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Exhibit 3.4
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made as of the 29th
day of November, 2007
AMONG:
ACADIA RESOURCES INC. , a corporation formed pursuant to
the laws of the State of Nevada and having an office for business
located at 847 MacEwen Drive, Osprey, FL 342229-9244
(“Acadia”)
AND:
SUNOVIA SOLAR INC. , a body corporate formed pursuant to
the laws of the State of Delaware and a wholly owned subsidiary of
ACADIA
(the
"Acquirer")
AND:
SUN ENERGY SOLAR, INC. , a body corporate formed pursuant
to the laws of the State of Delaware and having an office for
business located at 6408 Parkland Drive, Suite 104, Sarasota,
Florida 34243
("Sun
Energy Solar")
AND:
CARL L. SMITH, III , RICHARD CRAIG HALL, AND RICK
ST. GEORGE
(collectively
the “Sun Energy Shareholders”)
WHEREAS:
A.
Sun
Energy Solar is a Delaware corporation engaged in the business of
developing solar substrate products for the highway safety market
and solar substrate for the advertising industry;
B.
The
Sun Energy Solar Shareholders own 127,087,130 Sun Energy Solar
Shares, which constitute 54% of the presently issued and
outstanding Sun Energy Solar Shares;
C.
Acadia
is a reporting company whose common stock is quoted on the OTC
Bulletin Board under the symbol AADI. However, there
have not been any trades in Acadia common stock since its initial
quotation on May 24, 2007. Acadia is engaged in the
acquisition and exploration of mineral properties;
D.
The
respective Boards of Directors of Acadia, Sun Energy Solar and the
Acquirer deem it advisable and in the best interests of Acadia, Sun
Energy Solar and the Acquirer that Sun Energy Solar merge with and
into the Acquirer (the "Merger") pursuant to this Agreement and the
Certificate of Merger, and the applicable provisions of the laws of
the State of Delaware; and
E.
It
is intended that the Merger shall qualify for United States federal
income tax purposes as a reorganization within the meaning of
Section 368 of the Internal Revenue Code of 1986, as
amended.
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in
consideration of the premises and the mutual covenants, agreements,
representations and warranties contained herein, and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
Definitions
1.1
In
this Agreement the following terms will have the following
meanings:
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(a)
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“
Acquisition Shares ” means the 58,485,098
Acadia Common Shares and to be issued to the
shareholders of Sun Energy Solar at Closing pursuant to the terms
of the Merger;
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(b)
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“
Agreement ” means this agreement and plan of
merger among Acadia, the Acquirer, Sun Energy Solar, and the Sun
Energy Solar Shareholders;
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(c)
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“
Acadia Accounts Payable and Liabilities ”
means all accounts payable and liabilities of Acadia, on a
consolidated basis, due and owing or otherwise constituting a
binding obligation of Acadia and its subsidiaries as of August 31,
2007 as set forth in Acadia’s Form 10-KSB as filed with the
Securities and Exchange Commission on October 19, 2007, a copy of
which is attached hereto as Schedule “A”;
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(d)
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“
Acadia Accounts Receivable ” means all
accounts receivable and other debts owing to Acadia, on a
consolidated basis, as of August 31, 2007 as set forth in
Acadia’s Form 10-KSB as filed with the Securities and
Exchange Commission on October 19, 2007, a copy of which
is attached hereto as Schedule “A” ;
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(e)
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“
Acadia Assets ” means the undertaking and
all the property and assets of the Acadia Business of every kind
and description wheresoever situated including, without limitation,
Acadia Equipment, ACADIA Inventory, ACADIA Material Contracts,
ACADIA Accounts Receivable, ACADIA Cash, ACADIA Intangible Assets
and ACADIA Goodwill, and all credit cards, charge cards and banking
cards issued to ACADIA;
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(f)
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“
ACADIA Bank Accounts ” means all of the bank
accounts, lock boxes and safety deposit boxes of ACADIA and its
subsidiaries or relating to the ACADIA Business as set forth in
Acadia’s Form 10-KSB as filed with the Securities and
Exchange Commission on October 19, 2007, a copy of which is
attached hereto as Schedule “A” ;
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(g)
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“
ACADIA Business ” means all aspects of any
business conducted by ACADIA and its subsidiaries;
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(h)
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“
ACADIA Cash ” means all cash on hand or on
deposit to the credit of ACADIA and its subsidiaries on the Closing
Date;
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(i)
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“
ACADIA Common Shares ” means the shares of
common stock in the capital of ACADIA;
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(j)
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“
ACADIA Debt to Related Parties ” means the
sum of $18,231.86 which was owed by Acadia to its President, James
Donahue. Pursuant to the terms of the Settlement
Agreement dated November 19, 2007, a copy of which is attached
hereto as Schedule “B”, by and between Acadia and James
