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Exhibit 6.0
Merger Agreement and Plan of Acquisition and Reorganization
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MERGER AGREEMENT
AND
PLAN OF ACQUISITION AND REORGANIZATION
THIS MERGER AGREEMENT AND PLAN OF ACQUISITION AND REORGANIZATION,
(hereinafter referred to as the "Agreement") is made and entered into this 5th
day of February 1999 by and between All American Consultant Aircraft, Inc., a
Texas corporation (hereinafter referred to as "All American"), ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Corp., a Delaware corporation (hereinafter referred to as "Acquisition") and
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corp., a New York corporation (hereinafter referred to as
"MarketCentral").
RECITALS
WHEREAS, All American and MarketCentral desire to merge MarketCentral
with and into All American s wholly-owned subsidiary, Acquisition, whereby
Acquisition shall be the surviving entity pursuant to the terms and conditions
set forth herein and whereby the transaction shall qualify as a tax free
exchange pursuant to Section 351 of the Internal Revenue Code ("IRC");
WHEREAS, the shareholders of MarketCentral desire to exchange all of
their shares of MarketCentral capital stock for shares of All American common
stock in the respective amounts set forth in Schedule 1.2 hereto as a tax free
exchange pursuant to Section 351 of the IRC;
WHEREAS, the parties hereto desire to reorganize, pursuant to Section
368(a)(1)(A) of the IRC, the management, operations and principal place of
business of All American and Acquisition;
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties and covenants herein contained, the parties hereby
agree as follows:
ARTICLE I
SECTION 1.1 Merger and Plan of Reorganization. The parties agree that
upon the Effective Date, as defined below, MarketCentral shall merge into
Acquisition (the "Merger"). Following the Merger, Acquisition shall continue as
the surviving corporation and the separate corporate existence of MarketCentral
shall cease. All American shall change its name to "▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corp." and
Acquisition shall remain a wholly-owned subsidiary of the renamed All American.
As consideration for their agreement to surrender their shares of MarketCentral
common stock and to approve the Merger, the shareholders of MarketCentral shall
receive an aggregate of Two Million Twenty Five Thousand (2,025,000) shares of
authorized but previously unissued All American common stock, par value $0.0001
per share, on a pro rata basis. The parties hereto hereby further agree that as
promptly as practicable after the Closing, the necessary steps shall be taken in
order to reflect the relocation of Acquisition s principal place of business to
MarketCentral facility in New York, New York; and the management and operations
of Acquisition will be reorganized to become engaged in the current business
endeavors of MarketCentral.
SECTION 1.2 Issuance of Shares.
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(a) Upon the Closing of this Agreement, All American shall cause to be
issued and delivered to the shareholders of MarketCentral or their designees,
stock certificates evidencing ownership for an aggregate of 2,025,000 authorized
but previously unissued shares of All American common stock, par value $0.000l
per share (the "All American Shares"). The All American Shares shall be issued
to the individual MarketCentral shareholders on a 1012.50 for 1 basis, in the
amounts set forth in Schedule 1.2 hereto.
(b) The All American Shares to be issued hereunder are deemed
"restricted securities" as defined by Rule 144 promulgated by the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), and the recipients shall represent that they are
acquiring the All American Shares for investment purposes only and without the
intent to make a further distribution of the All American Shares. All All
American Shares to be issued under the terms of this Agreement shall be issued
pursuant to exemptions from the registration requirements of the Securities Act
and the rules and regulations promulgated thereunder. Certificates representing
the restricted All American Shares shall bear the following, or similar legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH
ACT OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION
PROVISIONS, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO
THE SATISFACTION OF THE COMPANY.
SECTION 1.3 Consent of Shareholders and Directors. In anticipation of
this Agreement and as a condition precedent to the consummation of the Merger,
All American shall have obtained a written consent of its shareholders owning at
least 51% of the issued and outstanding shares of the common stock of All
American at the time of voting in accordance with Article VII of the Articles of
Incorporation and Article 9.10 of the Texas Business Corporation Act and have
taken all necessary and requisite action to obtain the consent of its
Shareholders and Directors in order to transact the following business:
(i) To ratify this Agreement, the Merger, and all transactions
contemplated hereby;
(ii) To consider and vote upon a proposal to amend the Articles of
Incorporation of All American to change its name to "▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corp." or
to a similar name to be approved by the shareholders, in order to more
accurately describe the new business of the Company;
(iii) To accept the resignations of the current Board of Directors of
All American and to elect three (3) directors, two (2) of whom are currently
directors of MarketCentral, to serve until the next Annual Meeting of
Shareholders or until their successors are elected and qualified;
(iv) To engage Meridian Mercantile, Inc. ("MM") to raise a minimum of
US $3 million of capital following the Merger through either a private placement
or public offering, with a maximum dilution of 15% to the post-Merger
shareholders of All American. Specific terms of the private placement or public
offering will be set forth in a more definitive Placement Agency Agreement or
Underwriting Agreement to be furnished to and accepted by the Board of Directors
of All American following the Merger;
(v) To consider and vote upon the proposal to ratify the subscriptions
of MM to purchase an aggregate of up to 56,014 shares of All American Common
Stock over a 24 month period at a purchase price of $5.57 per share pursuant to
the terms of a Subscription Agreement (the "MM Subscription Agreement") in the
form annexed hereto as Exhibit 1.3(v);
(vi) To consider and vote upon the proposal relating to the granting of
an aggregate of 400,000 five-year options to purchase All American Common Stock
at an exercise price equal to $5.00 (which represents the closing bid price per
share of the All American Common Stock immediately prior to the date hereof)
Closing Date (as hereinafter defined) in favor of certain persons as set forth
on Schedule 1.3 (vi) hereto; and
(vii) To consider and vote upon any and all other business that may
properly come before the Shareholder Meeting.
