SHARE EXCHANGE AGREEMENT
Exhibit
10.1
This SHARE EXCHANGE AGREEMENT (this
“Agreement”) dated as of November 14 2008, by Ambermax IV
Corporation. a Colorado Corporation having an address at 00000 XXX
00X, Xxxxxxxx, XX 00000 (“Ambermax”), Xxxxx X. Xxxxxxx, xx.xx., the (“Ambermax
Shareholders”)or the (“Ambermax Stockholders”), see Section 2.1 (b) for full
list of Ambermax IV Shareholders, having addresses at 00000 XXX 00X,
Xxxxxxxx, XX 00000, and Mountain Renewables, Inc., a Nevada corporation having
an address at 0000 Xxxxx Xxxxxx,Xxxxxx, Colorado (“MOUNTAIN”).
RECITALS
A. Xxxxx
X. Xxxxxxx, et. al, are the holders of a total of 1,125,000 (One
Million One Hundred Twenty Five Thousand) shares (the “Ambermax Shares”) of the
stock of Ambermax IV Corporation,, and the Ambermax Shares represent 100 % of
the issued and outstanding shares of Ambermax IV
Corporation.
B. The
parties hereto desire that Xxxxx X. Xxxxxxx, et. al., convey to
Mountain the Ambermax Shares, and that, in exchange therefore,
Mountain will issue to Xxxxx X. Xxxxxxx, et. al, See Section 2.1 (b) for full
list of Ambermax IV Shareholders,
an aggragate of 3,375,000 shares of its common stock (the “Exchange Shares”), so
that, after the consummation of such exchange, Mountain will hold 100% of the
issued and outstanding shares of Ambermax IV..
C. It
is intended that the Exchange Shares to be issued pursuant hereto will be issued
to the Ambermax Stockholders under Section 4(2) of the Securities Act of 1933,
as amended (the “Securities Act”) and/or Regulation D promulgated by the
Securities and Exchange Commission (the “SEC”) thereunder and shall not be
registered under the Securities Act or any other relevant laws or
regulations.
D. The
parties hereto intend that the transaction described herein qualify as a
tax-free reorganization under Section 368 of the Internal Revenue Code of 1986,
as amended (the "Code").
E. Mountain
Renewables is authorized to issue up to 100,000,000 shares of common stock. The
parties to this agreement anticipate that following consummation of this
agreement, Mountain will take steps to list its common shares for trading on a
public market and may sell additional shares for cash and/or acquire additional
companies for shares of its common stock.
1.
NOW, THEREFORE, in consideration of the
covenants, promises and representations set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties agree as
follows:
ARTICLE
I
DEFINITIONS
1.1 Certain Definitions.
As used in this Agreement and the schedules hereto, the following terms have the
respective meanings set forth below.
(a) "Action"
means any administrative, regulatory, judicial or other proceeding by or before
any Governmental Authority or arbitrator.
(b) "Affiliate"
means, with respect to any Person, any other Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, including the ability
to elect the members of the board of directors or other governing body of a
Person, and the terms "controlled" and "controlling" have correlative
meanings.
(c) "Business
Day" means a day on which banks are open for business in New York, New
York.
(d) "Claims"
means any and all claims, demands or causes of action, relating to or resulting
from an Action.
(e) "Contract"
means any contract, agreement, indenture, deed of trust, license, note, bond,
mortgage, lease, guarantee and any similar understanding or arrangement, whether
written or oral.
(f) "Encumbrances"
means security interests, liens, Claims, charges, title defects, deficiencies or
exceptions (including, with respect to Real Property, defects, deficiencies or
exceptions in, or relating to, marketability of title, or leases, subleases or
the like affecting title), mortgages, pledges, easements, encroachments,
restrictions on use, rights of-way, rights of first refusal, conditional sales
or other title retention agreements, covenants, conditions or other similar
restrictions (including restrictions on transfer) or other encumbrances of any
nature whatsoever.
2.
(g) "GAAP"
means United States generally accepted accounting principles.
(h) "Governmental
Authority" means any supranational, national, federal, state or local
government, foreign or domestic, or the government of any political subdivision
of any of the foregoing, or any entity, authority, agency, ministry or other
similar body exercising executive, legislative, judicial, regulatory or
administrative authority or functions of or pertaining to government, including
any authority or other quasi-governmental entity established by a Governmental
Authority to perform any of such functions.
(i) "Indebtedness"
of any Person means, without duplication, (i) all obligations of such Person for
money borrowed; (ii) all obligations of such Person evidenced by notes,
debentures, bonds or other similar instruments for the payment of which such
Person is responsible or liable; (iii) all obligations of such Person issued or
assumed for deferred purchase price payments associated with acquisitions,
divestments or other transactions; (iv) all obligations of such Person under
leases required to be capitalized in accordance with GAAP, as consistently
applied by such Person, (v) all obligations of such Person for the reimbursement
of any obligor on any letter of credit, banker's acceptance, guarantees or
similar credit transaction, excluding in all cases in clauses (i) through (v)
current accounts payable, trade payables and accrued liabilities incurred in the
ordinary course of business.
