EXHIBIT NO. 10.1
SHARE EXCHANGE AGREEMENT
THIS AGREEMENT (the "Agreement") is dated as of June 22, 2002, between
B&B Capital Group, Inc., a Florida corporation ("B&B"), The American Life and
Annuity Company, Inc., a Tennessee corporation ("American"), and the
shareholders of American set forth on Exhibit A attached hereto and incorporated
herein by such reference (the "Shareholders").
PREAMBLE
WHEREAS, B&B is a corporation duly organized and existing under the
laws of the State of Florida, and having authorized capital stock consisting of
100,000,000 shares of common stock, par value $.001 per share, and 5,000,000
shares of preferred stock, par value $.001 per share, of which 50,150 shares of
common stock and no shares of preferred stock are issued and outstanding; and
WHEREAS, American is a corporation duly organized and existing under
the laws of the State of Tennessee, having authorized capital stock consisting
of 5,000,000 shares of common stock, par value $.35 per share and 5,000,000
shares of preferred stock, par value $.35 per share; and
WHEREAS, the Shareholders own 319,794 shares of the common stock of
American (the "American Common Stock"), which represents 100% of the issued and
outstanding shares of capital stock of American; and
WHEREAS, the laws of the States of Florida and Tennessee permit the
Shareholders to exchange their shares of American Common Stock for shares of
common stock of B&B ("B&B Common Stock"); and
WHEREAS, it is intended that this transaction be a tax-free exchange
pursuant to the provisions of the Internal Revenue Code, as amended; and
WHEREAS, as a result of this Agreement, the parties hereto intend that
American will be a wholly-owned subsidiary of B&B, and B&B will be the parent
corporation of American.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants herein contained, as of the "Effective Date," as
hereinafter defined, it is agreed that the Shareholders shall exchange their
shares of American Common Stock for shares of B&B Common Stock, subject to the
terms and conditions set forth and the mode of carrying it into effect as are
and shall be as follows:
1. RECITALS. The above recitals are true, correct and are herein
incorporated by reference.
2. EXCHANGE OF SHARES. The Shareholders hereby agree to transfer to B&B
at the Closing referred to in Section 3 below all of the shares of American
Common Stock currently held of record by the Shareholders in exchange for shares
of B&B Common Stock, and B&B agrees to deliver to each of the Shareholders a
certificate representing shares of the B&B Common Stock so acquired on the basis
of one share of B&B Common Stock for each share of American Common Stock so
exchanged.
The Shareholders agree to deliver, as applicable, any certificates
representing the shares of American Common Stock held by the Shareholders as set
forth above to B&B on the Closing Date. The certificate to be delivered by the
Shareholders at the Closing shall be in negotiable form, and the certificate
delivered by B&B at the Closing shall be subject to restrictions on
transferability pursuant to Federal and state securities laws including, but not
limited to, Rule 144 of the Securities Act of 1933, as amended (the "Securities
Act") or as applicable.
3. CLOSING DATE. The closing ("Closing") shall be held on the date
hereof or such other date and time as may be agreed upon by the parties
("Closing Date").
4. EFFECTIVE DATE. The "Effective Date" shall be the Closing Date.
5. REPRESENTATIONS OF AMERICAN. American hereby makes the following
representations and warranties to B&B, each of which is true as of the date
hereof and will be true as of the Closing Date with the same effect as though
such representations and warranties had been made on the Closing Date:
(a) American is a corporation duly organized and existing
under and by virtue of the laws of the State of Tennessee, and is in good
standing under the laws thereof with an authorized capitalization of consisting
of 5,000,000 shares of common stock, par value $.35 per share and 5,000,000
shares of preferred stock, par value $.35 per share of which 319,794 shares of
common stock and no shares of preferred stock are issued and outstanding, with
100% of the issued and outstanding American Common Stock held by the
Shareholders. There are no outstanding options, contracts, calls, commitments or
demands of any character relating to the authorized but unissued capital stock
of American, except as set forth on Schedule 5a hereto.