SECTION 1.4 Closing. Subject to all of the conditions precedent
contained herein, the Closing shall occur on or before March 5, 1999 (the date
of such Closing being referred to herein as the "Closing Date"), unless such
date shall be extended by the mutual consent of All American and MarketCentral.
At the Closing:
(i) All American and Acquisition shall deliver an Officer s Certificate
as described in Sections 9.1 and 9.2 hereof, dated the Closing Date, that all
representations, warranties, covenants and conditions set forth herein by All
American and Acquisition are true and correct as of, or have been fully
performed and complied with by the Closing Date; and
(ii) MarketCentral shall deliver an Officer s Certificate as described
in Section 8.1 and 8.2 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth herein by MarketCentral are true
and correct as of, or have been, fully performed and complied with by the
Closing Date;
(iii) MarketCentral shall deliver to All American all corporate books
and records needed to effectuate the Merger;
(iv) All American shall issue or cause to be issued the All American
Shares, all of which shall bear the appropriate restrictive legend in the form
customarily used with restricted securities and as set forth in Section 1.2(c)
above;
(v) All American shall have entered into the MM Subscription Agreement
with MM and shall have funded the initial monthly installment of $13,000
pursuant to such subscription agreement;
(vi) All American's legal counsel shall have delivered its legal
opinion as to the eligibility of the existing shareholders of All American to
sell shares of Common Stock pursuant to rules and regulations of the Securities
and Exchange Commission;
(vii) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall have delivered a
personal guarantee with respect to the obligations of MM to make the monthly
subscription payments required pursuant to the terms of the MM Subscription
Agreement which guarantee shall be in form and substance reasonably acceptable
to MarketCentral and its legal counsel.
SECTION 1.5 Consummation of Transaction. If at the Closing, no
condition exists which would permit any of the parties to terminate this
Agreement, or a condition then exists and the party entitled to terminate
because of that condition elects not to do so, then the transactions herein
contemplated shall be consummated upon such date, and as soon as is practicable
thereafter, the parties shall file any additional necessary documents that may
be required by the State of New Delaware and New York to effectuate the Merger.
The Merger shall become effective on the date all necessary merger documents are
filed with the Department of State of the State of New York and the Secretary of
State of Delaware (the "Effective Date").
SECTION 1.6 Recapitalizations. Following a period of 12 months from the
Closing Date, the unanimous consent of the Board of Directors of All American
(renamed Market Central) shall be required to approve any stock splits or other
action which would have the effect of diluting the post-Merger ownership of
Common Stock, except to the extent occurring as a result of a financing
transaction pursuant to Section 1.3(iv) hereto which shall require only the
consent of the majority of directors.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF
ALL AMERICAN AND ACQUISITION
All American and Acquisition hereby represent, warrant and agree that:
SECTION 2.1 Organization of All American. All American is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Texas, is duly qualified and in good standing as a foreign corporation
in every jurisdiction in which such qualification is necessary, and has the
corporate power and authority to own its properties and assets and to transact
the business in which it is engaged. With the exception of Acquisition, there
are no corporations or other entities with respect to which (i) All American
owns any of the outstanding stock or other interests, or (ii) All American may
be deemed to be in control because of factors or relationships other than the
quantity of stock or other interests owned. All American and Acquisition have
all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This Agreement
is the legal, valid and binding obligation of All American and Acquisition,
enforceable against All American and Acquisition in accordance with its
respective terms except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency and other similar laws affecting creditors
rights generally.
Acquisition is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, is duly qualified and in
good standing as a foreign corporation in every jurisdiction in which such
qualification is necessary, and has the corporate power and authority to own its
properties and assets and to transact the business in which it is engaged. There
are no corporations or other entities with respect to which (i) Acquisition owns
any of the outstanding stock or other interests, or (ii) Acquisition may be
deemed to be in control because of factors or relationships other than the
quantity of stock or other interests owned.
SECTION 2.2 Capitalization of All American and Acquisition. The
authorized capital stock of All American consists of One Hundred Million
(100,000,000) shares of common stock, par value $0.000l per share (the "Common
Stock"), of which One Million, Nine Hundred Sixty Six Thousand and Nine Hundred
(1,966,900) shares of Common Stock are issued and outstanding. All shares of All
American common stock currently issued and outstanding have been duly authorized
and validly issued and are fully paid and non-assessable, and have been issued
in compliance with any and all applicable federal and state laws or pursuant to
appropriate exemptions therefrom. There are no options, warrants, rights, calls,
commitments or agreements of any character obligating All American to issue any
shares of its capital stock or any security representing the right to purchase
or otherwise receive any such stock, except as set forth in Schedule 2.2. The
All American Shares to be issued pursuant to this Agreement, when so issued,
will be duly authorized, validly issued, fully paid and non-assessable.
The authorized capital stock of Acquisition consists of 100 shares of
common stock, .001 par value, of which 100 shares, constituting all the issued
and outstanding shares of common stock of Acquisition, have been issued to All
American.