(j) "IRS"
means the Internal Revenue Service of the United States of America.
(k) "Laws"
means all United States federal, state or local or foreign laws, constitutions,
statutes, codes, rules, regulations, ordinances, executive orders, decrees or
edicts by a Governmental Authority having the force of law.
(l) "Liabilities"
means any and all debts, liabilities, commitments and obligations, whether or
not fixed, contingent or absolute, matured or unmatured, direct or indirect,
liquidated or unliquidated, accrued or unaccrued, known or unknown, whether or
not required by GAAP to be reflected in financial statements or disclosed in the
notes thereto.
(m) "Person"
means an individual, partnership, corporation, limited liability company, joint
stock company, unincorporated organization or association, trust, joint venture
or Governmental Authority.
3.
(n) "Subsidiaries"
of any entity means, at any date, any Person (a) the accounts of which would be
consolidated with those of the Applicable entity in such entity's consolidated
financial statements if such financial statements were prepared in accordance
with GAAP as of such date, or (b) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests or more than 50% of the profits or losses of which
are, as of such date, owned, controlled or held by the applicable entity or one
or more subsidiaries of such entity.
(o) "Tax"
means any federal, state, local or foreign taxes, including but not limited to
any income, gross receipts, payroll, employment, excise, severance, stamp,
business, premium, windfall profits, environmental (including taxes under
section 59A of the Code), capital stock, franchise, profits, withholding, social
security (or similar), unemployment, disability, real property, personal
property, sales, use, service, service use, lease, lease use, transfer,
registration, value added tax, or similar tax, any alternative or add-on minimum
tax, and any estimated tax, in each case, including any interest, penalty, or
addition thereto, whether disputed or not.
(p) "Tax
Benefit" means the Tax effect of any item of loss, deduction or credit or any
other item (including increases in Tax basis) which decreases Taxes paid or
required to be paid, including any interest with respect thereto or interest
that would have been payable but for such item.
(q) "Tax
Returns" means all returns, declarations, reports, estimates, information
returns and statements required to be filed in respect of Taxes.
(r) "Taxing
Authority" means any Governmental Authority having jurisdiction over the
assessment, determination, collection or other imposition of Taxes.
1.2 References and Title.
All references in this Agreement to articles, sections, subsections and other
subdivisions refer to the articles, sections, subsections and other subdivisions
of this Agreement unless expressly provided otherwise. Titles appearing at the
beginning of any section or subdivision are for convenience only and do not
constitute any part of such subdivisions and shall be disregarded in construing
the language contained in such subdivisions. The words “this
Agreement,” “this instrument,” “herein,” “hereof,” “hereby,” “hereunder” and
words of similar import refer to this Agreement as a whole and not to any
particular subdivision unless expressly so limited. The phrases “this
Section” and “this subsection” and similar phrases refer only to the sections or
subsections hereof in which such phrases occur. Pronouns in
masculine, feminine and neuter genders shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa, unless the context otherwise requires.
4.
ARTICLE
II
SHARE
EXCHANGE
2.1 Share
Exchange. Subject to the terms and conditions stated herein,
the Exchange Shares and the Ambermax Shares shall be exchanged as
follows (the “Exchange”):
(a) at
the Closing, the Ambermax Stockholders shall assign, transfer, convey, and
deliver to Mountain the Ambermax Shares and any and all rights in such shares to
which they are entitled, and by doing so will be deemed to have assigned all of
its respective right, title and interest in and to all such Ambermax Shares to
Mountain; and
(b) in
exchange for the Ambermax Shares, Mountain shall issue to the Ambermax
Stockholders and the Ambermax Stockholders shall accept and acquire from
Mountain, the Exchange Shares, totaling 3,375,000 shares of Mountain Renewables
Common Stock. At the Closing, Mountain shall issue certificates, as
follows:
|
Name
|
Number
of Shares
|
|
|
|
|
Xxxxx
Xxxxxxx
|
600,000
|
|
Xxxxxxx
Xxxxxxx
|
600,000
|
|
Xxxxxx
Xxxxxxxx
|
600,000
|
|
Xxxxxx
Xxxxxxxx
|
150,000
|
|
Xxxxxx
Xxxxxxxx
|
150,000
|
|
Xxxxxx
Xxxxxxxx
|
150,000
|
|
Xxxxx
Xxxxxxx
|
150,000
|
|
Xxxxx
Xxxxxx
|
30,000
|
|
Xxxxx
X.