Donahue, Acadia has received a release from such debt;
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(k)
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“
ACADIA Equipment ” means all machinery,
equipment, furniture, and furnishings used in the ACADIA Business,
including, without limitation, the items more particularly
described in Acadia’s Form 10-KSB as filed with the
Securities and Exchange Commission on October 19, 2007, a copy of
which is attached hereto as Schedule “A” ;
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(l)
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“
ACADIA Financial Statements ” means,
collectively, the audited consolidated financial statements of
ACADIA for the fiscal year ended August 31, 2007, together with the
unqualified auditors' report thereon, as contained in
Acadia’s Form 10-KSB as filed with the Securities and
Exchange Commission on October 19, 2007, a copy of which is
attached as Schedule “A” hereto;
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(m)
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“
ACADIA Goodwill” means the goodwill of the
ACADIA Business including the right to all corporate, operating and
trade names associated with the ACADIA Business, or any variations
of such names as part of or in connection with the ACADIA Business,
all books and records and other information relating to the ACADIA
Business, all necessary licenses and authorizations and any other
rights used in connection with the ACADIA Business;
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(n)
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“
ACADIA Insurance Policies ” means the public
liability insurance and insurance against loss or damage to the
ACADIA Assets and the ACADIA Business as described in
Acadia’s Form 10-KSB as filed with the Securities and
Exchange Commission on October 19, 2007, a copy of which is
attached hereto as Schedule “A”;
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(o)
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“
ACADIA Intangible Assets " means all of the
intangible assets of ACADIA and its subsidiaries, including,
without limitation, ACADIA Goodwill, all trademarks, logos,
copyrights, designs, and other intellectual and industrial property
of ACADIA and its subsidiaries;
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(p)
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“
ACADIA Inventory ” means all inventory and
supplies of the ACADIA Business as of August
31, 2007, as set forth in as contained in Acadia’s Form
10-KSB as filed with the Securities and Exchange Commission on
October 19, 2007, a copy of which is attached hereto as Schedule
“A”;
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(q)
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“
ACADIA Material Contracts ” means the burden
and benefit of and the right, title and interest of ACADIA and its
subsidiaries in, to and under all trade and non-trade contracts,
engagements or commitments, whether written or oral, to which
ACADIA or its subsidiaries are entitled whereunder ACADIA or its
subsidiaries are obligated to pay or entitled to receive the sum of
$10,000 or more including, without limitation, any pension plans,
profit sharing plans, bonus plans, loan agreements, security
agreements, indemnities and guarantees, any agreements with
employees, lessees, licensees, managers, accountants, suppliers,
agents, distributors, officers, directors, attorneys or others
which cannot be terminated without liability on not more than one
month's notice, and those contracts described in as
contained in Acadia’s Form 10-KSB as filed with the
Securities and Exchange Commission on October 19, 2007, a copy of
which is attached hereto as Schedule “A”;
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(s)
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“
Closing ” means the completion, on the
Closing Date, of the transactions contemplated hereby in accordance
with Article 9 hereof;
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(t)
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“
Closing Date ” means the day on which all
conditions precedent to the completion of the transaction as
contemplated hereby have been satisfied or waived;
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(u)
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“
Effective Time ” means the date of the
filing of an appropriate Certificate of Merger in the form required
by the State of Delaware, which certificate shall provide that the
Merger shall become effective upon such filing;
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(v)
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“
Merger ” means the merger, at the Effective
Time, of Sun Energy Solar and the Acquirer pursuant to this
Agreement and Plan of Merger;
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(w)
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“
Merger Consideration ” means the Acquisition
Shares;
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(x)
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“
Place of Closing ” means the offices of
Sichenzia Ross Friedman Ference LLP, or such other place as ACADIA
and Sun Energy Solar may mutually agree upon;
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(y)
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“
State Corporation Law ” means the General
Corporation Law of the State of Delaware;
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(z)
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“
Surviving Company ” means the Acquirer
following the merger with Sun Energy Solar;
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(aa)
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“