SECTION 2.3 Charter Documents. Certified copies of the All American and
Acquisition Certificate and Articles of Incorporation and By-Laws, as amended to
date, have been delivered to MarketCentral prior to the Closing.
SECTION 2.4 Corporate Documents. The All American shareholders list and
corporate minute books are complete and accurate as of the date hereof and the
corporate minute books contain the recorded minutes of all corporate meetings or
the written consents of shareholders and directors.
SECTION 2.5 Financial Statements. All American s audited financial
statements for the years ended December 31, 1997 and 1998, copies of which have
been delivered to MarketCentral, are true and complete in all material respects,
having been prepared in accordance with generally accepted accounting principles
applied on a consistent basis for the period covered by such statements, and
fairly present, in accordance with generally accepted accounting principles, the
financial condition of All American, and results of its operations for the
periods covered thereby. Except as otherwise disclosed to MarketCentral in
writing and as set forth herein, there has been no material adverse change in
the business operations, assets, properties, prospects or condition (financial
or otherwise) of All American taken as a whole from that reflected in the
financial statements referred to in this Section 2.5.
SECTION 2.6 Absence of Certain Changes or Events. Since the date of the
latest All American financial statement and except as disclosed in Schedule 2.6
hereto, All American has not (i) issued or sold any promissory note, stock,
bond, option or other corporate security of which it was an issuer or other
obligor, (ii) discharged or satisfied any lien or encumbrance or paid any
obligation or liability, absolute or contingent, direct or indirect, (iii)
incurred or suffered to be incurred any liability or obligation whatsoever, (iv)
cause or permitted any lien, encumbrance or security interest to be created or
arise on or in any of its properties or assets, (v) declared or made any
dividend, payment or distribution to stockholders or purchased or redeemed or
agreed to purchase or redeem any shares of its capital stock, (vi) reclassified
its shares of capital stock, or (vii) entered into any agreement or transaction
except in connection with the execution and performance of this Agreement.
SECTION 2.7 Assets and Liabilities. All American has good and
marketable title to all of its assets and property, free and clear of any and
all liens, claims and encumbrances. As of the date hereof, All American does not
have any debts, liabilities or obligations of any nature, whether accrued,
absolute, contingent, or otherwise, whether due or to become due, that are not
fully reflected in the All American financial statements.
Acquisition has no assets and no liabilities.
SECTION 2.8 Tax Returns and Payments. All of All American s tax returns
(Federal, state, city, county or foreign) which are required by law to be filed
on or before the date of this Agreement, have been duly filed or extended with
the appropriate governmental authority. All American has paid all taxes due on
said returns, any assessments made against All American and all other taxes,
fees and similar charges imposed on All American by any governmental authority
(other than those, the amount or validity of which is being contested in good
faith by appropriate proceedings). No tax liens have been filed and no claims
are being assessed with respect to any such taxes, fees or other similar
charges.
Acquisition was formed on February 3, 1999, has not filed, and has not
yet been required to file any tax return.
SECTION 2.9 Required Authorizations. There have been or will be timely
filed, given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by All American
or the consummation by it of the transactions contemplated hereby. Prior to the
Closing, the shareholders of All American and Acquisition shall have approved
this Agreement and the transactions contemplated hereunder and appropriate
corporate filings shall have been made with the States of Texas, Delaware and
New York, as required.
SECTION 2.10 Compliance with Law and Government Regulations. All
American and Acquisition are in compliance with and are not in violation of,
applicable federal, state, local or foreign statutes, laws and regulations
(including without limitation, any applicable building, zoning or other law,
ordinance or regulation) affecting its properties or the operation of its
business. All American and Acquisition are not subject to any order, decree,
judgment or other sanction of any court, administrative agency or other
tribunal.
SECTION 2.11 Litigation. Except as set forth on Schedule 2.11, there is
no litigation, arbitration, proceeding or investigation pending or threatened to
which All American or Acquisition is a party or which may result in any material
change in the business or condition, financial or otherwise, of All American or
Acquisition or in any of its properties or assets, or which might result in any
liability on the part of All American or Acquisition, or which questions the
validity of this Agreement or of any action taken or to be taken pursuant to or
in connection with the provisions of this Agreement, and to the best knowledge
of All American and Acquisition, there is no basis for any such litigation,
arbitration, proceeding or investigation.
SECTION 2.12 Trade Names and Rights. All American does not use any
trade ▇▇▇▇, service ▇▇▇▇, trade name, or copyright in its business, nor does it
own any trade marks, trade ▇▇▇▇ registrations or applications, trade names,
service marks, copyrights, copyright registrations or applications. To the
knowledge of All American and Acquisition, no person owns any trade ▇▇▇▇, trade
▇▇▇▇ registration or application, service ▇▇▇▇, trade name, copyright or
copyright registration or application, the use of which is necessary or
contemplated in connection with the operation of All American s business.
SECTION 2.13 Governmental Consent. No consent, approval, authorization
or order of, or registration, qualification, designation, declaration or filing
with, any governmental authority on the part of All American is required in
connection with the execution and delivery of this Agreement or the carrying out
of any transactions contemplated hereby with the exception of the necessary
corporate filings with the State of Texas relating to the proposed exchange of
shares.
