49
AGREEMENT AND PLAN OF MERGER
by and between
AFFORDABLE HOMES OF AMERICA, INC,
and
COMPOSITE INDUSTRIES OF AMERICA, INC.
April 15, 1999
TABLE OF CONTENTS
ARTICLE I
1.1 The Merger 1
1.2 The. Closing 1
1.3 Effective Time of the Merger. 1
1.4 Effects of the Merger 2
(a) Effects ofthe Merger 2
(b) Directors and Officers 2
(c) Articles of Incorporation 2
(d) Bylaws 2
ARTICLE II
EFFECT OF THE MERGER ON THE
CAPITAL STOCK OF Affordable
AND Composite 2
2.1 Effect on Capital stock 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF Composite 3
3.1 Organization and Standing 3
3.2 Subsidiaries 3
3.3 Power and Authority 3
3.4 Capitalization of Composite 4
3.5 Conflicts,Consents and Approvals, 4
3.6 Compliance with Laws 5
3.7 Litigation 5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF Affordable 5
4.1 Organization and Standing 5
4.2 Subsidiaries 5
4.3 Power and Authority 5
4.4 Capitalization of Affordable 6
4.5 Conflicts 6
4,6 Compliance and Laws 7
4.7 Litigation 7
ARTICLE V
COVENANTS OF THE PARTIES 7
5.1 Mutual Covenants 7
(a) General 7
(b) Governmental Matters 7
(c) Notification of Certain Matters 8
5.2 Covenants of Composite 8
(a) Access 8
(b) Conduct of Composite's 0perations 8
5.3 Covenants Affordable 8
(a) Access 8
(b) Conduct of Affordable's Operations 8
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ARTICLE VI
CONDITIONS 8
6.1 Conditions to Obligations of Affordable 8
6.2 Conditions to Obligations of Composite 9
ARTICLE VII
TERMINATION AND AMENDMENT 9
7.1 Termination. 9
7.2 Effect of Termination 9
7.3 Amendment 10
7,4 Extension: Waiver 10
ARTICLE VIII
MISCELLANEOUS 10
8.1 Termination of Representations,
Warranties and Covenants 10
8.2 Notices 10
8.3 Counterparts 10
8.4 Entire Agreement 11
8.5 Third Party Beneficiaries. 11
8.6 Governing Law 11
8.7 Specific Performance 11
8.8 Assignment 11
8.9 Expenses 11
8.10 Severability 11
8.11 Certain Interpretive Matters
and Definitions 12
8.12 No Recourse 12
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AGREEMENT AND PLAN OF MERGER
STATE OF NEVADA )
) SS:
COUNTY OF XXXXX: )
On _______ before me, a Notary Public, personally appeared XX. XXXXXXX X.
XXXXX who is the President of COMPOSITE INDUSTRIES OF AMERICA, INC. and
who is personally known to me(or provided to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within instrument
and acknowledged to me that be executed the same in his authorized
capacities that, by his signatures on the instrument, the person or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS My hand and official seal
/s/ ____________________________
Notary Public
STATE OF NEVADA )
) SS:
COUNTY OF XXXXX: )
On __________ before me, a Notary Public, personally appeared XXXXX XXXXXXXX
who is the President of AFFORDABLE HOMES OF AMERICA, INC. and who is personally
known to me (or proved to me an the basis of satisfactory evidence)to be the
person whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his authorized capacities and that, by his
signatures on the instrument, the person or the entity upon
behalf of which the person acted,executed the instrument.
WITNESS My hand and official seal
/s/ ____________________________
Notary Public
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This Agreement and Plan of Merger (this "Agreement") is made
and entered into as of the 15th day of April, 1999. by and between
Affordable Homes of America, Inc., a Nevada corporation ("Affordable"),
and Composite Industries, Inc., a Nevada corporation ("Composite").
