1 More than ten days prior to the Closing Date,
ACADIA shall file with the Securities and Exchange Commission a report
on
Form 14f-1 disclosing the change in control of
ACADIA;
|
|
(j)
|
Resignation
of Xxxxx Xxxxxxx; Appointment of Xxxx X. Xxxxx III. Upon the
execution of this Agreement, Xxxxx Xxxxxxx shall resign from all
positions
he holds as an officer of ACADIA. Upon the execution of this Agreement,
Xxxx X. Xxxxx III shall be appointed as President, Chief Executive
Officer, Chief Financial Officer, and Secretary of ACADIA;
and
|
|
(k)
|
Change
of Address. Upon the execution of this Agreement, ACADIA
shall change it executive office address to 0000 Xxxxxxxx Xxxxx,
Xxxxx
000, Xxxxxxxx, XX 00000.
|
Authorization
4.2 ACADIA
hereby agrees to authorize and direct any and all federal, state, municipal,
foreign and international governments and regulatory authorities having
jurisdiction respecting ACADIA and its subsidiaries to release any and all
information in their possession respecting ACADIA and its subsidiaries to Sun
Energy Solar. ACADIA shall promptly execute and deliver to Sun Energy Solar
any
and all consents to the release of information and specific authorizations
which
Sun Energy Solar reasonably requires to gain access to any and all such
information.
Survival
4.3 The
covenants set forth in this Article shall survive the Closing for the benefit
of
Sun Energy Solar and the Sun Energy Solar Shareholders.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF
THE
SUN ENERGY SOLAR SHAREHOLDERS
Representations
and Warranties
5.1 The
Sun Energy Solar Shareholders represent and warrants in all material respects
to
ACADIA, with the intent that it will rely thereon in entering into this
Agreement and in approving and completing the transactions contemplated hereby,
that:
Sun
Energy Solar - Corporate Status and Capacity
|
(a)
|
Incorporation.
Sun Energy Solar is a corporation duly incorporated and validly subsisting
under the laws of the State of Delaware, and is in good standing
with the
office of the Secretary of State for the State of
Delaware;
|
|
(b)
|
Carrying
on Business. Sun Energy Solar carries on business primarily in the
State of Florida and does not carry on any material business activity
in
any other jurisdiction. Sun Energy Solar has an office in Sarasota,
Florida and in no other locations. The nature of the Sun Energy Solar
Business does not require Sun Energy Solar to register or otherwise
be
qualified to carry on business in any other
jurisdiction;
|
|
(c)
|
Corporate
Capacity. Sun Energy Solar has the corporate power, capacity and
authority to own Sun Energy Solar Assets, to carry on the Business
of Sun
Energy Solar and to enter into and complete this
Agreement;
|
Sun
Energy Solar - Capitalization
|
(d)
|
Authorized
Capital. The authorized capital of Sun Energy Solar consists of
1,500,000,000 shares of common stock, $.001 par value per
share;
|
|
(e)
|
Ownership
of Sun Energy Solar Shares. The issued and outstanding share capital
of Sun Energy Solar will on Closing consist of 233,940,391 common
shares (being the Sun Energy Solar Shares), which shares on Closing
shall
be validly issued and outstanding as fully paid and non-assessable
shares.
The Sun Energy Solar Shareholders will be at Closing the registered
and
beneficial owners of 127,087,130 Sun Energy Solar Shares. The Sun
Energy
Solar Shares owned by the Sun Energy Solar Shareholders, as well
as all
other outstanding Sun Energy Solar Shares, will on Closing be free
and
clear of any and all liens, charges, pledges, encumbrances, restrictions
on transfer and adverse claims
whatsoever;
|
|
(f)
|
No
Option. No person, firm or corporation has any agreement, option,
warrant, preemptive right or any other right capable of becoming
an
agreement or option for the acquisition of Sun Energy Solar Shares
held by
the Sun Energy Solar Shareholders or for the purchase, subscription
or
issuance of any of the unissued shares in the capital of Sun Energy
Solar;
|
|
(g)
|
No
Restrictions. There are no restrictions on the transfer, sale or other
disposition of Sun Energy Solar Shares contained in the charter documents
of Sun Energy Solar or under any
agreement;
|
Sun
Energy Solar - Records and Financial Statements
|
(h)
|
Charter
Documents. The charter documents of Sun Energy Solar have not been
altered since its incorporation date, except as filed in the record
books
of Sun Energy Solar;
|
|
(i)
|
Corporate
Minute Books. The corporate minute books of Sun Energy Solar are
complete and each of the minutes contained therein accurately reflect
the
actions that were taken at a duly called and held meeting or by consent
without a meeting. All actions by Sun Energy Solar which required
director
or shareholder approval are reflected on the corporate minute books
of Sun
Energy Solar. Sun Energy Solar is not in violation or breach of,
or in
default with respect to, any term of its Certificates of Incorporation
(or
other charter documents) or
by-laws.