SECTION 2.14 Authority. All American has full power, authority and
legal right to enter into this Agreement and to consummate the transactions
contemplated hereby, and all corporate action necessary to authorize the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby has been duly and validly taken. The execution
and delivery of this Agreement, the consummation of the transactions
contemplated hereby and compliance by All American with the provisions hereof
will not (a) conflict with or result in a breach of any provisions of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties or assets of
All American under, any of the terms, conditions or provisions of the Articles
of Incorporation or By-Laws of All American, or any note, bond, mortgage,
indenture, license, lease, agreement or any instrument or obligation to which
All American is a party or by which it is bound; or (b) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to All American or
any of its properties or assets.
SECTION 2.15 No Disqualifying Orders. Neither All American, Acquisition
nor any of its affiliates, directors, officers or principals is subject to any
disqualifying order under the "Bad Boy" provisions of the federal or any state s
securities law.
SECTION 2.16 Full Disclosure. None of the representations and
warranties made by All American or Acquisition herein, or in any exhibit,
certificate or memorandum furnished or to be furnished by All American or
Acquisition on its behalf pursuant hereto, contains or will contain any untrue
statement of material fact, or omits any material fact, the omission of which
would be misleading.
ARTICLE III
COVENANTS OF ALL AMERICAN AND ACQUISITION
SECTION 3.1 Conduct Prior to the Closing. Between the date hereof and
the Closing, other than actions or transactions specifically disclosed to
MarketCentral and referred to herein:
(a) All American and Acquisition will not enter into any material
agreement, contract or commitment, whether written or oral, or engage in any
transaction, without the prior written consent of MarketCentral;
(b) All American and Acquisition will not declare any dividends or
distributions with respect to its capital stock or amend its Articles of
Incorporation or By-Laws, without the prior written consent of MarketCentral;
(c) All American and Acquisition will not authorize, issue, sell,
purchase or redeem any shares of its capital stock or any options or other
rights to acquire its capital stock, without the prior written consent of
MarketCentral;
(d) All American and Acquisition will comply with all requirements
which federal or state law may impose on it with respect to this Agreement and
the transactions contemplated hereby, and will promptly cooperate with and
furnish written information to MarketCentral in connection with any such
requirements imposed upon the parties hereto in connection therewith;
(e) All American and Acquisition will not incur any indebtedness for
money borrowed, or issue or sell any debt securities, incur or suffer to be
incurred any liability or obligation of any nature whatsoever, or cause or
permit any lien, encumbrance or security interest to be created or arise on or
in any of its properties or assets, acquire or dispose of fixed assets change
employment terms, enter into any material or long-term contract, guarantee
obligations of any third party, settle or discharge any balance sheet receivable
for less than its stated amount or enter into any other transaction other than
in the regular course of business, except to comply with the terms of this
Agreement, without the prior written consent of MarketCentral.
(f) All American and Acquisition shall grant to MarketCentral and its
counsel, accountants and other representatives, full access during normal
business hours during the period to the Closing to all of its respective
properties, books, contracts, commitments and records and, during such period,
furnish promptly to MarketCentral and such representatives all information
relating to All American as MarketCentral may reasonably request, and shall
extend to MarketCentral the opportunity to meet with All American s accountants
and attorneys to discuss the financial condition of All American; and
(g) Except for the transactions contemplated by this Agreement, All
American and Acquisition will conduct its business in the normal course, and
shall not sell, pledge or assign any of its assets without the prior written
consent of MarketCentral.
SECTION 3.2 Affirmative Covenants. Prior to Closing, All American
will do the following:
(a) Use its best efforts to accomplish all actions necessary to
consummate this Agreement, including satisfaction of all conditions contained in
this Agreement;
(b) Promptly notify MarketCentral in writing of any material adverse
change in the financial condition, business, operations or key personnel of All
American or Acquisition, any threatened material litigation or investigation,
any breach of its representations or warranties contained herein, and any
material contract, agreement, license or other agreement which, if in effect on
the date of this Agreement, should have been included in this Agreement or in an
exhibit annexed hereto and made a part hereof;
(c) Obtain approval of this Agreement from its shareholders;
(d) Obtain the written resignations of its existing officers and
Directors and nominate by the consent of its shareholders a new Board of
Directors, whose nominees shall be ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇
Yakimishyn, which shall be effective upon the Closing; and
(e) Reserve, and promptly after the Closing, issue and deliver to
MarketCentral or its designees the All American Shares.
REPRESENTATIONS AND WARRANTIES OF
MARKETCENTRAL
MarketCentral hereby represents, warrants and agrees that:
SECTION 4.1 Organization of MarketCentral. MarketCentral is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York, is duly qualified or will become duly qualified and in
good standing in every jurisdiction in which such qualification is necessary.
There are no corporations or other entities with respect to which (i)
MarketCentral owns any of the outstanding stock or other interests, or (ii)
MarketCentral may be deemed to be in control because of factors or relationships
other than the quantity of stock or other interests owned in such entity.
SECTION 4.2 Capitalization. The authorized capital stock of
MarketCentral is 10,000,000 shares of common stock, par value $0.01 per share of
which 2,000 shares are issued and outstanding. All shares of MarketCentral
common stock currently issued and outstanding have been duly authorized and
validly issued and are fully paid and non-assessable, and have been issued in
compliance with any and all applicable federal and state laws or pursuant to
appropriate exemptions therefrom. There are no options, warrants, rights, calls,
commitments or agreements of any character obligating MarketCentral to issue any
shares of its capital stock or any security representing the right to purchase
or otherwise receive any such stock.