RECITALS:
WHEREAS, Affordable and Composite desire to make certain
representations warranties, covenants and agreements in connection with
the merger of Composite with and into Affordable ("Merger") and to
prescribe various conditions to the consummation thereof:
NOW, THEREFORE,in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained,
the parties hereto intending to be legally bound, hereby agree as follows;
ARTICLE I
THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with Title 7, Chapter 92A
of General Corporation Law ofNcvada(the "NGCL"), Composite shall be merged
with and into Affordable at the Effective Time (as defined). At the Effective
Time, the separate existence of Composite shall cease, an Affordable
shall continue as the surviving corporation (Affordable and Composite are
sometimes hereinafter referred to as "Constituent Entities" and, as the
context require; Affordable is sometimes hereinafter referred to as
the "Surviving Corporation"), and shall continue under the name
Affordable Homes of America, Inc.
1.2 The Closing. Unless otherwise mutually agreed by the parties
hereto the closing of the transactions contemplated hereby (the "Closing")
will take place at the offices of Affordable, at 10:00 a.m., local time,
on May 1, 1999, or on such other business date on which all conditions
to the obligations of the parties hereto shall have been satisfied
or waived in writing by the appropriate party (the "Closing Xxxx").
1.3 Effective Time of the Merger. Subject to the provisions
of this Agreement, the parties hereto shall cause the Merger to be consummated
by filing the require particles of merger with the Secretary of State of the
State of Nevada, as provided in the NGC (the "Articles of Merger"), as soon
as practicable on the Closing Date. The Merger shall become effective upon
such filings or at such time thereafter as is provided in the Articles of
Merger (the "Effective Time").
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1.4 Effects of the Merger.
(a) Effects of the Merger. The Merger shall have effects
as set forth in the applicable provisions of the NGCL.
(b) Directors and Officers. The directors of Affordable and the
offices of Affordable immediately prior to the Effective Time shall, from
and after the Effective Time, be the initial directors and officers
of the Surviving Corporation until their successors have been duly
elected or appointed and qualified, or until their earlier death,
resignation or removal in accordance with the Surviving Corporation's
Articles of incorporation and Bylaws.
(c) Articles of Incorporation. AT the Effective Time and without
any further action on the part of the Constituent entities the
Articles of Incorporation of Affordable shall be the Articles of
Incorporation on of the Surviving Corporation
(d) Bylaws. At the Effective Time and without any further action
on the part of the Constituent Entities, the Bylaws of Affordable
shall be the Bylaws of the Surviving Corporation'
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ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF AFFORDABLE AND COMPOSITE
l.l Effect on Capital Stock. As of the Effective Time and
subject to the provisions of the NGCL. by virtue of the Merger and without
any action on the part of the holder of any shares of common stock par
value $0.001 per share, of Affordable ("Affordable Common Stock")
or common stock, par value $0.001 per shares, of Composite ("Composite
Common Stock"):
(a) One fully paid and non-assessable share of Affordable Common
Stock shall be exchanged for two outstanding shares of Composite Common
Stock (Other than shares of Composite Common Stock held (i) in Composite's
treasury or (ii) directly or indirectly by Composite or its subsidiaries),
subject to the lRegistration Rights Agreement attached as Exhibit"A", in
addition, any outstanding options of Composite's Common Stock shall
be assumed by Affordable on the same ratio basis as the Common Stock
herein.
(b) ALL shares of Composite Common Stock issued and outstanding
immediately prior to the Effective Time that are to be converted into no
shares of Affordable Common Stock pursuant to Section 2.1(n) shall no
longer be outstanding and shall automatically be cancelled and retired
and shall cease to exist. After the Effective Time, until surrendered to
Affordable, each outstanding certificate that prior to the Effective Time
represented share of Composite common stock shall be deemed to evidence
ownership of one share of Affordable Common Stock; provided, however, that
no dividends declared with respect to shares of Affordable Common Stock
shall be paid to the holder of any unsurrendered certificate until such
holder shall surrender such certificate to Affordable, at which time the
holder shall be paid the amount of any dividends, without interest that
theretofore became payable with respect to shares evidenced by such
certificate.
(c) At the Effective Time, all shares of Composite
Common Stock that are held (i) in Composite's treasury or (ii)
directly or indirectly by Composite or its subsidiaries, shall be
cancelled and shall cease to exist and no shares of Affordable Common
Stock or other consideration shall be delivered in exchange therefore.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COMPOSITE
In order to induce Affordable to enter into this Agreement, Composite
hereby represents and warrants to Affordable that the statements
contained in this Article III are true, correct and complete.