(b) The shares of American Common Stock to be exchanged at the
Closing are validly issued, fully paid and non-assessable.
(c) The execution and delivery of this Agreement by American
and the performance by American of its covenants and undertakings hereunder have
been duly authorized by all requisite corporate action, and American has the
full corporate power and authority to enter into this Agreement and to perform
the covenants and undertakings to be performed by it hereunder.
(d) American has the corporate power to carry on its business
as now
2
conducted. There has been no material adverse change in the condition of
American since the date of organization. To the best of the knowledge of
American, the only changes in the financial condition of American since said
date are those arising from the normal and regular conduct of the business of
American.
(e) There is no litigation, governmental proceeding or
investigation threatened or in respect to American which could materially affect
American, its business and operations. Except for the approval of the Tennessee
Department of Insurance, which such approval American believes will be granted,
there are government or other approvals or filings necessary to consummate the
exchange herein contemplated.
(f) Neither the execution nor the delivery of this Agreement,
nor the consummation of the transaction herein contemplated, nor compliance with
the terms hereof, will conflict with or result in a breach of any of the terms,
conditions or provisions of Articles of Incorporation or the Bylaws of American,
as amended, any agreement or instrument to which American is now a party or by
which its assets are bound.
6. REPRESENTATIONS OF THE SHAREHOLDERS. Each of the Shareholders
severally and not jointly represent, warrant and agree that:
(a) The Shareholder is the beneficial owner of the shares of
American Common Stock set forth opposite his/her/its respective name on Exhibit
A attached hereto. The shares of American Common Stock to be transferred by the
Shareholder to B&B hereunder are free and clear of all voting trusts,
agreements, arrangements, encumbrances, liens, claims, equities and liabilities
of every nature and the Shareholder is conveying clear and unencumbered title
thereto to American.
(b) The Shareholder does not own, nor does the Shareholders
know of any other person, corporation or firm that owns any material interest in
any property, invention, license, patent, patent application, copyright, trade
secret or trade-xxxx used by American or relating in any way to its business.
(c) There are no agreements to which Shareholder is a party
nor does the Shareholder know of any other agreements that in any way materially
restrict or impinge upon the business of American or the transfer of the shares
of American Common Stock contemplated hereby.
(d) The Shareholder has (i) such knowledge and experience in
financial, investment and business matters that he/she/is capable of evaluating
the merits and risks of the prospective investment in the securities of B&B, and
(ii) consulted with such independent legal counsel or other advisers as the
Shareholder has deemed appropriate to assist he/she/it in evaluating the
proposed investment in B&B.
(e) The Shareholder represents that he/she/it has adequate
means of providing for his/hers/its current financial needs and possible
personal contingencies and
3
has no need for liquidity of investment in B&B and can afford to hold
unregistered securities for an indefinite period of time.
(f) The Shareholder has been afforded the opportunity to ask
questions of, and receive answers from the officers and/or directors of each B&B
and American acting on their respective behalf concerning the terms and
conditions of this transaction and to obtain any additional information, to the
extent that either company possesses such information or can acquire it without
unreasonable effort or expense, necessary to verify the accuracy of the
information furnished; and the Shareholder has availed himself/herself/itself of
such opportunity to the extent the Shareholder considers appropriate in order to
permit the undersigned to evaluate the merits and risks of an investment in B&B.
(g) The Shareholder acknowledges that neither B&B nor American
are making any investment or other recommendations to the Shareholder concerning
the transactions herein contemplated.
7. REPRESENTATIONS OF B&B. B&B hereby makes the following
representations and warranties to the Shareholders and American, each of which
is true as of the date hereof and will be true as of the Closing Date with the
same effect as though such representations and warranties had been made on the
Closing Date:
(a) B&B is a corporation duly organized and existing under and
by virtue of the laws of the State of Florida, and is in good standing under the
laws thereof with an authorized capitalization of consisting of 100,000,000
shares of common stock, par value $.001 per share and 5,000,000 shares of
preferred stock, par value $.001 per share of which 50,150 shares of common
stock and no shares of preferred stock are issued and outstanding, with 100% of
the issued and outstanding B&B Common Stock held by the B&B shareholders. There
are no outstanding options, contracts, calls, commitments or demands of any
character relating to the authorized but unissued capital stock of B&B.