SECTION 4.3 Charter Documents. Complete and correct copies of the
Articles of Incorporation and By-Laws of MarketCentral and all amendments
thereto, have been or will be delivered to All American prior to the Closing.
SECTION 4.4 Assets and Liabilities. MarketCentral has good and
marketable title to all of its assets and property to be delivered to All
American hereunder free and clear of any and all liens, claims and encumbrances,
except as may be otherwise set forth herein and in its financial statements.
SECTION 4.5 Absence of Certain Changes or Events. Except as disclosed
otherwise herein, MarketCentral has not (i) issued or sold any promissory note,
stock, bond, option or other corporate security of which it was an issuer or
other obligor, (ii) discharged or satisfied any lien or encumbrance or paid any
obligation or liability, absolute or contingent, direct or indirect, except in
the ordinary course of its business, (iii) incurred or suffered to be incurred
any liability or obligation whatsoever, except in the ordinary course of its
business, (iv) cause or permitted any lien, encumbrance or security interest to
be created or arise on or in any of its properties or assets, (v) declared or
made any dividend, payment or distribution to stockholders or purchased or
redeemed or agreed to purchase or redeem any shares of its capital stock, (vi)
reclassified its shares of capital stock, or (vii) entered into any agreement or
transaction except in connection with the execution and performance of this
Agreement.
SECTION 4.6 Tax Returns and Payments. All of MarketCentral s tax
returns (Federal, state, city, county or foreign) which are required by law to
be filed on or before the date of this Agreement, have been duly filed or
extended with the appropriate governmental authority. MarketCentral has paid all
taxes to be due on said returns, any assessments made against MarketCentral and
all other taxes, fees and similar charges imposed on MarketCentral by any
governmental authority (other than those, the amount or validity of which is
being contested in good faith by appropriate proceedings). No tax liens have
been filed and no claims are being assessed with respect to any such taxes, fees
or other similar charges.
SECTION 4.7 Required Authorizations. There have been or will be timely
filed, given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by MarketCentral
or the consummation by it of the transactions contemplated hereby and
appropriate corporate filings shall have been made in the State of New York, as
required.
SECTION 4.8 Compliance with Law and Government Regulations.
MarketCentral is, to the best of its knowledge, in compliance with all
applicable statutes, regulations, decrees, orders, restrictions, guidelines and
standard affecting its properties and operations, imposed by the United States
of America or any state to which MarketCentral is subject, the failure to comply
with which would, either individually or in the aggregate, have a material
adverse effect on the business, finances or prospects of MarketCentral.
SECTION 4.9 Litigation. There is no litigation, arbitration, proceeding
or investigation pending or threatened to which MarketCentral is a party or
which may result in any material change in the business of condition, financial
or otherwise, of MarketCentral or in any of its properties or assets, or which
might result in any liability on the part of MarketCentral, or which questions
the validity of this Agreement or of any action taken or to be taken pursuant to
or in connection with the provisions of this Agreement, and to the best
knowledge of MarketCentral, there is no basis for any such litigation,
arbitration, proceeding or investigation.
SECTION 4.10 Patents. Trade Names and Rights. Schedule 4.10 annexed
hereto and by this reference is made a part hereof, contains a complete list of
all patents, trademarks, service marks, trade marks, service ▇▇▇▇, trademark and
service ▇▇▇▇ registrations, applications and licenses
with respect to the forgoing owned or held by MarketCentral. MarketCentral has
no knowledge of any facts and nothing has come to its attention that would lead
it to believe that it has infringed or misappropriated or is infringing upon any
trademark, copyright, patent or other similar right of any person. No claim
relating thereto is pending or to the knowledge of MarketCentral is threatened.
SECTION 4.11 Governmental Consent. No consent, approval, authorization
or order of, or registration, qualification, designation, declaration or filing
with, any governmental authority on the part of MarketCentral is required in
connection with the execution and delivery of this Agreement or the carrying out
of any transactions contemplated other than filing the Agreement together with
Articles of Merger with the State of New York.
SECTION 4.12 Authority. MarketCentral and shareholders holding of
record a majority of its issued and outstanding shares of capital stock, have
approved this Agreement and duly authorized the execution hereof. MarketCentral
has full power, authority and legal right to enter into this Agreement on behalf
of MarketCentral and its shareholders and to consummate the transactions
contemplated hereby, and all corporate action necessary to authorize the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby has been duly and validly taken. The execution
and delivery of this Agreement, the consummation of the transactions
contemplated hereby and compliance by MarketCentral with the provisions hereof
will not (a) conflict with or result in a breach of any provisions of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties or assets of
MarketCentral under, any of the terms, conditions or provisions of the Articles
of Incorporation or By-Laws of MarketCentral, or any note, bond, mortgage,
indenture, license, agreement or any instrument or obligation to which
MarketCentral is a party or by which it is bound; or (b) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to
MarketCentral or any of its properties or assets.
SECTION 4.13 Investment Purpose. MarketCentral has received or shall
receive representations from its shareholders that the recipients of the
restricted All American Shares hereunder are acquiring the shares for investment
purposes only and acknowledges that the All American Shares issued hereunder are
"restricted securities" and may not be sold, traded or otherwise transferred
without registration under the Securities Act or exemption therefrom.
SECTION 4.14 Nonexistence of Disqualifying Orders. Neither
MarketCentral nor any of its affiliates, directors, officers or principals is
subject to any disqualifying order under the "Bad Boy" provisions of the federal
or any state s securities law.
SECTION 4.15 Intentionally Omitted.