Xxxxx
|
60,000
|
|
Xxxxx
Xxxxxxxx
|
30,000
|
|
Xxxxx
Xxxxxx
|
30,000
|
|
Xxxxx
Xxxxxx
|
30,000
|
|
Xxxxxxx
Xxxx
|
60,000
|
|
Xxxxxxx
Xxxxxxxxx
|
30,000
|
|
Xxxxx
Xxxxxxx
|
30,000
|
|
Xxxxx
Xxxxx
|
30,000
|
|
Xxxxx
X. Xxxxx
|
30,000
|
|
Xxxx
Xxxxx
|
30,000
|
|
Xxxxx
Xxxxxx
|
7,500
|
|
Xxxxxxxxx
Xxxxx
|
30,000
|
|
Xxxxxxxx
Xxxxx
|
30,000
|
|
Xxxxxxx
Xxxxxxx
|
30,000
|
|
Xxxxxx
and Lahana Xxxxxxxx, JTWROS
|
30,000
|
|
Xxxxxxxxx
Xxxxxxx
|
30,000
|
|
Xxxxxx
and Xxxx Xxxxx, JTWROS
|
30,000
|
|
Xxxxxxx
Xxxxxx
|
30,000
|
5.
|
Name
|
Number
of Shares
|
|
Xxxxx
Xxxxxx
|
30,000
|
|
Xxxxxxx
Xxxxxxx
|
30,000
|
|
Xxxx
Xxxxxxxx
|
30,000
|
|
Xxxx
Xxxxxxxx
|
30,000
|
|
Xxxx
Xxxxx
|
30,000
|
|
Xxxxxxx
and Xxxxxxx Xxxxxxxxxxxx, JTWROS
|
30,000
|
|
Xxxx
Xxxxxxxx Revocable Trust
|
30,000
|
|
Xxx
Xxxxxx
|
30,000
|
|
Xxxxxxxx
and Xxxxxx Xxxxxxxx, JTWROS
|
30,000
|
|
Xxxxxxx
Xxxxx
|
30,000
|
|
Xxxxxx
Xxxxxx
|
30,000
|
|
Xxxxx
Xxxxxx
|
30,000
|
|
Xxxx
Xxxxxx
|
30,000
|
2.2 Tax Consequences. It
is intended by the arties hereto that the transactions contemplated by this
Agreement shall constitute a tax-free reorganization within the meaning of
Section 368 of the Code. The parties hereto adopt this Agreement as a "plan of
reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the
regulations promulgated under the Code.
ARTICLE
III
CLOSING
3.1 Date and Location of the
Closing. The closing (the "Closing") of the transactions
contemplated hereunder shall take place on November 21, 2008.
3.2 Deliveries.
At
the Closing:
(1) Xxxxx X. Xxxxxxx, et. al., shall
deliver to Mountain (i) The list of Ambermax shareholders, representing delivery
of all issued and outstanding (uncertificated) Ambermax Shares , (ii) certified
check in the amount of $12,871 made payable to Mountain Renewables, Inc.
(representing the cash held by Ambermax at Compass Bank), (iii) all company
books and records.
(2) Mountain shall deliver to
Xxxxx X. Xxxxxxx, et. al., (i) stock certificates evidencing, in
aggragate, 3,375,000 shares of Mountain Renewables, Inc., the Exchange Shares to
which Xxxxx X. Xxxxxxx, et. al., each individually are entitled to hereunder,
(ii) such other documents as may be required under applicable law or
requested by the Ambermax Shareholders.
6.
3.3 Wholly-Owned
Subsidiary. At and after the consummation of the Exchange will
have the effects set forth in this Agreement, and Ambermax shall become a
wholly-owned subsidiary of Mountain.
3.4
Restrictive
Legends. Certificates
evidencing the Exchange Shares pursuant to this Agreement may bear one or more
of the following legends and any legend required by any applicable law,
including without limitation, any legend that will be useful to aid compliance
with Regulation D or other regulations adopted by the SEC under the Securities
Act:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS TRANSFERRED PURSUANT TO
ANY VALID EXEMPTION FROM REGISTRATION AVAILABLE UNDER SUCH ACT.”
3.5 Piggyback Registration of Restricted
Shares. In connection with any Registration of Shares filed after
consummation of this agreement, such Registration of Shares will include all of
the 3,375,000 Exchange Shares owned by Xxxxx X. Xxxxxxx, et.
al.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF MOUNTAIN
As an inducement to Ambermax and the
Ambermax Stockholders, jointly and severerally to enter into this Agreement and
to consummate the transactions contemplated herein, Mountain represents and
warrants, as of the date of this Agreement to Ambermax and the Ambermax
Stockholders, as follows:
4.1 Organization. Mountain
is a corporation duly organized, validly existing, and in good standing under
the laws of Colorado.
4.2
Capital
Structure.
(a) Mountain's
authorized capital stock consists of One Hundred Million (100,000,000) shares of
common stock, of which Ten Million (10,000,000) shares are issued and
outstanding.
7.
(b) Upon
delivery to the Ambermax Stockholders of the certificates representing the
Exchange Shares, the Ambermax Stockholders will acquire good and valid title to
such shares, free and clear of any Encumbrances. All of the Exchange
Shares will be duly authorized, validly issued, fully paid and nonassessable,
and will not be issued in violation of any preemptive or similar
rights. There are no outstanding subscriptions, options, warrants,
puts, calls, agreements or other rights of any type or other securities (a)
requiring the issuance, sale, transfer, repurchase, redemption or other
acquisition of any shares of capital stock of Mountain, (b) restricting the
transfer of any shares of capital stock of Mountain, or (c) relating to the
voting of any shares of capital stock of Mountain. There are no issued or
outstanding Indebtedness of Mountain having the right to vote (or convertible
into, or exchangeable for, securities having the right to vote), upon the
happening of a certain event or otherwise, on any matters on which the equity
holders of Mountain may vote.
