SHARE EXCHANGE AGREEMENT by and among Integrated Energy Solutions, Inc. a Nevada corporation; Atlantic-Pacific, LLC, an Indiana limited liability company and Robert Rosinski, the sole member of Atlantic-Pacific, LLC Dated as of November 20, 2014
EXHIBIT 10.2
by and among
Integrated Energy Solutions, Inc.
a Nevada corporation;
Atlantic-Pacific, LLC,
an Indiana limited liability company
and
Xxxxxx Xxxxxxxx,
the sole member of
Atlantic-Pacific, LLC
Dated as of November 20, 2014
This SHARE EXCHANGE AGREEMENT (the “Agreement”) is entered into as of November 20, 2014 by and among Integrated Energy Solutions, Inc., a Nevada corporation located at 000 Xxxxxx Xxxxxx, Xxxxx 0 Xxxxxx Xxxxxx, XX 00000 (the “Company” or “Integrated Energy”), Atlantic-Pacific, LLC, an Indiana limited liability company located at 0000 Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000 (“Atlantic-Pacific”) and Xxxxxx Xxxxxxxx, an individual and the sole member of Atlantic Pacific (the “Member” and together with the Company and Atlantic-Pacific, the “Parties” and each, a “Party”).
WHEREAS, the Member owns 100% of the member interests in Atlantic-Pacific representing 100% of the equity interest in Atlantic-Pacific (the “Shares”);
WHEREAS, the Member believes that it is in his best interests to exchange (the “Exchange”) all of the Shares for the Exchange Shares (as defined herein);
WHEREAS, the Company believes it is in its best interests and that of its shareholders to acquire all of the Shares in exchange for the issuance of the Exchange Shares, all upon the terms and subject to the conditions set forth in this Agreement; and
WHEREAS, it is the intention of the Parties that the Exchange qualify as a tax-free organization under Section 368(a)(1)(B) of the United States Internal Revenue Code of 1986, as amended, and a transaction in securities exempt from registration or qualification under the Securities Act of 1933, as amended (the “Securities Act”).
NOW THEREFORE, on the stated premises and for and in consideration of the mutual covenants and agreements hereinafter set forth and the mutual benefits to the Parties to be derived herefrom, and intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE I
SHARE EXCHANGE
Section 1.01
Incorporation of Recitals. The recitals set forth hereinabove are incorporated herein by reference with the same force and effect as if fully set forth hereinafter.
Section 1.02
The Exchange.
(a)
On the terms and subject to the conditions set forth in this Agreement, the Member shall assign, transfer and deliver, free and clear of all Liens (as defined herein), all of the Shares, which shall be free and clear of any and all Liens, in exchange for that certain number of shares (the “Exchange Shares”) of Series B Preferred Stock of the Company, par value $0.001 per share, designated in accordance with the Certificate of Designations, Rights and Preferences, substantially in the form attached hereto as Exhibit A, that is equal to ten (10%) percent of the total number of shares of Series B Preferred Stock that the Company is authorized to issue.
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(b)
As the result of the Exchange, (i) Integrated Energy shall acquire 100% of the membership interests of Atlantic-Pacific; (ii) Atlantic-Pacific shall become a wholly owned subsidiary of Integrated Energy and (iii) the Member shall be entitled to receive the Exchange Shares. Further, following the Exchange, upon the Company’s entering into a credit facility pursuant to which at least $700,000 is funded to the Company, the Company shall allocate to Atlantic-Pacific $100,000 of such funds to be used by Atlantic-Pacific for working capital.
Section 1.03
Assignment and Assumption of Liabilities. Upon Closing (as defined below), all financial and contractual obligations and liabilities of Atlantic-Pacific incurred prior to and due as of or after the date hereof (the “Atlantic-Pacific Liabilities”) shall be assigned to and assumed by Integrated Energy.
Section 1.04
Closing. The closing (the “Closing”) of the transactions contemplated by this Agreement (the “Transactions”) shall take place on such date that all conditions precedent and obligations of the Parties to consummate such Transactions contemplated hereby and are satisfied or waived, at such location to be determined by the Company or such other date and time as the Parties may mutually determine (the “Closing Date”).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ATLANTIC-PACIFIC, LLC
Atlantic-Pacific and the Member represent and warrant to Integrated Energy, jointly and severally, that, as of the date hereof, except for those representations and warranties that speak of a different date:
Section 2.01.