SECTION 4.16 Full Disclosure. None of the representations and
warranties made by MarketCentral herein, or in any exhibit, certificate or
memorandum furnished or to be furnished by, on its behalf pursuant hereto,
contains or will contain any untrue statement of material fact, or omits any
material fact, the omission of which would be misleading.
ARTICLE V
COVENANTS OF MARKETCENTRAL
SECTION 5.1 Conduct Prior to the Closing. Between the date hereof
and the Closing:
(a) Except within the regular course of business or in connection with
its financing activities previously disclosed to All American and its
shareholders, MarketCentral will not enter into any material agreement, contract
or commitment, whether written or oral, without the prior written consent of All
American;
(b) MarketCentral will not declare any dividends or distributions with
respect to its capital stock or amend its Articles of Incorporation or By-Laws,
without the prior written consent of All American;
(c) MarketCentral will not authorize, issue, sell, purchase, or redeem
any shares of its capital stock or any options or other rights to acquire its
capital stock without the prior written consent of All American.
(d) Except within the regular course of business and in its financing
activities previously disclosed to All American and its shareholders,
MarketCentral will not incur any indebtedness for money borrowed or issue any
debt securities, or incur or suffer to be incurred any liability or obligation
of any nature whatsoever, or cause or permit any lien, encumbrance or security
interest to be created or arise on or in any of its properties or assets,
without the prior written consent of All American;
(e) MarketCentral will comply with all requirements which federal or
state law may impose on it with respect to this Agreement and the transactions
contemplated hereby, and will promptly cooperate with and furnish written
information to All American in connection with any such requirements imposed
upon the parties hereto in connection therewith;
(f) MarketCentral shall grant to All American and its counsel,
accountants and other representatives, full access during normal business hours
during the period prior to the Closing to all its respective properties, books,
contracts, commitments and records and, during such period, furnish promptly to
All American and such representatives all information relating to MarketCentral
as All American may reasonably request, and shall extend to All American the
opportunity to meet with MarketCentral s accountants and attorneys to discuss
the financial condition of MarketCentral.
SECTION 5.2 Affirmative Covenants. Prior to Closing, MarketCentral
will do the following:
(a) Use its best efforts to accomplish all actions necessary to
consummate this Agreement, including satisfaction of all conditions contained in
this Agreement; and
(b) Promptly notify All American in writing of any material adverse
change in the financial condition, business, operations or key personnel of
MarketCentral, any threatened material litigation or investigation, any breach
of its representations or warranties contained herein, and any material
contract, agreement, license or other agreement which, if in effect on the date
of this Agreement, should have been included in this Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Expenses. Whether or not the transactions contemplated in
this Agreement are consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expense unless specifically agreed otherwise herein.
SECTION 6.2. Brokers and Finders. Each of the parties hereto
represents, as to itself, that no agent, broker, investment banker or firm or
person is or will be entitled to any broker s or finder s fee or any other
commission or similar fee in connection with any of the transactions
contemplated by this Agreement.
SECTION 6.3 Necessary Actions. Subject to the terms and conditions
herein provided, each of the parties hereto agree to use all reasonable efforts
to take, or cause to be taken, all action, and to do or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
In the event at any time after the Closing, any further action is necessary or
desirable to carry out the purpose of this Agreement, the proper officers and/or
directors of All American or MarketCentral, as the case may be, shall take all
such necessary action.
(a) MarketCentral agrees to defend and hold All American harmless
against and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorney fees, that All American shall incur
or suffer, which arise out of, result from or relate to any material breach of,
or failure by MarketCentral to perform any of its representations, warranties,
covenants and agreements in this Agreement or in any exhibit or other instrument
furnished or to be furnished by MarketCentral under this Agreement.
(b) All American agrees to defend and hold MarketCentral harmless
against and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorney fees, that MarketCentral shall incur
or suffer, which arise out of, result from or relate to any material breach of,
or failure by All American or Acquisition to perform any of its representations,
warranties, covenants and agreements in this Agreement or in any exhibit or
other instrument furnished or to be furnished by All American under this
Agreement.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The obligations of the parties under this Agreement are subject to the
fulfillment and satisfaction of each of the following conditions:
SECTION 7.1 Legal Action. No preliminary or permanent injunction or
other order by any federal or state court which prevents the consummation of
this Agreement or any of the transactions contemplated by this Agreement shall
have been issued and remain in effect.
SECTION 7.2 Absence of Termination. The obligations to consummate the
transactions contemplated hereby shall not have been canceled pursuant to
Article X hereof.
SECTION 7.3 Required Approvals. All American and MarketCentral shall
have received all such approvals, consents, authorizations or modifications as
may be required to permit the performance by All American and MarketCentral of
the respective obligations under this Agreement, and the consummation of the
transactions herein contemplated, whether from governmental authorities or other
persons, and All American and MarketCentral shall each have received any and all
permits and approvals from any regulatory authority having jurisdiction required
for the lawful consummation of this Agreement.
SECTION 7.4 "Blue Sky" Compliance. There shall have been obtained any
and all permits, approvals and consents of the appropriate state securities
commissions of any jurisdictions, and of any other governmental body or agency,
which counsel for All American may reasonably deem necessary or appropriate so
that consummation of the transactions contemplated by this Agreement may be in
compliance with all applicable laws.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF ALL AMERICAN
All obligations of All American under this Agreement are subject to the
fulfillment and satisfaction by MarketCentral prior to or at the time for
Closing, of each of the following conditions, any one or more of which may be
waived by All American.