|
|
(j)
|
Sun
Energy Solar Financial Statements. The Sun Energy Solar Financial
Statements present fairly, in all material respects, the assets and
liabilities (whether accrued, absolute, contingent or otherwise)
of Sun
Energy Solar, on consolidated basis, as of the respective dates thereof,
and the sales and earnings of the Sun Energy Solar Business during
the
periods covered thereby, in all material respects, and have been
prepared
in substantial accordance with generally accepted accounting principles
consistently applied;
|
|
(k)
|
Sun
Energy Solar Accounts Payable and Liabilities. There are no material
liabilities, contingent or otherwise, of Sun Energy Solar which are
not
disclosed in Schedule “K” hereto or reflected in the Sun Energy Solar
Financial Statements except those incurred in the ordinary course
of
business since the date of the said schedule and the Sun Energy Solar
Financial Statements, and Sun Energy Solar has not guaranteed or
agreed to
guarantee any debt, liability or other obligation of any person,
firm or
corporation. Without limiting the generality of the foregoing, all
accounts payable and liabilities of Sun Energy Solar as of October
31,
2007 are described in Schedule “C”
hereto;
|
|
(l)
|
Sun
Energy Solar Accounts Receivable. All Sun Energy Solar Accounts
Receivable result from bona fide business transactions and services
actually rendered without, to the knowledge and belief of Sun Energy
Solar, any claim by the obligor for set-off or
counterclaim;
|
|
(m)
|
Sun
Energy Solar Bank Accounts. All of the Sun Energy Solar Bank Accounts,
their location, numbers and the authorized signatories thereto are
as set
forth in Schedule “C” hereto;
|
|
(n)
|
No
Debt to Related Parties. Except as disclosed in Schedule “C” hereto,
Sun Energy Solar is not, and on Closing will not be, materially indebted
to the Sun Energy Solar Shareholders nor to any family member thereof,
nor
to any affiliate, director or officer of Sun Energy Solar or the
Sun
Energy Solar Shareholders except accounts payable on account of bona
fide
business transactions of Sun Energy Solar incurred in normal course
of Sun
Energy Solar Business, including employment agreements with the Sun
Energy
Solar Shareholders, none of which are more than 30 days in
arrears;
|
|
(o)
|
No
Related Party Debt to Sun Energy Solar. Neither the Sun Energy Solar
Shareholders nor any director, officer or affiliate of Sun Energy
Solar
are now indebted to or under any financial obligation to Sun Energy
Solar
on any account whatsoever, except for advances on account of travel
and
other expenses not exceeding $5,000 in
total;
|
|
(p)
|
No
Dividends. No dividends or other distributions on any shares in the
capital of Sun Energy Solar have been made, declared or authorized
since
the date of the Sun Energy Solar Financial
Statements;
|
|
(q)
|
No
Payments. No payments of any kind have been made or authorized since
the date of the Sun Energy Solar Financial Statements to or on behalf
of
the Sun Energy Solar Shareholders or to or on behalf of officers,
directors, shareholders or employees of Sun Energy Solar or under
any
management agreements with Sun Energy Solar, except payments made
in the
ordinary course of business and at the regular rates of salary or
other
remuneration payable to them;
|
|
(r)
|
No
Pension Plans. There are no pension, profit sharing, group insurance
or similar plans or other deferred compensation plans affecting Sun
Energy
Solar;
|
|
(s)
|
No
Adverse Events. Since the date of the Sun Energy Solar Financial
Statements:
|
|
(i)
|
there
has not been any material adverse change in the consolidated financial
position or condition of Sun Energy Solar, its liabilities or the
Sun
Energy Solar Assets or any damage, loss or other change in circumstances
materially affecting Sun Energy Solar, the Sun Energy Solar Business
or
the Sun Energy Solar Assets or Sun Energy Solar’s right to carry on the
Sun Energy Solar Business, other than changes in the ordinary course
of
business,
|
|
(ii)
|
there
has not been any damage, destruction, loss or other event (whether
or not
covered by insurance) materially and adversely affecting Sun Energy
Solar,
the Sun Energy Solar Business or the Sun Energy Solar
Assets,
|
|
(iii)
|
there
has not been any material increase in the compensation payable or
to
become payable by Sun Energy Solar to the Sun Energy Solar Shareholders
or
to any of Sun Energy Solar's officers, employees or agents or any
bonus,
payment or arrangement made to or with any of
them,
|
|
(iv)
|
the
Sun Energy Solar Business has been and continues to be carried on
in the
ordinary course,
|
|
(v)
|
Sun
Energy Solar has not waived or surrendered any right of material
value,
|
|
(vi)
|
Sun
Energy Solar has not discharged or satisfied or paid any lien or
encumbrance or obligation or liability other than current liabilities
in
the ordinary course of business,
and
|
|
(vii)
|
no
capital expenditures in excess of $10,000 individually or $30,000
in total
have been authorized or made;
|
Sun
Energy Solar - Income Tax Matters
|
(t)
|
Tax
Returns. All tax returns and reports of Sun Energy Solar required by
law to be filed have been filed and are true, complete and correct,
and
any taxes payable in accordance with any return filed by Sun Energy
Solar
or in accordance with any notice of assessment or reassessment issued
by
any taxing authority have been so
paid;
|
|
(u)
|
Current
Taxes. Adequate provisions have been made for taxes payable for the
current period for which tax returns are not yet required to be filed
and
there are no agreements, waivers, or other arrangements providing
for an
extension of time with respect to the filing of any tax return by,
or
payment of, any tax, governmental charge or deficiency by Sun Energy
Solar. Sun Energy Solar is not aware of any contingent tax liabilities
or
any grounds which would prompt a reassessment including aggressive
treatment of income and expenses in filing earlier tax
returns;
|
Sun
Energy Solar - Applicable Laws and Legal Matters
|
(v)
|
Licenses.