III.I Organization and Standing. Composite is a corporation
duly organized validly existing and in good standing under the laws of
the state of Nevada with full power and authority to own, lease, use and
operate its properties and to conduct its business as and where now
owned, leased, used, operated and conducted. Composite is duly qualified
to do business; and in good standing in each jurisdiction in which the
nature of the business conducted by it or the property it owns, leases
or operates makes such qualification necessary, except where the failure
to be so qualified or in good standing in such jurisdiction would not
have a material adverse effect (as defined in Section 8.11(b) on
Composite.
III.2 Subsidiaries. As of the date hereof, Composite does not
own, directly or indirectly, any equity or other ownership interest in
any corporation, partnership, joint venture or other entity or enterprise.
III.3 Power and Authority. Composite has full corporate
power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Composite and the consummation b) Composite
of the transactions contemplated hereby have been duly and validly
approved by the Board of Directors and major stockholders of Composite,
and no other corporate proceedings on the part of Composite are necessary
to approve this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Composite
and assuming the due execution and delivery of this Agreement by the
other parties hereto, constitutes a valid and binding obligation of
Composite enforceable against it in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization moratorium
or other similar laws affecting the enforcement of creditors' rights in
general and subject to general principles of equity (regardless of
whether such enforceability is consideredin a proceeding in equity or at
law).
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111.4 Capitalization of Composite. Composite's authorized
capital stock consists solely of 25,000,000 shares of Composite Common
Stock and 10,000,000 shares of Preferred Stock. As of the date hereof,
13,028,539 shares of Composite Common Stock are issued and outstanding.
There are no issued shares of Preferred Stock outstanding. Each
outstanding share of capital stock of Composite is duly authorized and
validly issued, fully paid and nonassessable and free of any preemptive
rights. There are no outstanding subscriptions,warrants, puts, calls,
agreements, understandings, claims or other commitments or rights of
any type relating to the issuance, sale or transfer by Composite of
any securities of Composite,nor are there outstanding any securities
which arc convertible into or exchangeable for any shares of capital
stock of Composite, and Composite has no obligation of any kind to
issue any additional capital stock.
111.5 Conflicts, Consents and Approvals. Neither the
execution and delivery of this Agreement by Composite nor the
consummation of the transactions contemplated hereby will:
(a) conflict with, or violate any provision of the Articles
of Incorporation of the Bylaws of Composite;
(b) violate, or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which, with the
giving of notice, the passage of time or otherwise, would constitute a
default) under, or entitle any party (with the giving of notice, the
passage of time or otherwise) to terminate, accelerate, modify or call
default under, or result in the termination, acceleration or
cancellation of, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties or assets of
Composite under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, deed of trust, license, contract, undertaking
agreement, lease or other instrument or obligation to which Composite
is a party or by which any of their respective properties or assets may
be bound:
(c) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to Composite or any of their respective
properties or assets; or
(d) require any action or consent or approval of. or review
by, or registration or filing by Composite or any of its affiliates with
any third party or an court, arbitral tribunal, administrative agency
or commission or other governmental or regulatory body, agency,
instrumentality or authority (a "Governmental Authority"),other than
the filings of the Articles of Merger as required by the NGCL;
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III.6 Compliance with Laws. Composite is in compliance with all
applicable laws. statutes, orders, rules, regulations, policies or
guidelines promulgated, or judgments, decisions or orders entered by any
Governmental Authority (collectively, "Applicable Law") relating to it or
its business or properties, except for any such failures to be in
compliance therewith which, in the aggregate, would not have a material
adverse effect on Composite.
III.7 Litigation. There is no suit, claim, action, proceeding
or investigation (an "Action") pending or, to the knowledge of Composite,
threatened against Composite which, individually or in the aggregate
with any other Action, would have a material adverse effect on Composite
is not subject to any outstanding order, writ, injunction
or decree which, individually or in the aggregate, would have a material
adverse effect on Composite. There is no Action pending, or to the
knowledge of Composite, threatened against Composite that questions the
validity of this Agreement or any action taken or to be taken by Composite
in connection with this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AFFORDABLE
In order to induce Composite to enter into this Agreement, Affordable
hereby represents and warrants to Composite that the statements contained
in this Article IV are true, correct and complete.