SECTION 8.1 Representations and Warranties True at Closing. All
representations and warranties of MarketCentral contained in this Agreement will
be true and correct at and as of the time of the Closing, and MarketCentral
shall have delivered to All American an Officer s Certificate, dated the Closing
Date, to such effect and in the form and substance satisfactory to All American,
and signed, in the case of MarketCentral, by its President and Secretary.
SECTION 8.2 Performance. The obligations of MarketCentral to be
performed on or before the Closing pursuant to the terms of this Agreement shall
be duly performed at such time, and MarketCentral shall have delivered to All
American an Officer s Certificate, dated the Closing Date, to such effect and in
form and substance satisfactory to All American.
SECTION 8.3 Authority. All action required to be taken by, or on the
part of MarketCentral and its shareholders to authorize the execution, delivery
and performance of this Agreement by MarketCentral and the consummation of the
transactions contemplated hereby, shall have been duly and validly taken.
SECTION 8.4 Absence of Certain Changes or Events. There shall not have
occurred, since the date hereof, any adverse change in the business, condition
(financial or otherwise), assets or liabilities of MarketCentral or any event or
condition of any character adversely affecting MarketCentral, and it shall have
delivered to All American, certificates, dated the Closing Date, to such effect
and in form and substance satisfactory to All American and signed, in the case
of MarketCentral, by its President and Secretary.
SECTION 8.5 Acceptance by MarketCentral Shareholders. Prior to the
Closing the holders of a majority of the issued and outstanding shares of the
capital stock of MarketCentral shall have approved this Agreement and agreed to
the Merger.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF MARKETCENTRAL
All obligations of MarketCentral under this Agreement are subject to
the fulfillment and satisfaction by All American and Acquisition prior to or at
the time of Closing, of each of the following conditions, any one or more of
which may be waived by MarketCentral.
SECTION 9.1 Representations and Warranties True at Closing. All
representations and warranties of All American and Acquisition contained in this
Agreement will be true and correct at and as of the time of the Closing, and All
American shall have delivered to MarketCentral an Officer s Certificate, dated
the Closing Date, to such effect and in the form and substance satisfactory to
MarketCentral, and signed, in the case of All American, by its President and
Secretary.
SECTION 9.2 Performance. The obligations of All American, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ to be performed on or before the Closing pursuant
to the terms of this Agreement shall have been duly performed at such time, and
All American shall have delivered to MarketCentral an Officer s Certificate,
dated the Closing Date, to such effect and in form and substance satisfactory to
MarketCentral, and signed in the case of All American, by its President and
Secretary.
SECTION 9.3 Authority. All action required to be taken by, or on the
part of All American and its shareholders to authorize the execution, delivery
and performance of this Agreement by All American and the consummation of the
transactions contemplated hereby, shall have been duly and validly taken.
SECTION 9.4 Absence of Certain Changes or Events. There shall not have
occurred, since the date hereof, any adverse change in the business, condition
(financial or otherwise), assets or liabilities of All American or Acquisition
or any event or condition of any character adversely affecting All American or
Acquisition, and it shall have delivered to MarketCentral, certificates, dated
the Closing Date, to such effect and in form and substance satisfactory to
MarketCentral and signed, in the case of All American, by its President and
Secretary.
SECTION 9.5 Action by All American Shareholders. Prior to the Closing
of this Agreement, the shareholders of All American shall have approved this
Agreement and the transactions contemplated hereunder and all of the proposals
set forth in Section 1.3 above. The current directors and officers of All
American and Acquisition shall have submitted their resignations as directors
and officers of All American effective as of the Closing of this Agreement.
ARTICLE X
TERMINATION
SECTION 10.1 Termination. Notwithstanding anything herein or elsewhere
to the contrary, this Agreement may be terminated:
(a) By mutual agreement of the parties hereto at any time prior to the
Closing;
(b) By the Board of Directors of All American at any time prior to the
Closing, if:
(i) a condition to performance by All American under
this Agreement or a covenant of MarketCentral contained herein
shall not be fulfilled on or before the date of the Closing or
at such other time and date specified in this Agreement for
the fulfillment for such covenant or condition; or
(ii) a material default or breach of this Agreement
shall be made by MarketCentral.
(c) By the Board of Directors of MarketCentral at any time prior to the
Closing, if:
(i) a condition to MarketCentral s performance under
this Agreement or a covenant of All American, Acquisition,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ contained herein shall not
be fulfilled on or before the date of the Closing or at such
other time and date specified in this Agreement for the
fulfillment for such covenant or condition; or
(ii) a material default or breach of this Agreement
shall be made by All American or Acquisition;
SECTION 10.2 Effect of Termination. If this Agreement is terminated,
this Agreement, except as to Section 11.1 and Section 11.2, shall no longer be
of any force or effect and there shall be no liability on the part of any party
or its respective directors, officers or stockholders; provided however, that in
the case of a termination pursuant to Section 10.1 (b)(ii) or l0.l(c)(ii) hereof
because of a prior material default under or a material breach of this Agreement
by another party, the damages which the aggrieved party or parties may recover
from the defaulting party or parties shall in no event exceed the amount of
out-of-pocket costs and expenses incurred by such aggravated party or parties in
connection with this Agreement, and no party to this Agreement shall be entitled
to any injunctive relief.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Cost and Expenses. All costs and expenses incurred in
connection with this Agreement, including legal fees will be paid by All
American. In the event of any termination of this Agreement pursuant to Section
10.1, subject to the provisions of Section 10.2, All American and MarketCentral
will each bear their own respective expenses.