Sun Energy Solar holds all licenses and permits as may be requisite
for
carrying on the Sun Energy Solar Business in the manner in which
it has
heretofore been carried on, which licenses and permits have been
maintained and continue to be in good standing except where the failure
to
obtain or maintain such licenses or permits would not have a material
adverse effect on the Sun Energy Solar
Business;
|
|
(w)
|
Applicable
Laws. Sun Energy Solar has not been charged with or received notice
of
breach of any laws, ordinances, statutes, regulations, by-laws, orders
or
decrees to which it is subject or which applies to it the violation
of
which would have a material adverse effect on the Sun Energy Solar
Business, and, to Sun Energy Solar’s knowledge, Sun Energy Solar is not in
breach of any laws, ordinances, statutes, regulations, by-laws, orders
or
decrees the contravention of which would result in a material adverse
impact on the Sun Energy Solar
Business;
|
|
(x)
|
Pending
or Threatened Litigation. There is no material litigation or
administrative or governmental proceeding pending or threatened against
or
relating to Sun Energy Solar, the Sun Energy Solar Business, or any
of the
Sun Energy Solar Assets, nor does Sun Energy Solar have any knowledge
of
any deliberate act or omission of Sun Energy Solar that would form
any
material basis for any such action or
proceeding;
|
|
(y)
|
No
Bankruptcy. Sun Energy Solar has not made any voluntary assignment or
proposal under applicable laws relating to insolvency and bankruptcy
and
no bankruptcy petition has been filed or presented against Sun Energy
Solar and no order has been made or a resolution passed for the
winding-up, dissolution or liquidation of Sun Energy
Solar;
|
|
(z)
|
Labor
Matters. Sun Energy Solar is not a party to any collective agreement
relating to the Sun Energy Solar Business with any labor union or
other
association of employees and no part of the Sun Energy Solar Business
has
been certified as a unit appropriate for collective bargaining or,
to the
knowledge of Sun Energy Solar, has made any attempt in that regard
and Sun
Energy Solar has no reason to believe that any current employees
will
leave Sun Energy Solar's employ as a result of this
Merger.
|
|
(aa)
|
Finder's
Fees. Sun Energy Solar is not a party to any agreement which provides
for the payment of finder's fees, brokerage fees, commissions or
other
fees or amounts which are or may become payable to any third party
in
connection with the execution and delivery of this Agreement and
the
transactions contemplated herein;
|
Execution
and Performance of Agreement
|
(bb)
|
Authorization
and Enforceability. The execution and delivery of this Agreement, and
the completion of the transactions contemplated hereby, have been
duly and
validly authorized by all necessary corporate action on the part
of Sun
Energy Solar;
|
|
(cc)
|
No
Violation or Breach. The execution and performance of this Agreement
will not
|
|
(i)
|
violate
the charter documents of Sun Energy Solar or result in any breach
of, or
default under, any loan agreement, mortgage, deed of trust, or any
other
agreement to which Sun Energy Solar is a
party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement including,
without limitation, Sun Energy Solar Material Contracts, or any right
or
rights enjoyed by Sun Energy Solar,
|
|
(iii)
|
result
in any alteration of Sun Energy Solar's obligations under any agreement
to
which Sun Energy Solar is a party including, without limitation,
the Sun
Energy Solar Material Contracts,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
Sun
Energy Solar Assets,
|
|
(v)
|
result
in the imposition of any tax liability to Sun Energy Solar relating
to Sun
Energy Solar Assets or the Sun Energy Solar Shares,
or
|
|
(vi)
|
violate
any court order or decree to which either Sun Energy Solar is
subject;
|
Sun
Energy Solar Assets - Ownership and Condition
|
(dd)
|
Business
Assets. The Sun Energy Solar Assets comprise all of the property and
assets of the Sun Energy Solar Business, and neither the Sun Energy
Solar
Shareholders nor any other person, firm or corporation owns any assets
used by Sun Energy Solar in operating the Sun Energy Solar Business,
whether under a lease, rental agreement or other arrangement, other
than
as disclosed in Schedules “C” or “D”
hereto;
|
|
(ee)
|
Title.