(b) The shares of B&B Common Stock to be issued to the
Shareholders at the Closing will be validly issued, fully paid and
non-assessable.
(c) The execution and delivery of this Agreement by B&B and
the performance by B&B of its covenants and undertakings hereunder have been
duly authorized by all requisite corporate action, and B&B has the full
corporate power and authority to enter into this Agreement and to perform the
covenants and undertakings to be performed by it hereunder.
(d) B&B has never commenced operations. There is no
litigation, government proceeding or investigation or in respect to B&B which
could materially affect B&B.
(c) The copies of the Articles of Incorporation and the Bylaws
of B&B heretofore delivered to the Shareholders are true and correct copies.
4
(d) Neither the execution nor the delivery of this Agreement,
nor the consummation of the transaction herein contemplated, nor compliance with
the terms hereof, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Articles of Incorporation or the Bylaws of B&B,
as amended, or any agreement or instrument to which B&B is now a party.
8. CONDITIONS OF CLOSING. All of the obligations of B&B under this
Agreement are subject to the fulfillment, prior to or on the Closing Date set
forth in Section 3 of this Agreement, of each of the following conditions:
(a) Delivery by the Shareholders of the following:
(i) Certificates representing the shares of American
Common Stock, endorsed in blank and with signatures guaranteed by a bank or
trust company, and
(ii) Delivery by B&B of the certificates for the
shares of B&B Common Stock as set forth on Exhibit A attached hereto.
(b) American shall have obtained such consents and approvals
as are necessary from the Tennessee Department of Insurance or such other
regulatory body as are necessary for the continued conduct of American's
business following the share exchange.
(c) T. Xxxx Xxxxx, the sole officer and director of B&B, shall
tender his resignation as an officer and director of B&B and the following
individuals will be elected or appointed to the positions set forth opposite
their respective names below:
Name Positions
Xx. Xxxxxx X. Xxxxxx, Xx. Chairman of the Board
Xxxxxxx X. Xxxxx, III President, CEO and director
Xxxx X. Xxxxxxx Secretary, Treasurer and director
Xxxxx X. Xxxxxxxx Director
Xx. Xxxx X. Xxxx Director
9. INVESTMENT PURPOSE. The Shareholders represent that each are
acquiring the shares of B&B Common Stock to be delivered at the Closing solely
for investment and not for distribution or resale. By such representation, the
Shareholder means that no other person has a beneficial interest in the shares
of B&B Common Stock to be issued at the Closing. The Shareholder does not intend
to dispose of all or any part of the shares of B&B Common Stock except in
compliance with the provisions of the Securities Act and applicable state
securities laws. The Shareholders acknowledge that the shares of B&B Common
Stock to be issued at Closing have not been registered under the Securities Act
5
in reliance on an exemption available under the rules and regulations of the
Securities Act, and further understands that the undersigned is acquiring the
shares of B&B Common Stock without being furnished any offering material. The
Shareholder hereby agrees that the following or similar legend will be placed on
the face of the certificates evidencing shares of B&B Common Stock if required
in compliance with the Securities Act or state securities laws:
"These securities have not been registered under the Securities Act of
1933, as amended ("Act"), or any state securities laws and may not be
sold or otherwise transferred or disposed of except pursuant to an
effective registration statement under the Act and any applicable state
securities laws, or an opinion of counsel satisfactory to counsel to
the issuer that an exemption from registration under the act and any
applicable state securities laws is available."