(c) The
offer and issuance of the Exchange Shares will be done in compliance with all
applicable Laws.
4.3 Corporate Power and
Authority. Mountain has all requisite corporate power and authority to
enter into and deliver this Agreement and to consummate the transactions
contemplated hereby The execution, delivery, and performance of this
Agreement by MOUNTAIN and the consummation by it of the transactions
contemplated hereby, and the execution, delivery and performance of the other
agreements, documents and instruments to be executed and delivered in connection
with this Agreement by MOUNTAIN and the consummation of the transactions
contemplated thereby, have been duly authorized by all necessary action on the
part of MOUNTAIN and no other corporate action or corporate proceeding on the
part of MOUNTAIN is necessary to authorize the execution, delivery, and
performance by MOUNTAIN of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by MOUNTAIN and constitutes the legal, valid and binding obligation of
MOUNTAIN, enforceable against it in accordance with its terms.
4.4 Conflicts; Consents and
Approvals. Neither the execution and delivery by MOUNTAIN of
this Agreement and the other agreements, documents and instruments to be
executed and delivered by it in connection with this Agreement, nor the
consummation of the transactions contemplated hereby and thereby,
will:
(a) conflict
with, or result in a breach of any provision of, the organizational documents of
MOUNTAIN;
8.
(b) violate,
or conflict with, or result in a breach of any provision of, or constitute a
default (or an event that, with the giving of notice, the passage of time or
otherwise, would constitute a default) under, or entitle any Person (with the
giving of notice, the passage of time or otherwise) to terminate, accelerate,
modify or call a default under, or give rise to any obligation to make a payment
under, or to any increased, additional or guaranteed rights of any Person under,
or result in the creation of any Encumbrance upon any of the properties or
assets of MOUNTAIN or the Exchange Shares under any of the terms, conditions or
provisions of (1) the organizational documents of MOUNTAIN, (2) any Contract to
which MOUNTAIN is a party or to which any of its properties or assets may be
bound, or (3) any permit, registration, approval, license or other authorization
or filing to which MOUNTAIN is subject or to which any of its properties or
assets may be subject;
(c) require
any action, consent or approval of any non-governmental third
party;
(d) violate
any order, writ, or injunction, or any material decree, or material Law
applicable to MOUNTAIN or any of its, business, properties, or assets;
or
(e) require
any action, consent or approval of, or review by, or registration or filing by
MOUNTAIN with any Governmental Authority.
4.5 Subsidiaries. MOUNTAIN
does not own, directly or indirectly, nor has entered into any agreement,
arrangement or understanding to purchase or sell any capital stock or other
equity interests in any Person or is a member of or participant in any Person.
MOUNTAIN does not have any Subsidiaries.
4.6 Taxes. MOUNTAIN
has (a) duly and timely filed all Tax Returns relating to MOUNTAIN that it was
required to file (taking into account any extensions of the filing deadlines
which have been validly granted) and (b) paid all Taxes that are shown thereon
as owing or that are otherwise due and payable by it. Such filed Tax Returns are
true, correct and complete in all material respects. There are no disputes
pending or threatened as to Taxes payable by MOUNTAIN. There are no
outstanding agreements or waivers extending the statutory period of limitation
applicable to any Taxes of MOUNTAIN for any period. MOUNTAIN (v) has
not filed a consent to the application of Section 341(f) of the Code, (w) has
not been a "distributing corporation" or a "controlled corporation" in a
distribution intended to qualify under Section 355(a) of the Code within the
past five years, (x) is not a party to any Tax sharing, allocation or
indemnification agreement or arrangement, (y) is not required to make any
adjustments under Section 481(a) of the Code (or any similar provision of state,
local or foreign Tax law) for any taxable year ending after the date hereof, and
(z) has not been a member of an affiliated group filing a consolidated, combined
or unitary Tax Return or has any liability for the Taxes of any Person (other
than MOUNTAIN) under Treasury Regulation §1.15026 (or any similar provision of
state, local or foreign law).
9.
4.7 Compliance with
Law. MOUNTAIN and each of the officers, directors, employees
and agents of MOUNTAIN has complied in all respects with all Laws applicable to
MOUNTAIN and its assets. Neither the MOUNTAIN Stockholder nor
MOUNTAIN has received any notice from any Governmental Authority that MOUNTAIN
has been or is being conducted in violation of any Applicable Law or that an
investigation or inquiry into any noncompliance with any applicable Law is
ongoing, pending or threatened.
4.8 Litigation. There is
no Action pending or threatened against MOUNTAIN, or any executive officer or
director thereof that (a) relates to MOUNTAIN, its assets, or its business, or
(b) seeks, or could reasonably be expected, to prohibit or restrain the ability
of MOUNTAIN to enter into this Agreement or to timely consummate any of the
transactions contemplated hereby, and there is no reasonable basis for any such
Action. There are no judgments, decrees, agreements, memoranda of
understanding or orders of any Governmental Authority outstanding against
MOUNTAIN.
4.9 Contracts. There are
no Contracts to which MOUNTAIN is, or will be at Closing, a party or bound,
other than those relating to its business or assets.