Sun Energy Solar is the legal and beneficial owner of the Sun Energy
Solar
Assets, free and clear of all mortgages, liens, charges, pledges,
security
interests, encumbrances or other claims whatsoever, save and except
as
disclosed in Schedules “C” or “D”
hereto;
|
|
(ff)
|
No
Option. No person, firm or corporation has any agreement or option
or
a right capable of becoming an agreement for the purchase of any
of the
Sun Energy Solar Assets;
|
|
(gg)
|
Sun
Energy Solar Insurance Policies. Sun Energy Solar maintains the public
liability insurance and insurance against loss or damage to the Sun
Energy
Solar Assets and the Sun Energy Solar Business as described in Schedule
“C” or “D” hereto;
|
|
(hh)
|
Sun
Energy Solar Material Contracts. The Sun Energy Solar Material
Contracts listed in Schedule “C” or “D” constitute all of the material
contracts of Sun Energy Solar;
|
|
(ii)
|
No
Default. There has not been any default in any material obligation of
Sun Energy Solar or any other party to be performed under any of
Sun
Energy Solar Material Contracts, each of which is in good standing
and in
full force and effect and unamended (except as disclosed in Schedule
“R”),
and Sun Energy Solar is not aware of any default in the obligations
of any
other party to any of the Sun Energy Solar Material
Contracts;
|
|
(jj)
|
Reserved.;
|
Sun
Energy Solar Assets - Sun Energy Solar Equipment
|
(kk)
|
Sun
Energy Solar Equipment. The Sun Energy Solar Equipment has been
maintained in a manner consistent with that of a reasonably prudent
owner
and such equipment is in good working
condition;
|
Sun
Energy Solar Assets - Sun Energy Solar Goodwill and Other
Assets
|
(ll)
|
Sun
Energy Solar Goodwill. Sun Energy Solar carries on the Sun Energy
Solar Business only under the name "Sun Energy Solar Incorporated"
and
variations thereof and under no other business or trade names. Sun
Energy
Solar does not have any knowledge of any infringement by Sun Energy
Solar
of any patent, trademark, copyright or trade
secret;
|
The
Business of Sun Energy Solar
|
(mm)
|
Maintenance
of Business. Since the date of the Sun Energy Solar Financial
Statements, the Sun Energy Solar Business has been carried on in
the
ordinary course and Sun Energy Solar has not entered into any material
agreement or commitment except in the ordinary course;
and
|
|
(nn)
|
Subsidiaries.
Sun Energy Solar does not own any subsidiaries and does not otherwise
own,
directly or indirectly, any shares or interest in any other corporation,
partnership, joint venture or firm and Sun Energy Solar does not
own any
subsidiary and does not otherwise own, directly or indirectly, any
shares
or interest in any other corporation, partnership, joint venture
or
firm.
|
Non-Merger
and Survival
5.2 The
representations and warranties of the Sun Energy Solar Shareholders contained
herein will be true at and as of Closing in all material respects as though
such
representations and warranties were made as of such
time. Notwithstanding the completion of the transactions contemplated
hereby, the waiver of any condition contained herein (unless such waiver
expressly releases a party from any such representation or warranty) or any
investigation made by ACADIA, the representations and warranties of the Sun
Energy Solar Shareholders shall survive the Closing.
Indemnity
5.3 The
Sun Energy Solar Shareholders agrees to indemnify and save harmless ACADIA
from
and against any and all claims, demands, actions, suits, proceedings,
assessments, judgments, damages, costs, losses and expenses, including any
payment made in good faith in settlement of any claim (subject to the right
of
the Sun Energy Solar Shareholders to defend any such claim), resulting from
the
breach by any of them of any representation or warranty of such party made
under
this Agreement or from any misrepresentation in or omission from any certificate
or other instrument furnished or to be furnished by the Sun Energy Solar
Shareholders to ACADIA hereunder.