Sun Energy Solar Accounts Payable and Liabilities
” means all accounts payable and liabilities of Sun Energy
Solar, due and owing or otherwise constituting a binding obligation
of Sun Energy Solar (other than a Sun Energy Solar Material
Contract) as of October 31, 2007 as set forth in the unaudited
financial statements of Sun Energy Solar, a copy of which is
attached hereto as Schedule “C”;
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(bb)
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“
Sun Energy Solar Accounts Receivable ” means
all accounts receivable and other debts owing to Sun Energy Solar,
as of October 31, 2007 as set forth in the unaudited financial
statements of Sun Energy Solar, a copy of which is attached hereto
as Schedule “C”;
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(cc)
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“
Sun Energy Solar Assets “ means the
undertaking and all the property and assets of the Sun Energy Solar
Business of every kind and description wheresoever situated
including, without limitation, Sun Energy Solar Equipment, Sun
Energy Solar Inventory, Sun Energy Solar Material Contracts, Sun
Energy Solar Accounts Receivable, Sun Energy Solar Cash, Sun Energy
Solar Intangible Assets and Sun Energy Solar Goodwill, and all
credit cards, charge cards and banking cards issued to Sun Energy
Solar;
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(dd)
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“
Sun Energy Solar Bank Accounts ” means all
of the bank accounts, lock boxes and safety deposit boxes of Sun
Energy Solar or relating to the Sun Energy Solar Business as set
forth in the financial statements of Sun Energy Solar, a copy of
which is attached hereto as Schedule “C”;
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(ee)
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“
Sun Energy Solar Business ” means all
aspects of the business conducted by Sun Energy Solar;
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(ff)
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“
Sun Energy Solar Cash ” means all cash on
hand or on deposit to the credit of Sun Energy Solar on the Closing
Date;
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(gg)
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“
Sun Energy Solar Debt to Related Parties ”
means the debts owed by Sun Energy Solar and its subsidiaries to
the Sun Energy Solar Shareholders or to any family member thereof,
or to any affiliate, director or officer of Sun Energy Solar or the
Sun Energy Solar Shareholders as described in the unaudited
financial statements of Sun Energy Solar, a copy of which is
attached hereto as Schedule “C”;
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(hh)
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“
Sun Energy Solar Equipment ” means all
machinery, equipment, furniture, and furnishings used in the Sun
Energy Solar Business, including, without limitation, the items
more particularly described in the unaudited financial statements
of Sun Energy Solar, a copy of which is attached hereto as Schedule
“C”;
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(ii)
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“
Sun Energy Solar Financial Statements ”
means collectively, the audited consolidated financial statements
of Sun Energy Solar for the period from inception (November 9,
2005) through July 31, 2006, and the year ended July 31, 2007
together with the unqualified auditors' reports thereon, true
copies of which are attached as Schedule “D”
hereto. Subject to the consent of ACADIA, with unaudited
financial statements for the three month period ended October 31,
2007. a copy of which is attached hereto as Schedule
“C”;
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(jj)
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“
Sun Energy Solar Goodwill ” means the
goodwill of the Sun Energy Solar Business together with the
exclusive right of ACADIA to represent itself as carrying on the
Sun Energy Solar Business in succession of Sun Energy Solar subject
to the terms hereof, and the right to use any words indicating that
the Sun Energy Solar Business is so carried on including the right
to use the name "Sun Energy Solar” or “Sunovia Energy
Technologies" or any variation thereof as part of the name of or in
connection with the Sun Energy Solar Business or any part thereof
carried on or to be carried on by Sun Energy Solar, the right to
all corporate, operating and trade names associated with the Sun
Energy Solar Business, or any variations of such names as part of
or in connection with the Sun Energy Solar Business, all telephone
listings and telephone advertising contracts, all lists of
customers, books and records and other information relating to the
Sun Energy Solar Business, all necessary licenses and
authorizations and any other rights used in connection with the Sun
Energy Solar Business;
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(kk)
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“
Sun Energy Solar Insurance Policies ” means
the public liability insurance and insurance against loss or damage
to Sun Energy Solar Assets and the Sun Energy Solar Business as
described in the unaudited financial statements of Sun Energy
Solar, a copy of which is attached hereto as Schedule
“C”;
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(ll)
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“
Sun Energy Solar Intangible Assets ” means
all of the intangible assets of Sun Energy Solar, including,
without limitation, Sun Energy Solar Goodwill, all trademarks,
logos, copyrights, designs, and other intellectual and industrial
property of Sun Energy Solar and its subsidiaries;