IV. I Organization and Standing. Affordable is a corporation duly
organized validly existing and in good standing under the laws of the
state of Nevada with full power and authority to own, lease, use and
operate its properties and to conduct its business as and where now
owned, leased, used, operated and conducted. Affordable is duly
qualified to do business and in good standing in each jurisdiction in
which the nature of the. business conducted by it or the property it owns,
leases or operates makes such qualification necessary, except where the
failure to be so qualified or in good standing in such jurisdiction would
not have a material adverse effect (as defined in Section 8.1 l(b)) on
Affordable.
IV. 2 Subsidiaries. As of the date hereof. Affordable does not
own, directly or indirectly, any equity or other ownership interest in any
corporation, partnership, join venture or other entity or enterprise.
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IV. 3 Power and Authority. Affordable has full corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated( hereby. The execution and delivery of this
Agreement by Affordable and the consummation by Affordable of the trans-
actions contemplated hereby have been duly and validly approved by the
Board of Directors of Affordable, and no other corporate proceedings on
the part of Affordable are necessary to approve this Agreement and to
consummate the transaction contemplated hereby. This Agreement has been
duly executed and delivered by Affordable and, assuming the due execution
and delivery of this Agreement by the other parties hereto, constitutes
a valid and binding obligation of Affordable enforceable against it in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights in general and subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
IV.4 Capitalization of Affordable. Affordable's authorized
capital stock consists solely of 20.000,000 sbares of Affordable Common
Stock, As of the date hereof, approximately 10,428,572 shares of
Affordable Common Stock are issued and outstanding. Each outstanding
share of capital stock of Affordable is duly authorized and validly
issued, fully paid and nonassessable and free of any preemptive rights.
There are no outstanding subscriptions, options, warrants, puts, calls,
agreements, understandings, claims or other commitments or rights of any
type relating to the issuance, sale or transfer by Affordable ol any
securities of Affordable, nor are there outstanding any securities which
are convertible into or exchangeable for any shares of capital stock of
Affordable, and Affordable has no obligation of any kind to issue any
additional capital stock.
IV. 5 Conflicts, Consents and Approvals. Neither the execution
and deliver of this Agreement by Affordable nor the consummation of the
transactions contemplate hereby will:
(a) conflict with, or violate any provision of the Articles of
Incorporation or the Bylaws of Affordable.
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(b) violate, or conflict with, or result in a breach of any
provision of,or constitute a default (or an event which, with the giving
of notice the passage of time ( otherwise, would constitute a default)
under, or entitle any party (with the giving of notice, the passage of
time or otherwise) to terminate, 'accelerate, modify or call default under,
or result in the termination, acceleration or cancellation of, or result
in the creation of any lien, security interest, charge or encumbrance upon
any of the properties or assets of Affordable under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of
trust, license, contract, undertakini agreement, lease or other instrument
or obligation to which Affordable is a party or by which any of its
properties or assets may be bound;
(c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Affordable or any of their respective properties
or assets; or
(d) require any action or consent or approval of, by review by,
registration or filing by Affordable or any of its affiliates with any
third party or a Governmental Authority, other than the filings of the
Articles of Merger as required the NGCL;
IV.6 Compliance with Laws. Affordable is in compliance with
all Applicable Laws relating to it or its business or properties,
except for any such failures to be in compliance therewith which, in
the aggregate, would not have a material adverse effect on Affordable.
IV. 7 Litigation. There is no Action pending or, to the
knowledge of Affordable, threatened against Affordable which,
individually or in the aggregate with any other Action, would have
a material adverse effect on Affordable. Affordable is not subject
to any outstanding order, writ, injunction or decree which, individually
or in the aggregate, would have a material adverse effect on Affordable.
There is no Action pending, or to the knowledge of Affordable,
threatened against Affordable that questions the validity of this
Agreement or any action taken or to be taken by Affordable in
connection with this Agreement.
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ARTICLE V
COVENANTS OF THE PARTIES
The parties hereto agree as follows with respect to the period
from and after the execution of this Agreement.