10. REPRESENTATIONS TO SURVIVE CLOSING. All the terms, conditions,
warranties, representations and guarantees contained in this Agreement shall
survive delivery of the shares of American Common Stock transferred hereunder at
the Closing and any investigations made by or on behalf of B&B at any time.
11. SHAREHOLDER CONSENT TO POST-CLOSING ACTIONS. By executing this
Agreement, in addition to consenting to the share exchange and related
transactions herein contemplated, each Shareholder hereby irrevocable grants
his/her/its written consent pursuant to Section 607.0821 of the Florida Business
Corporations Act to an amendment to B&B's articles of incorporation changing
B&B's corporate name to "American Life Holding Company, Inc."
12. FUTURE ISSUANCE OF PREFERRED STOCK WITH SUPER MAJORITY VOTING
RIGHTS. Following the Closing, as consideration for Xx. Xxxxxx X. Xxxxxx, Xx.
providing B&B with a $250,000 line of credit, B&B will issue to Xx. Xxxxxx a
series of to-be-created shares of preferred stock, which such series will
consist of 250,000 shares and be designated as Series A Preferred Stock (the
"Series A Preferred"). It is anticipated that the designations, rights and
preference of the Series A Preferred will include the following provisions:
i. the stated value of each share is $ 1.00 per share,
ii. the shares will not be redeemable without the consent
of the holders of a majority of the issued and
outstanding shares of Series A Preferred,
iii. each share of Series A Preferred will be convertible
into shares of B&B's Common Stock at B&B's option at
a ratio to be agreed upon by the B&B and the holder
at the time of conversion,
6
iv. the shares of Series A Preferred will not pay any
dividends,
v. each share of Series A Preferred will carry voting
rights equal to 75 votes, and
vi. so long as the shares of Series A Preferred are
outstanding, B&B will be prohibited from taking
certain actions without the approval of the holders
of a majority of the issued and outstanding shares of
Series A Preferred, including:
- selling, conveying, or otherwise disposing
of or encumbering all or substantially all
of B&B' property or business on a
consolidated basis or merging into or
consolidating with any other corporation
(other than a wholly-owned subsidiary
corporation) or effecting any transaction or
series of related transactions in which more
than 50% of the voting power of B&B is
transferred or disposed of;
- altering or changing the rights, preferences
or privileges of shares of Series A
Preferred;
- increasing or decreasing the total number of
authorized shares of Series A;
- authorizing or issuing, or obligating B&B to
issue, any other equity security, including
any other security convertible into or
exercisable for any equity security having
rights, preferences or privileges over, or
being on a parity with or similar to, the
Series A Preferred ;
- redeeming, purchasing or otherwise acquiring
(or paying into or setting aside for a
sinking fund for such purpose) any of B&B's
securities;
- amending B&B's articles of incorporation or
bylaws;
- changing the authorized number of its
directors; or
- declaring, ordering or paying any dividends
on any class of B&B's securities.
B&B's articles of incorporation grant its Board of Directors the right
to establish a series of preferred stock with such designations, rights and
preferences as the Board of Directors may determine in their sole discretion
without shareholder consent. Accordingly, the designations, rights and
preferences of the Series A Preferred, when ultimately
7
finalized, may differ materially from those set forth above, and the consent of
the Shareholders is not required to finalize the designations, rights and
preferences of the Series A Preferred, nor to authorize its issuance.
13. NOTICES. Any notice or communication necessary or desirable
hereunder shall be considered sufficient and delivery thereof shall be deemed
complete if delivered in person or mailed by registered mail to:
If to B&B and/or Xxxxx: c/o 000 Xxxxx Xxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: T. Xxxx Xxxxx, Esq.
If to American: 0000 Xxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, III, President
If to the Shareholders: to the addresses on the books and records
of American
or to such other address as either party may hereafter specify in writing as her
or its own address to the other party.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements and understandings of the parties in
connection herewith.
15. SEVERABILITY. The Shareholders and American hereby agree and affirm
that none of the above provisions is dependent on the validity of any other
provision and invalidity as to any provision or any part thereof shall not
affect any other provision.