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(mm)
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“
Sun Energy Solar Inventory ” means all
inventory and supplies of the Sun Energy Solar Business as of
October 31, 2007 as set forth in the unaudited financial statements
of Sun Energy Solar, a copy of which is attached hereto as Schedule
“C”;
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(nn)
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“
Sun Energy Solar Material Contracts ” means
the burden and benefit of and the right, title and interest of Sun
Energy Solar in, to and under all trade and non-trade contracts,
engagements or commitments, whether written or oral, to which Sun
Energy Solar is entitled in connection with the Sun Energy Solar
Business whereunder Sun Energy Solar is obligated to pay or
entitled to receive the sum of $100,000 or more including, without
limitation, any pension plans, profit sharing plans, bonus plans,
loan agreements, security agreements, indemnities and guarantees,
any agreements with employees, lessees, licensees, managers,
accountants, suppliers, agents, distributors, officers, directors,
attorneys or others which cannot be terminated without liability on
not more than one month's notice, and those contracts described in
the unaudited financial statements of Sun Energy Solar, a copy of
which is attached hereto as Schedule “C”;
and
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(oo)
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“
Sun Energy Solar Shares ” means all of the
issued and outstanding shares of Sun Energy Solar's equity
stock.
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Any
other terms defined within the text of this Agreement will have the
meanings so ascribed to them.
Captions and Section Numbers
1.2 The
headings and section references in this Agreement are for
convenience of reference only and do not form a part of this
Agreement and are not intended to interpret, define or limit
the scope, extent or intent of this Agreement or any provision
thereof.
Section References and Schedules
1.3 Any
reference to a particular “Article”,
“section”, “paragraph”,
“clause” or other subdivision is to the particular
Article, section, clause or other subdivision of this
Agreement and any reference to a Schedule by letter will mean
the appropriate Schedule attached to this Agreement and by
such reference the appropriate Schedule is incorporated into
and made part of this Agreement. The Schedules to
this Agreement are as follows:
Information concerning ACADIA
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Schedule
“A”
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Acadia
Form 10-KSB as filed with the Securities and Exchange Commission on
October 19, 2007
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Schedule
“B” Settlement
Agreement by and between Acadia and James Donahue
Information concerning Sun Energy Solar
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Schedule
“C”
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Unaudited
Financial Statements of Sun Energy Solar as of October 31,
2007
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Schedule
“D”
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Audited
Consolidated Financial Statements for the Period From Inception
(November 9, 2005) through July 31, 206 and the year ended July 31,
2007
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Severability of Clauses
1.4 If
any part of this Agreement is declared or held to be invalid
for any reason, such invalidity will not affect the validity
of the remainder which will continue in full force and effect
and be construed as if this Agreement had been executed
without the invalid portion, and it is hereby declared the
intention of the parties that this Agreement would have been
executed without reference to any portion which may, for any
reason, be hereafter declared or held to be
invalid.
ARTICLE 2
THE MERGER
The Merger
2.1 At
Closing, Sun Energy Solar shall be merged with and into the
Acquirer pursuant to this Agreement and Plan of Merger and the
separate corporate existence of Sun Energy Solar shall cease
and the Acquirer, as it exists from and after the Closing,
shall be the Surviving Company.
Effect of the Merger
2.2 The
Merger shall have the effect provided therefor by the State
Corporation Law. Without limiting the generality of the
foregoing, and subject thereto, at Closing (i) all the rights,
privileges, immunities, powers and franchises, of a public as
well as of a private nature, and all property, real, personal
and mixed, and all debts due on whatever account, including
without limitation subscriptions to shares, and all other
causes in action, and all and every other interest of or
belonging to or due to Sun Energy Solar or the Acquirer, as a
group, subject to the terms hereof, shall be taken and deemed
to be transferred to, and vested in, the Surviving Company
without further act or deed; and all property, rights and
privileges, immunities, powers and franchises and all and
every other interest shall be thereafter as effectually the
property of the Surviving Company, as they were of Sun Energy
Solar and the Acquirer, as a group, and (ii) all debts,
liabilities, duties and obligations of Sun Energy Solar and
the Acquirer, as a group, subject to the terms hereof, shall
become the debts, liabilities and duties of the Surviving
Company and the Surviving Company shall thenceforth be
responsible and liable for all debts, liabilities, duties and
obligations of Sun Energy Solar and the Acquirer, as a group,
and neither the rights of creditors nor any liens upon the
property of Sun Energy Solar or the Acquirer, as a group,
shall be impaired by the Merger, and may be enforced against
the Surviving Company.