V.I Mutual Covenants,
(a) General. Each of the parties shall use its commercially
reasonable efforts to take all action and to do all things necessary,
proper or advisable to consummate the transactions contemplated by this
Agreement as promptly as possible (including, without limitation, using
its commercially reasonable efforts to cause the conditions set forth in
Article VI for which they are responsible to be satisfied as soon as
reasonably practicable and to prepare, execute and deliver such further
instruments and take or cause to be taken such other and further action
as any other party hereto shall reasonably request).
(b) Governmental Matters. Each of the parties shall use its
reasonable efforts to take any additional action that may be necessary,
proper or advisable in connection with any other notices to, filings with,
and authority, consents and approvals of any Governmental Authority that
it may be required to give, make or obtain.
(c) Notification of Certain Matters. Each of the parties shall
give prompt notice to the other parties of (i) the occurrence or non-
occurrence of any event which would cause any representation or warranty
contained in the Agreement made by such party to be untrue or inaccurate
at or prior to the Closing Date an (ii) any material failure of such
party to comply with or satisfy any covenant, condition or agreement to
be complied with or satisfied by it hereunder.
V.2 Covenants of Composite.
(a) Access. From and after the date of this Agreement
until the Closing Date (or the termination of this Agreement),
Composite shall permit representatives of Affordable to have
reasonable access to Composite's officers, employees, premises,
properties, books, records, contracts, tax records and documents.
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(b) Conduct of Composite's Operations. During the period
from the date of this Agreement to the Closing Date, Composite shall
conduct its operations in the ordinary course consistent with past
practice, except as expressly contemplated by this Agreement and the
transactions contemplated hereby and shall use its commercially
reasonable efforts to maintain and preserve its business organization
and its material rights and franchises and to retain the services of
its officers and key employees and maintain relationships with customers
suppliers and other third parties to the end that their goodwill and
ongoing business shall not be impaired in any material respect.
V. 3 Covenants Affordable.
(a) Access. From and after the date of this Agreement
until the Closing Date (or the termination of this Agreement),
Affordable shall permit representatives of Composite to have reasonable
access to Affordable's officers, employees, premises, properties, books,
records, contracts, tax records and documents.
(b) Conduct ofAffordable's Operations. During the period
from the date of this Agreement to the Closing Date, Affordable shall
conduct its operations in the ordinary course consistent with past
practice, except as expressly contemplated by this Agreement and the
transactions contemplated hereby and shall use its commercially
reasonable efforts to maintain and preserve its business organization
and its material rights and franchises and to retain the services of
its officCTs and key employees and maintain relationships with customers,
suppliers and other third parties to the end that their goodwill and
ongoing business shall not be impaired in any material respect.
ARTICLE VI
CONDITIONS
VI. I Conditions to Obligations of Affordable. The
obligations of Affordable to perform the transactions contemplated by
this Agreement to be performed by them are subject to the satisfaction,
contemporaneously with, or prior to, the Closing, of each of the
following conditions (all or any of which may be waived in whole or in
part by Affordable):
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(a) The representations and warranties of Composite contained
herein shall be true and correct in all material respects on and as of
the Closing Date as though made on and as of such date;
(b) Composite shall have performed in all material
respects each covenant to be performed by it on or prior to the
Closing Date;
(c) Composite shall have presented an audited financial
statement concurrent with closing that reflects substantially the
same information as provided by Composite on an unaudited basis;
and.
VI. 2 Conditions to Obligations of Composite. The obligations
of Composite to perform the transactions contemplated by this Agreement
to be performed by it are subject to the satisfaction, contemporaneously
with, or prior to, the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by Composite):
(a) the representations and warranties of Affordable
contained herein shall be true and correct in ill material respects on
and as of the Closing Date as though made on and as of such date; and
(b) Affordable shall have performed in all material respects,
each covenant to be performed by it on or prior to the Closing Date.