16. CONSTRUCTION AND ENFORCEMENT. This Agreement shall be construed in
accordance with the laws of the State of Florida, without and application of the
principles of conflicts of laws. If it becomes necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
and such legal action results in a final judgment in favor of such party
("Prevailing Party"), then the party or parties against whom said final judgment
is obtained shall reimburse the Prevailing Party for all direct, indirect or
incidental expenses incurred, including, but not limited to, all attorney's's
fees, court costs and other expenses incurred throughout all negotiations,
trials or appeals undertaken in order to enforce the Prevailing Party's rights
hereunder. Any suit, action or proceeding with respect to this Agreement shall
be brought in the state or federal courts located in Broward County in the State
of Florida. The parties hereto hereby accept the exclusive jurisdiction and
venue of those courts for the purpose of any such suit, action or proceeding.
The parties hereto hereby irrevocably waive, to the fullest extent permitted by
8
law, any objection that any of them may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this
Agreement or any judgment entered by any court in respect thereof brought in
Broward County, County Florida, and hereby further irrevocably waive any claim
that any suit, action or proceeding brought in Broward County, Florida, has been
brought in an inconvenient forum.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
B&B Capital Group, Inc.
By:
---------------------------------------------
T. Xxxx Xxxxx, President
The American Life & Annuity Company, Inc.
By:
----------------------------------------------
Xxxxxxx X. Xxxxx, III
--------------------------------------------------
Xxxxxxx X. Xxxxxx
SHAREHOLDERS:
--------------------------------------------------
Xx. Xxxxxx X. Xxxxxx, Xx.
--------------------------------------------------
Xxxxxxx X. Xxxxx, III
--------------------------------------------------
Xxxx X. Xxxxxxx
--------------------------------------------------
Xx. Xxxx X. Xxxx
--------------------------------------------------
Xxxxx X. Xxxxxxxx
9
--------------------------------------------------
Xxx Xxxxxxxx
--------------------------------------------------
Xx. Xxxxxx X. Xxxxxx, Xx. Trustee for the Xxxxxxx
X. Xxxxxx Irrevocable Trust
--------------------------------------------------
Xx. Xxxxxx X. Xxxxxx, Xx. Trustee for the Xxxxxx
X. Xxxxxx Irrevocable Trust
--------------------------------------------------
Xx. Xxxxxx X. Xxxxxx, Xx. Trustee for the Xxxxx
X. Xxxxxx Irrevocable Trust
--------------------------------------------------
Xx. Xxxxxx X. Xxxxxx, Xx. Trustee for the
Xxxxxxxx X. Xxxxxx Irrevocable Trust
--------------------------------------------------
Xx. Xxxx X. Xxxx f/b/o Xxxx X. Xxxx
--------------------------------------------------
Xxxx X. Bible
--------------------------------------------------
Xxxxx X. Xxxxxxxxxx, Xx.
--------------------------------------------------
Xxxxxxx X. Xxxxx Xx.
--------------------------------------------------
Xxxxxxx X. Xxxxx
10
--------------------------------------------------
Xxxxxx Xxxxxxxx
--------------------------------------------------
Xx. Xxxxx X. Xxxxxx, III
--------------------------------------------------
Xxxxx Xxx, Trustee, Xxxxxxxx & Xxxxxxxx
XXXXX
--------------------------------------------------
Xxxxx X. Xxxxxxx
--------------------------------------------------
Xxxxx X. Xxxx
--------------------------------------------------
Xxxxxxx X. Xxxxxx
--------------------------------------------------
Xxxxxxx Xxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxxxx
--------------------------------------------------
Xxxx X. Xxxxxx
--------------------------------------------------
Xx. Xxxxx X. Xxxxxx, III
--------------------------------------------------
Xxxxx X. Xxx
11
--------------------------------------------------
Xxxx X. Xxxxxx
--------------------------------------------------
Xxxxxxxx X. Xxxxx
12