Certificate of Incorporation; Bylaws; Directors and
Officers
2.3 The
Certificate of Incorporation of the Surviving Company from and
after the Closing shall be the Certificate of Incorporation of
the Acquirer until thereafter amended in accordance with the
provisions therein and as provided by the applicable
provisions of the State Corporation Law. The Bylaws
of the Surviving Company from and after the Closing shall be
the Bylaws of Sun Energy Solar as in effect immediately prior
to the Closing, continuing until thereafter amended in
accordance with their terms, the Certificate of Incorporation
of the Surviving Company and as provided by the State
Corporation Law. The Directors of the Acquirer at
the Effective Time shall continue to be the Directors of Sun
Energy Solar.
Conversion of Securities
2.4 At
the Effective Time, by virtue of the Merger and without any
action on the part of the Acquirer, Sun Energy Solar or the
Sun Energy Solar Shareholders or any other shareholder of Sun
Energy Solar, the shares of capital stock of each of Sun
Energy Solar and the Acquirer shall be converted as
follows:
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(a)
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Capital Stock of the Acquirer . Each issued and outstanding
share of the Acquirer's capital stock shall continue to be issued
and outstanding and shall be converted into one share of validly
issued, fully paid, and non-assessable common stock of the
Surviving Company. Each stock certificate of the Acquirer
evidencing ownership of any such shares shall continue to evidence
ownership of such shares of capital stock of the Surviving
Company.
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(b)
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Conversion of Sun Energy Solar Shares . Each Sun Energy Solar
Share that is issued and outstanding at the Effective Time shall
automatically be cancelled and extinguished and converted, without
any action on the part of the holder thereof, into the right to
receive at the time and in the amounts described in this Agreement
an amount of ACADIA Common Shares equal to 58,485,098 divided by
the number of Sun Energy Solar Shares outstanding immediately prior
to Closing. All such Sun Energy Solar Shares, when so converted,
shall no longer be outstanding and shall automatically be cancelled
and retired and shall cease to exist, and each holder of a
certificate representing any such shares shall cease to have any
rights with respect thereto, except the right to receive the
Acquisition Shares paid in consideration therefor upon the
surrender of such certificate in accordance with this
Agreement.
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Adherence with Applicable Securities Laws
2.5 The
Sun Energy Solar Shareholders agrees that they are acquiring a
pro rata amount of the Acquisition Shares for investment
purposes and will not offer, sell or otherwise transfer,
pledge or hypothecate any of the Acquisition Shares issued to
them (other than pursuant to an effective Registration
Statement under the Securities Act of 1933 , as
amended) directly or indirectly unless:
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(a)
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the
sale is to ACADIA;
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(b)
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the
sale is made pursuant to the exemption from registration under the
Securities Act of 1933,as amended, provided by Rule 144
thereunder; or
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(c)
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the
Acquisition Shares are sold in a transaction that does not require
registration under the Securities Act of 1933, as amended,
or any applicable United States state laws and regulations
governing the offer and sale of securities, and the vendor has
furnished to ACADIA an opinion of counsel to that effect or such
other written opinion as may be reasonably required by
ACADIA.
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The Sun Energy Solar
Shareholders acknowledge that the certificates representing
the Acquisition Shares shall bear the following
legend:
NO
SALE, OFFER TO SELL, OR TRANSFER OF THE SHARES REPRESENTED BY
THIS CERTIFICATE SHALL BE MADE UNLESS A REGISTRATION STATEMENT
UNDER THE FEDERAL SECURITIES ACT OF 1933, AS AMENDED, IN
RESPECT OF SUCH SHARES IS THEN IN EFFECT OR AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SAID ACT IS THEN IN FACT
APPLICABLE TO SAID SHARES.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF ACADIA
Representations and Warranties
3.1 ACADIA
represents and warrants in all material respects to Sun Energy
Solar, with the intent that Sun Energy Solar will rely thereon
in entering into this Agreement and in approving and
completing the transactions contemplated hereby,
that:
ACADIA - Corporate Status and Capacity
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(a)
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Incorporation . ACADIA is a corporation duly incorporated and
validly subsisting under the laws of the State of Nevada, and is in
good standing with the office of the Secretary of State for the
State of Nevada;
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(b)
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Carrying on Business . ACADIA has recently ceased its mining
operations and presently does not currently conduct business.