Organization. Atlantic-Pacific is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Indiana and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now conducted;
Section 2.02
Authorization. The execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action, including action by the members, as required by applicable law and this Agreement has been duly executed by an authorized signatory;
Section 2.03.
Enforceability. This Agreement constitutes a legal, valid, and binding obligation of Atlantic-Pacific, enforceable against Atlantic-Pacific in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, or principles of equity;
Section 2.04.
No Conflicts. The execution and delivery of this Agreement by P Atlantic-Pacific and the performance by Atlantic-Pacific of its obligations hereunder in accordance with the terms hereof (i) will not require the consent of any third party or governmental entity under any laws, and (ii) will not violate any laws applicable to Atlantic-Pacific;
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Section 2.05.
No Litigation. (a) There is no pending or threatened judicial or administrative proceeding or investigation affecting Atlantic-Pacific or the Member that (i) if resolved adversely would have a material adverse effect on the business of Atlantic-Pacific (the “Business”), or (ii) could reasonably be expected to impair its ability to consummate the Exchange, and (b) neither Atlantic-Pacific nor the Member are aware of any judicial or administrative decision affecting it that could reasonably be expected to impair its ability to consummate the Exchange;
Section 2.06. Capitalization.
The authorized capitalization consists solely of membership interests, of which the Member owns 100% and there are no outstanding options, warrants or other rights to purchase membership interests of Atlantic-Pacific;
Section 2.07. Tax Matters. Atlantic-Pacific has filed all Tax Returns that it was required to file with respect to itself and the Business, and has paid all Taxes owing, except (i) where the failure to file Tax Returns or to pay Taxes could not reasonably be expected to have a material adverse effect, or (ii) where the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which Atlantic-Pacific has established adequate reserves in accordance with GAAP. “Taxes” means (A) all income taxes (including any tax on or based upon net income, gross income, income as specially defined, earnings, profits or selected items of income, earnings or profits) and all gross receipts, sales, use, ad valorem, transfer, franchise, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property or windfall profits taxes, alternative or add-on minimum taxes, customs duties and other taxes of any kind whatsoever, together with all interest and penalties, additions to tax and other additional amounts imposed by any Governmental Entity on such entity, and (B) any liability for the payment of any amount of the type described in the immediately preceding clause (A) as a result of being a “transferee” (within the meaning of Section 6901 of the Code or any other applicable law) of another entity, a member of an affiliated or combined group, a contract or otherwise. Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule, exhibit or attachment thereto;
Section 2.08. Permits. Atlantic-Pacific has each license, franchise, permit, certificate, approval or other similar authorization required in connection with the conduct of, or otherwise affecting or relating in any way to, the Business (the “Permits”). The Permits are valid and in full force and effect; Atlantic-Pacific is not in default, and no condition exists that with notice or lapse of time could constitute a default, under the Permits; no proceedings are pending or threatened to revoke or amend any Permit; the Permits are freely assignable; and none of the Permits shall be terminated or impaired or become terminable, in whole or in part, as a result of the transactions contemplated by this Agreement; and
Section 2.09 Books and Records. The minute books and other similar records of Atlantic-Pacific contain complete and accurate records of all actions taken at any meetings of Atlantic-Pacific, board of directors or any committee thereof and of all written consents executed in lieu of the holding of any such meeting. The books and records of Atlantic-Pacific, as previously made available to the Company, accurately reflect the assets, liabilities, business,
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financial condition and results of operations of Atlantic-Pacific and have been maintained in accordance with good business and bookkeeping practices.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE MEMBER
The Member represents and warrants to Integrated Energy that, as of the date hereof, except for those representations and warranties that speak of a different date:
Section 3.01
Good Title. The Member is the record and beneficial owner, and has good title to, the Shares, with the full right and authority to sell and deliver such Shares, free and clear of any and all liens, encumbrances, pledges, security interests, claims, charges, options, rights of first refusal, proxies, voting trusts, or agreements, transfer restrictions under any equity holder or similar agreement or any other restriction or limitation whatsoever, including any contract granting any of the foregoing (collectively, “Liens”), to Integrated Energy pursuant to the Exchange. Integrated Energy, as the new owner of such Shares, will receive good title to such Shares, free and clear of all Liens;
Section 3.02
Power; Enforceability. The Member is of majority age and has the legal capacity to execute and deliver this Agreement and consummate the transactions contemplated hereby, and to perform their obligations under this Agreement. This Agreement constitutes a legal, valid, and binding obligation of the Member, enforceable against the Member in accordance with its terms, except as may be limited by bankruptcy, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, or principles of equity;
Section 3.03
No Conflicts. The execution and delivery of this Agreement by the Member and the performance by the Member of his obligations hereunder in accordance with the terms hereof (i) will not require the consent of any third party or governmental entity under any laws, (ii) will not violate any laws applicable to the Member or the Shares and (iii) will not violate or breach any contractual obligation to which the Member is a party or under which the Shares are bound;
Section 3.04
Acquisition of the Exchange Shares for Investment.