ARTICLE VII
TERMINATION AND AMENDMENT
VII. I Terminalion, This Agreement may be terminated at any time
prior to the Closing Date:
(a) by mutual consent of Affordable and Composite;
(b) by either Affordable or Composite if any permanent
injunction or other order or decree of a court or other competent
Governmental Authority preventing the consummation of the transactions
contemplated hereby shall have become final and nonappealable;
(c) by either Affordable or Composite if the Closing shall not
have occurs before June 5, 1998; provided that the right to terminate
this Agreement under this Section 7.1 (c) shall not be available to any
party whose failure to perform any material covenant or obligation under
this Agreement has been the cause of or resulted in the failure
of the Closing to occur on or before such date; or
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(d) by Affordable or Composite (so long as the terminating party
is not then in material breach of any representation, warranty,
covenant or other agreement contained herein) if there shall have been
a material breach of any of the covenants or agreements or any of the
representations or warranties set forth in this Agreement on the part
of the other parties, which breach is not cured within 10 days following
written notice given by the terminating party to the party committing
such breach.
Vll .2 Effect ofTerminalion. In the event of the termination
of this Agreement pursuant to Section'7.1, this Agreement, except for the
provisions of Sections 7.2 and 8.9, shall become void and have no effect,
without any liability on the part of any party or its directors,
officers, employees or stockholders. Notwithstanding the foregoing,
nothing in this Section 7.2 shall relieve any party to this Agreement of
liability for a breach of any covenant or agreement set forth in this
Agreement.
Vll. 3 Amendment. This Agreement may be amended by a written
instrument signed by the parties hereto, but no amendment shall be made
which by law requires further approval by the stockholders of Composite
or Affordable without such ftirlher approval.
Vll .4 Extension; Waiver. At any time prior to the Closing Date,
Composite and Affordable may, to the extent legally allowed, (a) extend
the time for the performance of any of the obligations or other acts of
such party, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto
and (c) waive compliance with any of the agreements or conditions contained
herein. Any agreement on the part of a party hereto to any such extension
or waiver shall be valid only if set forth in a written instrument signed
on behalf of such party.
ARTICLE VIII
MISCELLANEOUS
VIII.I Termination of Representalionf, Warranties and Covenants.
The representatioas, warranties and covenants made berein by the parties
hereto shall cennuiate the Effective Tune and shall be of no further
force or effect.
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V111.2 Notices, All notices and other communications hereunder
shall be writing and shall be deemed given upon receipt if delivered
personally, telecopied (which confirmed) or dispatched by a nationally
recognized overnight courier service to the parties the following
addresses (or at such other address for a party as shall be
specified by like notice):
(a) if to Composite:
Composite Industries, Inc.
0000 X. Xxxxxxxx Xxx. Xxxx X-0
Xxx Xxxxx, Xxxxxx 00000
Attention: President
(b) if to Affordable:
Affordable Homes of America, Inc.
0000 X. Xxxxxxxx Xxx. Xxxxx 0-0
Xxx Xxxxx, Xxxxxx 00000
Attention: President
VIII. 3 Counterparts, This Agreement may be executed in
counterparts, which together shall constitute one and the same Agreement.
The parties may execute more than one copy of the Agreement, each of
which shall constitute an original.
VIII. 4 Entire Agreement. This Agreement (including the
documents and the instruments referred io herein) constitutes the entire
agreement among the parties and supersede all prior agreements and
understandings, agreements or representations by or among the parties,
written and oral, with respect to the subject matter hereof and thereof.
VIII.5 Third Party Beneficiaries, Nothing in this Agreement,
express or implied, is intended or shall be constnied to create any third
party beneficiaries.
VIII.6 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Nevada without
regard to principles of conflicts of law.
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VIII.7 Specific Performance. The transactions contemplated by
this Agreement are unique and monetary damages would not be an adequate
remedy for a breach hereof. Accordingly, each of the parties acknowledges
and agrees that, in addition io all other remedies to which it may be
entitled, each of the parties hereto is entitled to a decree of specific
performance, provided that such party is not in material default hereunder.
VIII.8 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence
this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
V111.9 Expenses. All costs and expenses incurred in
connection with the consummation of the transactions contemplated by
this Agreement by Affordable and its representatives shall be paid by
Affordable and all costs and expense incurred in connection with the
consummation of the transactions contemplated by this Agreement by
Composite and its representatives shall be paid by Composite.