ARTICLE
6
COVENANTS
OF SUN ENERGY SOLAR AND
THE
SUN ENERGY SOLAR SHAREHOLDERS
Covenants
6.1 Sun
Energy Solar and the Sun Energy Solar Shareholders covenant and agree with
ACADIA that they will:
|
(a)
|
Conduct
of Business. Until the Closing, conduct the Sun Energy Solar Business
diligently and in the ordinary course consistent with the manner
in which
the Sun Energy Solar Business generally has been operated up to the
date
of execution of this Agreement;
|
|
(b)
|
Preservation
of Business. Until the Closing, use their best efforts to
preserve the Sun Energy Solar Business and the Sun Energy Solar Assets
and, without limitation, preserve for ACADIA Sun Energy Solar’s
relationships with their suppliers, customers and others having business
relations with them;
|
|
(c)
|
Access.
Until the Closing, give ACADIA and its representatives full access
to all
of the properties, books, contracts, commitments and records of Sun
Energy
Solar relating to Sun Energy Solar, the Sun Energy Solar Business
and the
Sun Energy Solar Assets, and furnish to ACADIA and its representatives
all
such information as they may reasonably
request;
|
|
(d)
|
Procure
Consents. Until the Closing, take all reasonable steps required to
obtain, prior to Closing, any and all third party consents required
to
permit the Merger and to preserve and maintain the Sun Energy Solar
Assets, including the Sun Energy Solar Material Contracts, notwithstanding
the change in control of Sun Energy Solar arising from the
Merger;
|
|
(e)
|
Reporting
and Internal Controls. From and after the Effective Time, the Sun
Energy Solar Shareholders shall forthwith take all required actions
to
implement internal controls on the business of the Surviving Company
to
ensure that the Surviving Company and ACADIA comply with Section
13(b)(2)
of the Securities and Exchange Act of 1934;
and
|
|
(f)
|
Audited
Financial Statements. Immediately upon execution of this
Agreement, cause to be prepared audited financial statements of Sun
Energy
Solar in compliance with the requirements of Regulation SB as promulgated
by the Securities and Exchange Commission, such audited financial
statements to be provided no later than the Closing
Date.
|
Authorization
6.2 Sun
Energy Solar hereby agrees to authorize and direct any and all federal, state,
municipal, foreign and international governments and regulatory authorities
having jurisdiction respecting Sun Energy Solar to release any and all
information in their possession respecting Sun Energy Solar to
ACADIA. Sun Energy Solar shall promptly execute and deliver to ACADIA
any and all consents to the release of information and specific authorizations
which ACADIA reasonably require to gain access to any and all such
information.
Survival
6.3 The
covenants set forth in this Article shall survive the Closing for the benefit
of
ACADIA.
ARTICLE
7
CONDITIONS
PRECEDENT
Conditions
Precedent in favor of ACADIA
7.1 ACADIA’s
obligations to carry out the transactions contemplated hereby are subject to
the
fulfillment of each of the following conditions precedent on or before the
Closing:
|
(a)
|
all
documents or copies of documents required to be executed and delivered
to
ACADIA hereunder will have been so executed and
delivered;
|
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by Sun Energy Solar or the Sun Energy Solar Shareholders
at or prior to the Closing will have been complied with or
performed;
|
|
(c)
|
ACADIA
shall have completed its review and inspection of the books and records
of
Sun Energy Solar and shall be satisfied with same in all material
respects;
|
|
(d)
|
title
to the Sun Energy Solar Shares held by the Sun Energy Solar Shareholders
and to the Sun Energy Solar Assets will be free and clear of all
mortgages, liens, charges, pledges, security interests, encumbrances
or
other claims whatsoever, save and except as disclosed
herein;
|
|
(e)
|
the
Certificate of Merger shall be executed by Sun Energy Solar in form
acceptable for filing with the Delaware Secretary of
State;
|
|
(f)
|
subject
to Article 8 hereof, there will not have
occurred
|
|
(i)
|
any
material adverse change in the financial position or condition of
Sun
Energy Solar, its liabilities or the Sun Energy Solar Assets or any
damage, loss or other change in circumstances materially and adversely
affecting the Sun Energy Solar Business or the Sun Energy Solar Assets
or
Sun Energy Solar's right to carry on the Sun Energy Solar Business,
other
than changes in the ordinary course of business, none of which has
been
materially adverse, or
|
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any
laws or
statutes applicable to Sun Energy Solar or the Sun Energy Solar Business
(whether or not covered by insurance) materially and adversely affecting
Sun Energy Solar, the Sun Energy Solar Business or the Sun Energy
Solar
Assets; and
|
|
(g)
|
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any.
|
Waiver
by ACADIA
7.2 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of ACADIA and any such condition may be waived in whole or
in
part by ACADIA at or prior to Closing by delivering to Sun Energy Solar a
written waiver to that effect signed by ACADIA. In the event that the conditions
precedent set out in the preceding section are not satisfied on or before the
Closing, ACADIA shall be released from all obligations under this
Agreement.