(a)
Purchase Entirely for Own Account. The Exchange Shares proposed to be acquired by the Member hereunder will be acquired for investment for the Member’s own account and not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and the Member has no present intention of selling, granting any participation in or otherwise distributing the Exchange Shares, except in compliance with applicable securities laws. The Member further represents that he does not have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participation to such Person with respect to the Exchange Shares. For purposes of this Agreement, “Person” means any individual, partnership, corporation, association, joint stock company, trust, joint venture, unincorporated
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organization or governmental entity (or any department, agency or political subdivision thereof) or other entity.
(b)
The Member (i) can bear the economic risk of his investment and (ii) possesses such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of his investment in Integrated Energy and its securities.
(c)
The Member understands that the Exchange Shares are not registered under the Securities Act and that the issuance hereof to the Member is intended to be exempt from registration under the Securities Act pursuant to Regulation D promulgated thereunder (“Regulation D”). The Member is an “accredited investor,” as such term is defined in Rule 501 of Regulation D or, if not an accredited investor, otherwise meets the suitability requirements of Regulation D and Section 4(a)(2) of the Securities Act (“Section 4(a)(2)”). The certificate representing the Exchange Shares issued to the Member shall be endorsed with the following legends, in addition to any other legend required to be placed thereon by applicable Securities Laws (as defined herein):
“THIS SECURITY HAS BEEN ACQUIRED FOR INVESTMENT AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“SECURITIES ACT”), OR APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS.”
“TRANSFER OF THESE SECURITIES IS PROHIBITED UNLESS A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WITH RESPECT TO SUCH SECURITY SHALL THEN BE IN EFFECT AND SUCH TRANSFER HAS BEEN QUALIFIED UNDER ALL APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS, OR AN EXEMPTION THEREFROM SHALL BE AVAILABLE UNDER THE ACT AND SUCH LAWS.”
(d)
The Member acknowledges that neither the Securities and Exchange Commission (the “SEC”), nor the securities regulatory body of any state or other jurisdiction, has received, considered or passed upon the accuracy or adequacy of the information and representations made in this Agreement;
(e)
The Member acknowledges that he has carefully reviewed such information as he has deemed necessary to evaluate an investment in Integrated Energy and its securities. To the full satisfaction of the Member, he has been furnished all materials that he has requested relating to Integrated Energy and the issuance of the Exchange Shares hereunder. Notwithstanding the foregoing, nothing herein shall derogate from or otherwise modify the representations and warranties of Integrated Energy set forth in this Agreement, on which the Member has relied in making an exchange of the Shares for the Exchange Shares;
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(f)
The Member understands that the Exchange Shares may not be sold, transferred, or otherwise disposed of without registration under the Securities Act or an exemption therefrom, and that in the absence of an effective registration statement covering the Exchange Shares or any available exemption from registration under the Securities Act, the Exchange Shares may have to be held indefinitely and the Member further acknowledges that the Exchange Shares may not be sold pursuant to Rule 144 promulgated under the Securities Act unless all of the conditions of Rule 144 are satisfied, including, without limitation, Integrated Energy compliance with the reporting requirements under the Exchange Act; and
Section 3.05
Additional Legend; Consent. Additionally, the Exchange Shares will bear any legend required by the “blue sky” laws of any state to the extent such laws are applicable to the securities represented by the certificate so legended and the Member consents to Integrated Energy making a notation on its records or giving instructions to any transfer agent of the Exchange Shares in order to implement the restrictions on transfer of the Exchange Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF INTEGRATED ENERGY SOLUTIONS, INC.