VIII. 10 Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or enfor-
ceability of any of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
VIII. 11 Certain interpretive Matters and Definitions.
(a) Unless the context otherwise requires, (i) each term
defined in this Agreement has the meaning assigned to it, (ii) "or" is
disjunctive but not necessarily exclusive and (iii) words in the singu-
lar include the plural and vice yersa. All references to "$" or dollar
amounts will be to lawful currency of the United States of America.
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(b) When a reference is made in this Agreement to an Article,
Section or Schedule, such reference shall be to an Article, Section or
Schedule of this Agreement unless otherwise indicated. The headings and
the table of contents contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. For the purposes of this Agreement,
a "material adverse effect" shall mean, as to any party, a material
adverse effect on the assets, liabilities, results of operations,
business or financial condition of such party and its subsidiaries,
taken as a whole, or on such parry's ability to consummate the
transactions contemplated hereby.
(c) No provision of this Agreement will be interpreted in
favor of, or against, either of the parties hereto by reason of the
extent to which either such party or its counsel participated in the
drafting thereof or by reason of the extent to which any such provision
is inconsistent with any prior draft hereof or thereof.
VIII. 12 No Recourse. Notwithstanding any of the terms or
provisions of this Agreement, Affordable agrees that neither it nor any
person acting on its behalf may assert any claims or causes of action
against any officer, director or stockholder of Composite in connection
with or arising out of this Agreement or the transactions contemplated
hereby. Notwithstanding any of the terms or provisions of this Agreement,
Composite agrees that neither it nor any person acting on its behalf
may assert any claims or causes of action against any officer, director
or stockholder of Affordable in connection with or arising out of this
Agreement or the transactions contemplated hereby.
ARTICLES OF MERGER
OF
COMPOSITE INDUSTRIES OF AMERICA, INC.,
a Nevada corporation
and
AFFORDABLE HOMES OF AMERICA, INC.,
a Nevada corporation,
(The Survivor Corporation)
67
The undersigned entities, COMPOSITE INDUSTRIES OF AMERICA, INC.,
a Nevada corporation ("CIA").and AFFORDABLE HOMES OF AMERICA, INC.,
a Nevada corporation("AHOA"), do hereby certify:
1. COMPOSITE INDUSTRIES OF AMERJCA, INC. is a corporation duly
organized and validly existing under the laws of the State of Nevada.
2. AFFORDABLE HOMES OF AMERICA, INC. is a corporation duly organized
and validly existing under the laws of the State ofNevada.
3. CIA and AHOA are parties to a Merger Agreement pursuant to
which CIA will be merged with and into AHOA. AHOA will be the
surviving corporation in the merger.
4. The Articles of Incorporation and Dylaws of AHOA as existing prior
to the effective date ofthe merger, shall continue in full force as
the Articles of Incorporation and Bylaws of the surviving corporation.
5. The complete executed Merger Agreement dated as of April 15, 1999,
which sets forth the plan of merger providing for the merger of CIA
with and inco AHOA is on file at the corporate offices of AHOA.
6.A copy ofthe Merger Agreement will be ftimished by AHOA on request
and without cost to any stockholder of any corporation which is a
party to the merger.
7. The Plan of Merger as set forth in the Merger Agreement has been
duly adopted by the Board of Directors and a majority of the
Shareholders of CIA and AHOA.
8. The manner in which the exchange of issued shares of CIA shall be
affected is set forth in the Merger Agreement.
IN WITNESS WHEREOF, the undersigned have executed these Articles
of Merger at Las Vegas, Nevada on ________
COMPOSITE INDUSTRIES OF AMERICA, AFFORDABLE HOMES OF AMERICA. INC.
A Nevada Corporation A Nevada Corporation
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxxxxx
------------- ---------------
Xxxxxxx Xxxxx Xxxxx Xxxxxxxxx
President President
68
IN WITNESS WHEREOF, the parties have signed this Agreement
as of the date First written above.
COMPOSITE INDUSTRIES, INC.
By: /s/ Xxxxxxx Xxxxx
-------------
Xxxxxxx Xxxxx
President
AFFORDABLE HOMES OF AMERICA. INC.
By: /s/ Xxxxx Xxxxxxxx
--------------
Xxxxx Xxxxxxxx
President