Conditions
Precedent in Favor of Sun Energy Solar and the Sun Energy Solar
Shareholders
7.3 The
obligation of Sun Energy Solar and the Sun Energy Solar Shareholders to carry
out the transactions contemplated hereby is subject to the fulfillment of each
of the following conditions precedent on or before the Closing:
|
(a)
|
all
documents or copies of documents required to be executed and delivered
to
Sun Energy Solar hereunder will have been so executed and
delivered;
|
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by ACADIA at or prior to the Closing will have
been
complied with or performed;
|
|
(c)
|
Sun
Energy Solar shall have completed its review and inspection of the
books
and records of ACADIA and its subsidiaries and shall be satisfied
with
same in all material respects;
|
|
(d)
|
ACADIA
will have delivered the Acquisition Shares to be issued pursuant
to the
terms of the Merger to Sun Energy Solar at the Closing and the Acquisition
Shares will be registered on the books of ACADIA in the name of the
holder
of Sun Energy Solar Shares at the Effective
Time;
|
|
(e)
|
title
to the Acquisition Shares will be free and clear of all mortgages,
liens,
charges, pledges, security interests, encumbrances or other claims
whatsoever;
|
|
(f)
|
the
Certificate of Merger shall be executed by the Acquirer in form acceptable
for filing with the Delaware Secretary of
State;
|
|
(g)
|
subject
to Article 8 hereof, there will not have
occurred
|
|
(i)
|
any
material adverse change in the financial position or condition of
ACADIA,
its subsidiaries, their liabilities or the ACADIA Assets or any damage,
loss or other change in circumstances materially and adversely affecting
ACADIA, the ACADIA Business or the ACADIA Assets or ACADIA’ right to carry
on the ACADIA Business, other than changes in the ordinary course
of
business, none of which has been materially adverse,
or
|
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any
laws or
statutes applicable to ACADIA or the ACADIA Business (whether or
not
covered by insurance) materially and adversely affecting ACADIA,
its
subsidiaries, the ACADIA Business or the ACADIA Assets;
and
|
|
(h)
|
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any.
|
Waiver
by Sun Energy Solar and the Sun Energy Solar Shareholders
7.4 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of Sun Energy Solar and the Sun Energy Solar Shareholders
and
any such condition may be waived in whole or in part by Sun Energy Solar or
the
Sun Energy Solar Shareholders at or prior to the Closing by delivering to ACADIA
a written waiver to that effect signed by Sun Energy Solar and the Sun Energy
Solar Shareholders. In the event that the conditions precedent set out in the
preceding section are not satisfied on or before the Closing Sun Energy Solar
and the Sun Energy Solar Shareholders shall be released from all obligations
under this Agreement.
Nature
of Conditions Precedent
7.5 The
conditions precedent set forth in this Article are conditions of completion
of
the transactions contemplated by this Agreement and are not conditions precedent
to the existence of a binding agreement. Each party acknowledges receipt of
the
sum of $1.00 and other good and valuable consideration as separate and distinct
consideration for agreeing to the conditions of precedent in favor of the other
party or parties set forth in this Article.
Termination
7.6 Notwithstanding
any provision herein to the contrary, if the Closing does not occur on or before
December 1, 2007, this Agreement will be at an end and will have no further
force or effect, unless otherwise agreed upon by the parties in
writing.
Confidentiality
7.7 Notwithstanding
any provision herein to the contrary, the parties hereto agree that the
existence and terms of this Agreement are confidential and that if this
Agreement is terminated pursuant to the preceding section the parties agree
to
return to one another any and all financial, technical and business documents
delivered to the other party or parties in connection with the negotiation
and
execution of this Agreement and shall keep the terms of this Agreement and
all
information and documents received from Sun Energy Solar and ACADIA and the
contents thereof confidential and not utilize nor reveal or release same,
provided, however, that ACADIA will be required to issue news releases regarding
the execution and consummation of this Agreement and file a Current Report
on
Form 8-K with the Securities and Exchange Commission respecting the proposed
Merger contemplated hereby together with such other documents as are required
to
maintain the currency of ACADIA’ filings with the Securities and Exchange
Commission.