4.10 Labor and Employment
Matters; Employee Benefit
Plans.
(a) As
of the date hereof, MOUNTAIN does not have any Employees other than those
related to its business or assets. There are no collective bargaining
agreements, union contracts or similar agreements or arrangements in effect that
cover any Employee or Former Employee (each, a "Collective Bargaining
Agreement").
(b) As
of the Closing, MOUNTAIN will not sponsor, maintain, contribute to, or have any
Liability under, for or with respect to, any Employee Benefit Plans (including
multiemployer plans) or any Employment Agreements. From and after the Closing,
AMBERMAX AND THE AMBERMAX STOCKHOLDERS will not directly or indirectly have or
incur any Liabilities, whether by virtue of the transactions contemplated by
this Agreement or otherwise, with respect to or in connection with (i) any
Employee Benefit Plans or any Employment Agreements; and (ii) the Employees or
any other individuals who do or did at any time provide employment or
employment-type services for or with respect to MOUNTAIN, which arose or were
incurred at any time prior to the Closing.
(c) There
does not now exist, nor do any circumstances exist that could result in, any
liability to MOUNTAIN or its Affiliates following the Closing.
(d) MOUNTAIN
has no liability for life, health, medical or other welfare benefits to Former
Employees or beneficiaries or dependents thereof.
10.
4.11 Real Estate. MOUNTAIN
does not own, lease, sublease, or have any interest whatsoever in any real
property.
4.12 Guaranties. MOUNTAIN
is not directly or indirectly (a) liable, by guarantee or otherwise, upon or
with respect to, (b) obligated to provide funds with respect to, or to guarantee
or assume, any Indebtedness or other obligation of any Person.
4.13 Full Disclosure. No
representation or warranty of MOUNTAIN or the MOUNTAIN Stockholder in this
Agreement omits to state a material fact necessary to make the statements
herein, in light of the circumstances in which they were made, not misleading.
There is no fact known to MOUNTAIN or the MOUNTAIN Stockholder that has specific
application to AMBERMAX AND THE AMBERMAX STOCKHOLDERS and that materially
adversely affects or, as far as can be reasonably foreseen, materially
threatens, the assets, business, prospects, financial condition, or results of
operations of MOUNTAIN that has not been set forth in this
Agreement.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF AMBERMAX AND THE AMBERMAX STOCKHOLDERS
As an inducement to MOUNTAIN to enter
into this Agreement and to consummate the transactions contemplated herein,
Ambermax and the Ambermax Stockholders, Jointly and Sevraly represents and
warrant, as of the date of this Agreement, to MOUNTAIN as follows:
5.1 Organization. Ambermax
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Colorado.
5.2 Corporate Power and
Authority. Ambermax and the Ambermax
Stockholders has all requisite corporate power and authority to enter
into and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery, and performance of this Agreement by
AMBERMAX AND THE AMBERMAX STOCKHOLDERS and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary action and no
other corporate action or corporate proceeding on the part of AMBERMAX AND THE
AMBERMAX STOCKHOLDERS is necessary to authorize the execution, delivery, and
performance by AMBERMAX AND THE AMBERMAX STOCKHOLDERS of this Agreement and the
consummation by AMBERMAX AND THE AMBERMAX STOCKHOLDERS of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
AMBERMAX AND THE AMBERMAX STOCKHOLDERS and constitutes the legal, valid and
binding obligation of AMBERMAX AND THE AMBERMAX STOCKHOLDERS, enforceable
against AMBERMAX AND THE AMBERMAX STOCKHOLDERS in accordance with its
terms.
11.
5.3 Conflicts; Consents and
Approvals. Neither the execution and delivery
by AMBERMAX AND THE AMBERMAX STOCKHOLDERS of this Agreement and the
other agreements, documents and instruments to be executed and delivered by any
of them in connection with this Agreement, nor the consummation of the
transactions contemplated hereby and thereby, will:
(a) conflict
with, or result in a breach of any provision of, the organizational documents of
AMBERMAX AND THE AMBERMAX STOCKHOLDERS;
(b) violate,
or conflict with, or result in a breach of any provision of, or constitute a
default (or an event that, with the giving of notice, the passage of time or
otherwise, would constitute a default) under, or entitle any Person (with the
giving of notice, the passage of time or otherwise) to terminate, accelerate,
modify or call a default under, or give rise to any obligation to make a payment
under, or to any increased, additional or guaranteed rights of any Person under,
or result in the creation of any Encumbrance upon any of the properties or
assets of AMBERMAX AND THE AMBERMAX STOCKHOLDERS or the Ambermax Shares under
any of the terms, conditions or provisions of (1) the organizational documents
of AMBERMAX AND THE AMBERMAX STOCKHOLDERS, (2) any Contract to which AMBERMAX
AND THE AMBERMAX STOCKHOLDERS is a party or to which any of their respective
properties or assets may be bound which, if so affected, would either have a
material adverse effect or be reasonably likely to prevent the consummation of
the transactions contemplated herein, or (3) any permit, registration, approval,
license or other authorization or filing to which AMBERMAX AND THE AMBERMAX
STOCKHOLDERS is subject or to which any of its properties or assets may be
subject;
(c) require
any action, consent or approval of any non-governmental third
party;
(d) violate
any order, writ, or injunction, or any material decree, or material Law
applicable to AMBERMAX AND THE AMBERMAX STOCKHOLDERS or any of its, business,
properties, or assets; or
(e) require
any action, consent or approval of, or review by, or registration or filing by
AMBERMAX AND THE AMBERMAX STOCKHOLDERS with any Governmental
Authority.