SECTION 11.2 Extension of time: Waivers. At any time prior to the
Closing:
(a) All American may (i) extend the time for the performance of any of
the obligations or other acts of MarketCentral, (ii) waive any inaccuracies in
the representations and warranties of MarketCentral contained herein or in any
documents delivered pursuant hereto by MarketCentral and (iii) waive compliance
with any of the agreements or conditions contained herein to be performed by
MarketCentral. Any agreement on the part of All American to any such extension
or waiver shall be valid only if set forth in an instrument, in writing, signed
on behalf of All American and shall only be effective in the specific instance.
No waiver or any condition or provision shall be deemed to be a subsequent
waiver of such condition or provision or a waiver of any condition or provision
other than the one specifically waived.
(b) MarketCentral may (i) extend the time for the performance of any of
the obligations or other acts of All American, (ii) waive any inaccuracies in
the representations and warranties of All American contained herein or in any
documents delivered pursuant hereto by All American and (iii) waive compliance
with any of the agreements or conditions contained herein to be performed by All
American. Any agreement on the part of MarketCentral to any such extension or
waiver shall be valid only if set forth in an instrument, in writing, signed on
behalf of MarketCentral and shall only be effective in the specific instance. No
waiver or any condition or provision shall be deemed to be a subsequent
waiver of such condition or provision or a waiver of any condition or provision
other than the one specifically waived.
SECTION 11.3 Notices. Any notice to any party hereto pursuant to this
Agreement shall be in writing and given by Certified or Registered Mail, Fedex
or by facsimile, addressed as follows:
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
All American Consultant Aircraft, Inc. and
All American Acquisition Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇ Yakimishyn
Additional notices are to be given as to each party, at such other
address as should be designated in writing complying as to delivery with the
terms of this Section 11.3. All such notices shall be effective when sent,
addressed as aforesaid.
SECTION 11.4 Parties in Interest. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and the respective successors
and assigns. Nothing in this Agreement is intended to confer, expressly or by
implication, upon any other person any rights or remedies under or by reason of
this Agreement.
SECTION 11.5 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and together shall
constitute one document. The delivery by facsimile of an executed counterpart of
this Agreement shall be deemed to be an original and shall have the full force
and effect of an original executed copy.
SECTION 11.6 Severability. The parties hereto agree and affirm that
none of the provisions herein is dependent upon the validity of any other
provision, and if any part of this Agreement is deemed to be unenforceable, the
remainder of the Agreement shall remain in full force and effect.
SECTION 11.7 Headings. The "Article" and "Section" headings are
provided herein for convenience of reference only and do not constitute a part
of this Agreement.
SECTION 11.8 Survival of Representations and Warranties. All terms,
conditions, representations and warranties set forth in this Agreement or in any
instrument, certificate, opinion, or other writing providing for in it, shall
survive the Closing and the delivery of the All American Shares issued hereunder
at the Closing, for a period of one year from the Closing regardless of any
investigation made by or on behalf of any of the parties hereto.
SECTION 11.9 Assignability. This Agreement shall not be assigned by any
of the parties hereto without the prior written consent of the other parties.
SECTION 11 .10 Amendment. This Agreement may be amended with the
approval of the Boards of Directors of All American and MarketCentral at any
time before or after approval thereof by stockholders of All American, if
required, and MarketCentral; but after such approval by the All American
shareholders, no amendment shall be made which substantially and adversely
changes the terms hereof. This Agreement may not be amended except by an
instrument, in writing, signed on behalf of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in a manner legally binding upon them as of the date first above
written.
All American:
All American Consultant Aircraft, Inc.
By: /S/
▇▇▇▇▇▇ Yakimishyn, President
Acquisition:
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corp.
By: /S/
▇▇▇▇▇▇ Yakimishyn, President
MarketCentral:
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corp.
By: /S/
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President
As to Section 1.4 (vii) only:
/S/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/S/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
SCHEDULE 1.2
MarketCentral Shareholder List and All American Shares to be Issued
Shareholder Shares of Market Central
Shares of All American to be issued
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 785 794,813
▇▇▇▇▇ ▇▇▇▇▇▇ 196.25 198,703
▇▇▇▇ ▇▇▇▇▇▇ 196.25 198,703
▇▇▇▇▇ ▇▇▇▇▇▇ 196.25 198,703
▇▇▇▇▇▇ ▇▇▇▇▇▇ 196.25 198,703
▇▇▇▇▇ ▇▇▇▇▇▇ 385 389,813
▇▇▇▇▇ ▇▇▇▇▇▇▇ 45 45,562
SCHEDULE 1.3(vi)
Stock Options to be Issued
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 170,000
▇▇▇▇▇ ▇▇▇▇▇▇ 25,000
▇▇▇▇▇ ▇▇▇▇▇▇ 50,000
▇▇▇▇ ▇▇▇▇▇▇▇ 5,000
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 75,000
▇▇▇▇▇▇ Yakimishyn 75,000
SCHEDULE 2.2
Capitalization
Other than options contemplated to be issued pursuant to Section 1.3 (vi)
hereto, none.
SCHEDULE 2.11
Litigation
NONE
EXHIBIT 1.3(v)
Subscription Agreement