ARTICLE
8
RISK
Material
Change in the Business of Sun Energy Solar
8.1 If
any material loss or damage to the Sun Energy Solar Business occurs prior to
Closing and such loss or damage, in ACADIA's reasonable opinion, cannot be
substantially repaired or replaced within sixty (60) days, ACADIA shall, within
two (2) days following any such loss or damage, by notice in writing to Sun
Energy Solar, at its option, either:
|
(a)
|
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
|
(b)
|
elect
to complete the Merger and the other transactions contemplated hereby,
in
which case the proceeds and the rights to receive the proceeds of
all
insurance covering such loss or damage will, as a condition precedent
to
ACADIA' obligations to carry out the transactions contemplated hereby,
be
vested in Sun Energy Solar or otherwise adequately secured to the
satisfaction of ACADIA on or before the Closing
Date.
|
Material
Change in the ACADIA Business
8.2 If
any material loss or damage to the ACADIA Business occurs prior to Closing
and
such loss or damage, in Sun Energy Solar's reasonable opinion, cannot be
substantially repaired or replaced within sixty (60) days, Sun Energy Solar
shall, within two (2) days following any such loss or damage, by notice in
writing to ACADIA, at its option, either:
|
(a)
|
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
|
(b)
|
elect
to complete the Merger and the other transactions contemplated hereby,
in
which case the proceeds and the rights to receive the proceeds of
all
insurance covering such loss or damage will, as a condition precedent
to
Sun Energy Solar's obligations to carry out the transactions contemplated
hereby, be vested in ACADIA or otherwise adequately secured to the
satisfaction of Sun Energy Solar on or before the Closing
Date.
|
ARTICLE
9
CLOSING
Closing
9.1 The
Merger and the other transactions contemplated by this Agreement will be closed
at the Place of Closing in accordance with the closing procedure set out in
this
Article.
Documents
to be Delivered by Sun Energy Solar
9.2 On
or before the Closing, Sun Energy Solar and the Sun Energy Solar Shareholders
will deliver or cause to be delivered to ACADIA:
|
(a)
|
the
original or certified copies of the charter documents of Sun Energy
Solar
and all corporate records documents and instruments of Sun Energy
Solar,
the corporate seal of Sun Energy Solar and all books and accounts
of Sun
Energy Solar;
|
|
(b)
|
all
reasonable consents or approvals required to be obtained by Sun Energy
Solar for the purposes of completing the Merger and preserving and
maintaining the interests of Sun Energy Solar under any and all Sun
Energy
Solar Material Contracts and in relation to Sun Energy Solar
Assets;
|
|
(c)
|
certified
copies of such resolutions of the shareholder and director of Sun
Energy
Solar as are required to be passed to authorize the execution, delivery
and implementation of this
Agreement;
|
|
(d)
|
an
acknowledgement from Sun Energy Solar and the Sun Energy Solar
Shareholders of the satisfaction of the conditions precedent set
forth in
section 7.3 hereof;
|
|
(e)
|
the
Certificate of Merger, duly executed by Sun Energy Solar;
and
|
|
(f)
|
such
other documents as ACADIA may reasonably require to give effect to
the
terms and intention of this
Agreement.
|
Documents
to be Delivered by ACADIA
9.3 On
or before the Closing, ACADIA shall deliver or cause to be delivered to Sun
Energy Solar and the Sun Energy Solar Shareholders:
|
(a)
|
share
certificates representing the Acquisition Shares duly registered
in the
names of the holders of shares of Sun Energy Solar Common
Stock;
|
|
(b)
|
certified
copies of such resolutions of the directors of ACADIA as are required
to
be passed to authorize the execution, delivery and implementation
of this
Agreement, together with the appointment of Xxxx X. Xxxxx III as
a member
of the Board of Directors of
ACADIA;
|
|
(c)
|
a
certified copy of a resolution of the directors of ACADIA dated as
of the
Closing Date appointing the nominees of Sun Energy Solar as officers
of
Sun Energy Solar;
|
|
(d)
|
an
acknowledgement from ACADIA of the satisfaction of the conditions
precedent set forth in section 7.1
hereof;
|
|
(e)
|
Reserved;
|
|
(f)
|
the
Certificate of Merger, duly executed by the Acquirer;
and
|
|
(g)
|
such
other documents as Sun Energy Solar may reasonably require to give
effect
to the terms and intention of this
Agreement.
|
ARTICLE
10
POST-CLOSING
MATTERS
Forthwith
after the
Closing, ACADIA, Sun Energy Solar and the Sun Energy Solar Shareholders agree
to
use all their best efforts to:
|
(a)
|
file
the Certificate of Merger with Secretary of State of the State of
Delaware;
|
|
(b)
|
issue
a news release reporting the
Closing;
|
|
(c)
|
file
a Form 8-K with the Securities and Exchange Commission disclosing
the
terms of this Agreement and which includes audited financial statements
of
Sun Energy Solar as well as pro forma financial information of Sun
Energy
Solar and ACADIA as required by Regulation SB as promulgated by the
Securities and Exchange Commission;
and
|
|
(d)
|
file
reports on Forms 13D and 3 with the Securities and Exchange Commission
disclosing the acquisition of the Acquisition Shares by the Sun Energy
Solar Shareholders.
|
ARTICLE
11
GENERAL
PROVISIONS
Arbitration
11.1 The
parties hereto shall attempt to resolve any dispute, controversy, difference
or
claim arising out of or relating to this Agreement by negotiation in good
faith. If such good negotiation fails to resolve such dispute,
controversy, difference or claim within fifteen (15) days after any party
delivers to any other party a notice of its intent to submit such matter to
arbitration, then any party to such dispute, controversy, difference or claim
may submit such matter to arbitration in the City of New York, New
York.