Integrated Energy represents and warrants to Atlantic-Pacific and the Member that, as of the date hereof, except for those representations and warranties that speak of a different date:
Section 5.01
Organization; Authority.
(a)
Integrated Energy is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Nevada and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now conducted and as currently proposed to be conducted. Integrated Energy is duly qualified or authorized to do business and is in good standing under the laws of each jurisdiction in which it owns or leases real property and each other jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization. Integrated Energy has made available to Atlantic-Pacific and the Member true, complete and accurate copies of its articles of incorporation and by-laws, and any amendments thereto or restatements thereof, as in effect on the date hereof;
(b)
The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby will not, violate any provision of the articles of incorporation or by-laws of Integrated Energy. Integrated Energy has full power and authority to enter into this Agreement and consummate the transactions contemplated hereby; and
(c)
This Agreement constitutes the valid and binding obligation of Integrated Energy, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, or principles of equity.
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ARTICLE V
COVENANTS
Section 6.01
Securities Law Compliance. Each of Integrated Energy and Atlantic-Pacific understands and agrees that the consummation of this Agreement, including the issuance of the Exchange Shares to the Member in exchange for the Shares upon Closing as contemplated hereby, constitutes the offer and sale of securities under the Securities Act and applicable state statutes. Each of Integrated Energy and Atlantic-Pacific agree that such transactions shall be consummated in reliance on exemptions from the registration requirements of such statutes, which depend, among other items, on the circumstances under which such securities are acquired. Furthermore, in connection with the transactions contemplated by this Agreement, Integrated Energy and Atlantic-Pacific shall each file, with the assistance of the other and their respective legal counsel, such notices, applications, reports or other instruments as may be deemed by them to be necessary or appropriate in an effort to document reliance on such exemptions, and the appropriate regulatory authority in the state where the Member resides, unless an exemption requiring no filing is available in such jurisdiction, all to the extent and in the manner as may be deemed by the Parties to be appropriate.
Section 5.02
Further Assurances. Subject to the terms and conditions herein provided, each Party shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective this Agreement and the transactions contemplated herein.
INDEMNIFICATION
Section 6.01. The Member shall indemnify and hold harmless Integrated Energy and its officers, directors, shareholders, employees, attorneys, accountants, representatives and agents from and against any and all losses, damages, fees, costs, expenses, obligations and liabilities (collectively, the “Liabilities”) or actions, investigations, inquiries, arbitrations, claims or other governmental or administrative agency proceedings in respect thereof, including enforcement of this Agreement (collectively, the “Actions” and together with the Liabilities, the “Losses”), arising out of or based on (i) any inaccuracy in or any breach of any representation of Atlantic-Pacific or the Member contained in this Agreement, or misrepresentations made hereunder or (ii) a material breach of any covenant or agreement of Atlantic-Pacific or the Member in this Agreement or any related agreement.
Section 6.02. Integrated Energy shall indemnify the Member from and against any and all Losses to which it may become subject arising out of or based on (i) any inaccuracy in or any breach of any representation of Integrated Energy contained in this Agreement, or misrepresentations made hereunder or (ii) a material breach of any covenant or agreement of Integrated Energy in this Agreement or any related agreement.
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Section 6.03. Without limiting the foregoing, Losses include, but are not limited to, all reasonable legal fees, court costs and other expenses incurred in connection with investigating, preparing, defending, paying, settling or compromising any suit in law or equity arising out of this Agreement.
Section 6.04. The indemnification provided for in this Article VI shall survive the consummation of the Transactions contemplated hereby.