5.4 Ambermax
Shares. The Ambermax Stockholders have (i) good and marketable
title to all the Ambermax Shares, free and clear of all Encumbrances, and (ii)
full legal right and power to sell, transfer and deliver the Ambermax Shares to
Mountain in accordance with this Agreement.
12.
ARTICLE
VI
ADDITIONAL
AGREEMENTS AND COVENANTS
6.1 Confidentiality. Each
of the parties shall use reasonable efforts to cause their respective
Affiliates, officers, directors, employees, auditors, attorneys, consultants,
advisors and agents, to treat as confidential and hold in strict confidence,
unless compelled to disclose by judicial or administrative process or, in the
opinion of its counsel, by other requirements of Law, and after prior written
notice to the other parties, all confidential information of AMBERMAX AND THE
AMBERMAX STOCKHOLDERS or MOUNTAIN, as the case may be, that is made available in
connection with this Agreement, and will not release or disclose such
confidential information to any other Person, except their respective auditors,
attorneys, financial advisors and other consultants, agents, and advisors in
connection with this Agreement. If the Closing does not occur (a)
such confidence shall be maintained by the Parties and each Party shall use
reasonable efforts to cause its officers, directors, Affiliates and such other
Persons to maintain such confidence, except to the extent such information comes
into the public domain (other than as a result of an action by such Party, its
officers, directors or such other Persons in contravention of this Agreement),
and (b) upon the request of any Party, the other Party shall promptly return to
the requesting Party any written materials remaining in its possession, which
materials it has received from the requesting Party or its representatives,
together with any analyses or other written materials based upon the materials
provided.
6.2 Efforts to
Consummate. Subject to the terms and conditions of this
Agreement, each party hereto shall use reasonable commercial efforts to take, or
to cause to be taken, all actions and to do, or to cause to be done, all things
necessary, proper or advisable as promptly as practicable to consummate the
transactions contemplated hereby.
6.3 Further
Assurances. From time to time whether before, at or following
the Closing, each party shall make reasonable commercial efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
reasonably necessary, proper or advisable, including as required by applicable
Laws, to consummate and make effective as promptly as practicable the
transactions contemplated by this Agreement.
6.4 Cooperation with Respect to
Financial Reporting. After the date of this Agreement, AMBERMAX AND THE
AMBERMAX STOCKHOLDERS shall reasonably cooperate with Mountain
and the agents and representatives of Mountain in connection
with preparation of historical financial statements, related audits
of the financial statements of Ambermax and other information.
13.
6.5 Release of Claims By the
Ambermax Stockholders. In consideration of the transactions
contemplated hereby, as of the Closing, the Ambermax Stockholders, heirs,
executors, successors and assigns (the "Waiving Parties"), release, waive and
forever discharge, in all capacities, including as stockholders of Ambermax,
from and after the Closing any and all Claims, known or unknown, that the
Waiving Parties ever had, now have or may have against MOUNTAIN and its
stockholders, Affiliates, officers, directors, employees or agents in connection
with or arising out of any act or omission of MOUNTAIN or its officers,
directors, employees, advisers or agents, in such capacity, at or prior to the
Closing; provided, however, that nothing in this Section 6.5 shall be deemed a
waiver by the Waiving Parties of any rights under this Agreement.
ARTICLE
VII
INDEMNIFICATION;
SURVIVAL
7.1 Indemnification by
MOUNTAIN. Mountain shall indemnify and hold harmless AMBERMAX AND THE
AMBERMAX STOCKHOLDERS and its Affiliates, officers, directors, stockholders,
employees and agents and the successors and assigns of all of them (the
"AMBERMAX AND THE AMBERMAX STOCKHOLDERS Indemnified Parties"), and shall
reimburse the AMBERMAX AND THE AMBERMAX STOCKHOLDERS Indemnified Parties for,
any loss, liability, claim, damage, expense (including, but not limited to,
costs of investigation and defense and attorneys' fees) (collectively,
"Damages"), arising from or in connection with (a) any inaccuracy or breach of
any of the representations and warranties of MOUNTAIN or the MOUNTAIN
Stockholder in this Agreement or in any certificate or document delivered by
MOUNTAIN or the MOUNTAIN Stockholder pursuant to this Agreement, or any actions,
omissions or statements of fact inconsistent with in any respect any such
representation or warranty, (b) any failure by MOUNTAIN or the MOUNTAIN
Stockholder to perform or comply with any agreement, covenant or obligation in
this Agreement or in any certificate or document delivered by MOUNTAIN or the
MOUNTAIN Stockholder pursuant to this Agreement to be performed by or complied
with by MOUNTAIN or the MOUNTAIN Stockholder, (c) any claims made by a third
Person against an AMBERMAX AND THE AMBERMAX STOCKHOLDERS Indemnified Party based
upon a contractual obligation of MOUNTAIN or the MOUNTAIN Stockholder for
services performed prior to the date hereof, (d) Taxes attributable to the
ownership of MOUNTAIN prior to the Closing, (e) Taxes attributable to the
conduct by MOUNTAIN of the business of MOUNTAIN or the MOUNTAIN Stockholder’
operation or ownership of its assets, (f) any claims for severance or any other
compensation made by an Employees or Former Employee, (g) any claim made at any
time by any Governmental Authority in respect of the business of MOUNTAIN for
all periods prior to the Closing, (h) any Liability or obligation of MOUNTAIN
arising or relating to the periods prior to the Closing or (i) any Action or
investigation by any Person relating to or arising out of the business or
operations of MOUNTAIN prior to the Closing.