Notice
11.2 Any
notice required or permitted to be given by any party will be deemed to be
given
when in writing and delivered to the address for notice of the intended
recipient by personal delivery, prepaid single certified or registered mail,
or
telecopier. Any notice delivered by mail shall be deemed to have been received
on the fourth business day after and excluding the date of mailing, except
in
the event of a disruption in regular postal service in which event such notice
shall be deemed to be delivered on the actual date of receipt. Any notice
delivered personally or by telecopier shall be deemed to have been received
on
the actual date of delivery.
Addresses
for Service
11.3 The
address for service of notice of each of the parties hereto is as
follows:
|
(a)
|
ACADIA
or the Acquirer:
|
ACADIA
International Distributors Inc.
000
XxxXxxx Xxxxx
Xxxxxx,
Xx 00000-0000
Phone: (000)
000-0000
Telecopier:
(000) 000-0000
|
(b)
|
Sun
Energy Solar or the Sun Energy Solar
Shareholders
|
Sun
Energy Solar, Inc.
0000
Xxxxxxxx Xxxxx, Xxxxx 000
Phone: (000)
000-0000
Telecopier:
(000) 000-0000
Change
of Address
11.4 Any
party may, by notice to the other parties change its address for notice to
some
other address in North America and will so change its address for notice
whenever the existing address or notice ceases to be adequate for delivery
by
hand. A post office box may not be used as an address for service.
Further
Assurances
11.5 Each
of the parties will execute and deliver such further and other documents and
do
and perform such further and other acts as any other party may reasonably
require to carry out and give effect to the terms and intention of this
Agreement.
Time
of the Essence
11.6 Time
is expressly declared to be the essence of this Agreement.
Entire
Agreement
11.7 The
provisions contained herein constitute the entire agreement among Sun Energy
Solar, the Sun Energy Solar Shareholders, the Acquirer and ACADIA respecting
the
subject matter hereof and supersede all previous communications, representations
and agreements, whether verbal or written, among Sun Energy Solar, the Sun
Energy Solar Shareholders, the Acquirer and ACADIA with respect to the subject
matter hereof.
Enurement
11.8 This
Agreement will enure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
Assignment
11.9 This
Agreement is not assignable without the prior written consent of the parties
hereto.
Counterparts
11.10 This
Agreement may be executed in counterparts, each of which when executed by any
party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies
of
this Agreement by telecopier will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
Applicable
Law
11.11 This
Agreement is subject to the laws of the State of New York.
IN
WITNESS WHEREOF the parties have executed this Agreement effective as
of the day and year first above written.
ACADIA RESOURCES INC.
___________________________________
By:_____________________
Witness
Xxxx X. Xxxxx, III, Presiden
___________________________________
Name
Name
___________________________________
Address
Address
SUNOVIA
SOLAR, INC.
___________________________________
By:_______________________
Witness
Xxxx X. Xxxxx, III, President
___________________________________
Name
Name
___________________________________
Address
Address
SUN ENERGY SOLAR, INC.
___________________________________
By:___________________
Witness
Xxxxxxx Xxxx,
Chief
Financial
Officer
___________________________________
Name
___________________________________
Address
SUN
ENERGY SOLAR, INC. SHAREHOLDERS
___________________________________ ___________________________________________
Witness Xxxx
X. Xxxxx III
___________________________________ No.
of Shares of
Name Common
Stock: 90,465,000
___________________________________
Address
______________________________ ___________________________________
Witness
Name: Xxxxxxx Xxxxx Xxxx
No. of Shares
______________________________
of Common Stock:
17,659,667
Name
______________________________
Address
______________________________ ___________________________________
Witness
Name: Xxxx St. Xxxxxx
No. of Shares
______________________________
of Common Stock:
18,962,463
Name
______________________________
|
Schedule
“A”
|
Acadia
Form 10-KSB as filed with the Securities and Exchange Commission
on
October 19, 2007
|
|
Schedule
“B”
|
Settlement
Agreement by and between Acadia and Xxxxx
Xxxxxxx
|
|
Schedule
“C”
|
Unaudited
Financial Statements of Sun Energy Solar as of October 31,
2007
|
|
Schedule
“D”
|
Audited
Consolidated Financial Statements for the Period from Inception (November
9, 2005) through July 31, 206 and the year ended July 31,
2007
|