ARTICLE VII
MISCELLANEOUS
Brokers. Each Party agrees that there were no finders or brokers involved in bringing the Parties together or who were instrumental in the negotiation, execution or consummation of this Agreement. Each Party agrees to indemnify the other against any claim by any third Person for any commission, brokerage or finder’s fee arising from the transactions contemplated hereby based on any alleged agreement or understanding between the indemnifying party and such third Person, whether express or implied, from the actions of the indemnifying party.
Section 6.02
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of New Jersey, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New Jersey. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of New Jersey, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each Party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such Party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
Section 6.03
Notices. All notices or other communications required or permitted by this Agreement shall be in writing and addressed as follows:
If to Integrated Energy:
Integrated Energy Solutions, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxx Xxxxxx, XX 00000
Attn: Xxxxxx Xxxx, Chief Executive Officer
With Copies to:
Lucosky Xxxxxxxx LLP
000 Xxxx Xxxxxx Xxxxx, 0xx Xx
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Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
If to Atlantic-Pacific, LLC:
Atlantic-Pacific, LLC
0000 Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, Manager
If to the Member:
Xxxxxx Xxxxxxxx
Atlantic-Pacific, LLC
0000 Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
or such other addresses as shall be furnished in writing by any Party in the manner for giving notices hereunder.
Notice shall be deemed to have been duly received:
(a)
if given email, when transmitted and the appropriate confirmation received, as applicable, if transmitted on a business day and during normal business hours of the recipient, and otherwise on the next business day following transmission;
(b)
if given by certified or registered mail, return receipt requested, postage prepaid, three business days after being deposited in the U.S. mail; and
(c)
if given by courier, messenger or other means, when received or personally delivered and, in any such case, addressed as indicated herein, or to such other addresses as may be specified by any Party to the other Parties pursuant to notice given by such Party in accordance with the provisions of this Section 6.03.
Section 6.04
Attorneys Fees. In the event that any Party institutes any action or suit to enforce this Agreement or to secure relief from any default hereunder or breach hereof, the prevailing Party shall be reimbursed by the losing Party for all costs, including, without limitation, reasonable attorneys’ fees, incurred in connection therewith and in enforcing or collecting any judgment rendered therein.
Third Party Beneficiaries. This contract is strictly between Integrated Energy, Atlantic-Pacific and the Member and, except as specifically provided, no other Person shall be deemed to be a third party beneficiary of this Agreement.
Section 6.06
Expenses. Each of Integrated Energy and Atlantic-Pacific shall bear their own respective expenses, including legal, accounting and professional fees, incurred in connection with this Agreement and any other agreements in connection therewith, the Exchange or any of the other transactions contemplated hereby.
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Section 6.07
Entire Agreement. This Agreement and the related documents referenced herein represent the entire agreement between the Parties relating to the subject matter hereof, and supersedes all prior agreements, understandings and negotiations, written or oral, with respect to such subject matter.
Section 6.08
Survival; Termination. The representations, warranties and covenants of the respective Parties shall survive the consummation of the transactions herein contemplated for a period of one year.
Section 6.09
Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together shall be but a single instrument. Signatures delivered by email shall be deemed original signatures.
Section 6.10
Independent Counsel. Atlantic-Pacific and Member acknowledge that they have been provided with an opportunity to consult with their own legal counsel and tax or other advisors with respect to this Agreement.
Section 6.11
Amendment or Waiver. Every right and remedy provided herein shall be cumulative with every other right and remedy, whether conferred herein, at law or in equity, and may be enforced concurrently therewith, and no waiver by any Party of the performance of any obligation by the other shall be construed as a waiver of the same or any other default then, theretofore or thereafter occurring or existing. This Agreement may by amended by a writing signed by all Parties, with respect to any of the terms contained herein, and any term or condition of this Agreement may be waived or the time for performance may only be extended by a writing signed by the Party or Parties for whose benefit the provision is intended.
[Signature pages follow]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above, and the corporate Parties have caused this Agreement to be executed by their respective officers, hereunto duly authorized.
INTEGRATED ENERGY SOLUTIONS, INC.
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Chief Executive Officer
ATLANTIC-PACIFIC, LLC
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Manager
MEMBER
/s/ Xxxxxx Rosinski___________________
XXXXXX XXXXXXXX, individually
[Signature page to the Agreement]
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