14.
7.2 Indemnification by AMBERMAX
AND THE AMBERMAX STOCKHOLDERS. AMBERMAX AND THE AMBERMAX STOCKHOLDERS
shall indemnify and hold harmless MOUNTAIN, the MOUNTAIN Stockholder, and their
Affiliates, officers, directors, stockholders, employees and agents and the
successors and assigns of all of them (the "MOUNTAIN Indemnified Parties"), and
shall reimburse the MOUNTAIN Indemnified Parties for, any loss, liability,
claim, damage, expense (including, but not limited to, costs of investigation
and defense and attorneys' fees) (collectively, "Damages"), arising from or in
connection with (a) any inaccuracy or breach of any of the representations and
warranties of AMBERMAX AND THE AMBERMAX STOCKHOLDERS in this Agreement or in any
certificate or document delivered by AMBERMAX AND THE AMBERMAX STOCKHOLDERS
pursuant to this Agreement, or any actions, omissions or statements of fact
inconsistent with in any respect any such representation or warranty, or (b) any
failure by AMBERMAX AND THE AMBERMAX STOCKHOLDERS to perform or comply with any
agreement, covenant or obligation in this Agreement or in any certificate or
document delivered by AMBERMAX AND THE AMBERMAX STOCKHOLDERS pursuant to this
Agreement to be performed by or complied with by AMBERMAX AND THE AMBERMAX
STOCKHOLDERS.
7.3 Survival. All
representations, warranties, covenants and agreements of the parties contained
herein or in any other certificate or document delivered pursuant hereto shall
survive the Closing for three years from the date hereof, except the
representations and warranties set forth in Section 4.7 which shall survive
until the expiration of the applicable statute of limitations.
ARTICLE
VIII
MISCELLANEOUS
8.1 Notices. All
notices or other communications required or permitted hereunder shall be in
writing. Any notice, request, demand, claim or other communication
hereunder shall be deemed duly given (a) if by personal delivery, when so
delivered, (b) if mailed, three (3) Business Days after having been sent by
registered or certified mail, return receipt requested, postage prepaid and
addressed to the intended recipient as set forth below, or (c) if sent through
an overnight delivery service in circumstances to which such service guarantees
next day delivery, the day following being so sent:
(1) If
to AMBERMAX AND THE AMBERMAX STOCKHOLDERS:
Xx. Xxxxx
X. Xxxxxxx
00000 XXX
00 X
Xxxxxxxx,
XX 00000
15.
(2) If
to MOUNTAIN :
Xx.
Xxxxxxx Xxxxxxxxx
0000
Xxxxx Xxxxxx
Xxxxxx,
XX 00000
Any party may change the address to
which notices and other communications hereunder are to be delivered by giving
the other parties notice in the manner herein set forth.
8.2 Choice of
Law. This Agreement shall be governed, construed and enforced
in accordance with the laws of the State of Colorado and the federal laws of
United States applicable therein, without giving effect to principles of
conflicts of law.
8.3 Jurisdiction. The
parties hereby irrevocably consent to the in personam jurisdiction of the state
or federal courts located in the State of Colorado, in connection with any
action or proceeding arising out of or relating to this Agreement or the
transactions and the relationships established thereunder. The
parties hereby agree that such courts shall be the venue and exclusive and
proper forum in which to adjudicate such matters and that they will not contest
or challenge the jurisdiction or venue of these courts.
8.4 Waiver of any and all Rights
to a Trial by Jury. All parties to this Agreement
unconditionally, irrevocably and expressly waive all rights to trial by jury in
any action, proceeding, suit, counterclaim or cross-claim in any matter (whether
sounding in tort, contract or otherwise) in any way arising out of or otherwise
relating to this Agreement or the transaction or the relationships established
hereunder. All parties confirm that the foregoing waiver of a trial by jury is
informed and freely made.
8.5 Entire
Agreement. This Agreement and such other agreements related to
this transaction executed simultaneously herewith set forth the entire agreement
and understanding of the parties in respect of the transactions contemplated
hereby and supersedes all prior agreements, arrangements and understandings of
the parties relating to the subject matter hereof. No representation,
promise, inducement, waiver of rights, agreement or statement of intention has
been made by any of the parties which is not expressly embodied in this
Agreement, such other agreements, notes or instruments related to this
transaction executed simultaneously herewith, or the written statements,
certificates, schedules or other documents delivered pursuant to this Agreement
or in connection with the transactions contemplated hereby.
8.6 Assignment. Each
party's rights and obligations under this Agreement shall not be assigned or
delegated, by operation of law or otherwise, without the other party's prior
consent, and any such assignment or attempted assignment shall be void, of no
force or effect, and shall constitute a material default by such
party.
16.
8.7 Amendments. This
Agreement may be amended, modified, superseded or cancelled, and any of the
terms, covenants, representations, warranties or conditions hereof may be
waived, only by a written instrument executed by AMBERMAX AND THE AMBERMAX
STOCKHOLDERS and MOUNTAIN, in the case of a waiver, by the party waiving
compliance.
8.8 Waivers. The
failure of any party at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later time to enforce
the same. No waiver by any party of any condition, or the breach of
any term, covenant, representation or warranty contained in this Agreement,
whether by conduct or otherwise, in any one or more instances shall be deemed to
be or construed as a further or continuing waiver of any such condition or
breach or a waiver of any other term, covenant, representation or warranty of
this Agreement.
8.9 Counterparts. This
Agreement may be executed simultaneously in two or more counterparts and by
facsimile, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
8.10 Brokers. The
parties hereto, covenant, represent, and warrant that they have not dealt with
any broker or finder in connection with this Agreement or the transactions
contemplated hereby, and no broker is entitled to receive any brokerage
commission, finder's fee, or similar compensation in connection with this
Agreement or the transactions contemplated hereby. Each of the
parties shall indemnify and hold the other parties harmless from and against all
liability, claim, loss, damage, or expense, including reasonable attorney's
fees, pertaining to any broker, finder, or other person with whom such party has
dealt.
8.11 Severability.
If any term, provisions, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
8.12 Independent
Representation. Each of the parties hereto further
acknowledges and agrees that he or it, as the case may be, has been advised by
counsel during the course of negotiations leading up to the execution and
delivery of this Agreement and had significant input in the development of this
Agreement. This Agreement shall not, therefore, be construed more
strictly against any party responsible for its drafting regardless of any
presumption or rule requiring construction against the party whose attorney
drafted this Agreement.
17.
8.13 Publicity. No
party may issue or cause the publication of any press release or other public
announcement with respect to the transactions contemplated by this Agreement
without the written consent of the other parties.
[remainder
of page intentionally left blank; signature page to follow]
18.
IN WITNESS WHEREOF, the parties have
duly executed this Share Exchange Agreement as of the date first above
written.
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Ambermax
IV Corporation
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By:
/s/Xxxxx X. Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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Title:
Director and President
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THE
AMBERMAX STOCKHOLDERS
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/s/Xxxxx
Xxxxxxx
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/s/Xxxxxxx
Xxxxxxx
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/s/Xxxxxx
Xxxxxxxx
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/s/Xxxxxx
Xxxxxxxx
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/s/Xxxxxx
Xxxxxxxx
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/s/Xxxxxx
Xxxxxxxx
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/s/Xxxxx
Xxxxxxx
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/s/Xxxxx
Xxxxxx
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/s/Xxxxx
X.
Xxxxx
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/s/Xxxxx
Xxxxxxxx
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/s/Xxxxx
Xxxxxx
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/s/Xxxxx
Xxxxxx
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/s/Xxxxxxx
Xxxx
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/s/Xxxxxxx
Xxxxxxxxx
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/s/Xxxxx
Xxxxxxx
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/s/Xxxxx
Xxxxx
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/s/Xxxxx
X. Xxxxx
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19.
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/s/Xxxx
Xxxxx
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/s/Xxxxx
Xxxxxx
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/s/Xxxxxxxxx
Xxxxx
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/s/Xxxxxxxx
Xxxxx
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/s/Xxxxxxx
Xxxxxxx
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/s/Xxxxxx
and Lahana Xxxxxxxx
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/s/Xxxxxxxxx
Xxxxxxx
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/s/Xxxxxx
and Xxxx Xxxxx
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/s/Xxxxxxx
Xxxxxx
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/s/Xxxxx
Xxxxxx
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/s/Xxxxxxx
Xxxxxxx
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/s/Xxxx
Xxxxxxxx
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/s/Xxxx
Xxxxxxxx
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/s/Xxxx
Xxxxx
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/s/Xxxxxxx
and Xxxxxxx Xxxxxxxxxxxx
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/s/Xxxx
Xxxxxxxx Revocable Trust
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/s/Xxx
Xxxxxx
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/s/Xxxxxxxx
and Xxxxxx Xxxxxxxx
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/s/Xxxxxxx
Xxxxx
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/s/Xxxxxx
Xxxxxx
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/s/Xxxxx
Xxxxxx
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/s/Xxxx
Xxxxxx
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MOUNTAIN
RENEWABLES, INC
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By:
/s/Xxxxxxx Xxxxxxxxx
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Name:
Xxxxxxx Xxxxxxxxx
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Title:
Director and
President
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20.