ACADIA is duly authorized to carry on such business in British
Columbia, Canada. The nature of the ACADIA Business does
not require ACADIA to register or otherwise be qualified to carry
on business in any other jurisdictions;
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(c)
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Corporate Capacity . ACADIA has the corporate power, capacity
and authority to own the ACADIA Assets and to enter into and
complete this Agreement;
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(d)
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Reporting Status; Listing . ACADIA is required to file current
reports with the Securities and Exchange Commission pursuant to
section 12(g) of the Securities Exchange Act of 1934, the ACADIA
Common Shares are quoted on the OTC Bulletin Board, and all reports
required to be filed by ACADIA with the Securities and Exchange
Commission or NASD have been timely filed;
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Acquirer - Corporate Status and Capacity
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(e)
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Incorporation . The Acquirer is a corporation duly incorporated
and validly subsisting under the laws of the State of Delaware, and
is in good standing with the office of the Secretary of State for
the State of Delaware;
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(f)
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Carrying on Business . Other than corporate formation and
organization, the Acquirer has not carried on business activities
to date.
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(g)
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Corporate Capacity . The Acquirer has the corporate power,
capacity and authority to enter into and complete this
Agreement;
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ACADIA - Capitalization
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(h)
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Authorized Capital . The authorized capital of ACADIA consists
of 75,000,000 ACADIA Common Shares, $0.001 par value, of which
7,350,000 ACADIA Common Shares are presently issued and
outstanding;;
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(i)
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No Option . No person, firm or corporation has any agreement or
option or any right capable of becoming an agreement or option for
the acquisition of ACADIA Common Shares or for the purchase,
subscription or issuance of any of the unissued shares in the
capital of ACADIA;
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(j)
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Capacity . ACADIA has the full right, power and authority to
enter into this Agreement on the terms and conditions contained
herein;
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Acquirer Capitalization
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(k)
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Authorized Capital . The authorized capital of the Acquirer
consists of 200 shares of common stock, $0.0001 par value, of which
one share of common stock is presently issued and
outstanding;
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(l)
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No Option . No person, firm or corporation has any agreement or
option or any right capable of becoming an agreement or option for
the acquisition of any common or preferred shares in Acquirer or
for the purchase, subscription or issuance of any of the unissued
shares in the capital of Acquirer;
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(m)
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Capacity . The Acquirer has the full right, power and authority
to enter into this Agreement on the terms and conditions contained
herein;
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ACADIA - Records and Financial Statements
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(n)
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Charter Documents . The charter documents of ACADIA and the
Acquirer have not been altered since the incorporation of each,
respectively, except as filed in the record books of ACADIA or the
Acquirer, as the case may be;
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(o)
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Corporate Minute Books . The corporate minute books of ACADIA
and its subsidiaries are complete and each of the minutes contained
therein accurately reflect the actions that were taken at a duly
called and held meeting or by consent without a meeting. All
actions by ACADIA and its subsidiaries which required director or
shareholder approval are reflected on the corporate minute books of
ACADIA and its subsidiaries. ACADIA and its subsidiaries are not in
violation or breach of, or in default with respect to, any term of
their respective Certificates of Incorporation (or other charter
documents) or by-laws.
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(p)
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ACADIA Financial Statements . The ACADIA Financial Statements
present fairly, in all material respects, the assets and
liabilities (whether accrued, absolute, contingent or otherwise) of
ACADIA, on a consolidated basis, as of the respective dates
thereof, and the sales and earnings of the ACADIA Business during
the periods covered thereby, in all material respects and have been
prepared in substantial accordance with generally accepted
accounting principles consistently applied;
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(q)
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ACADIA Accounts Payable and Liabilities . There are no material
liabilities, contingent or otherwise, of ACADIA or its subsidiaries
which are not disclosed in Schedule “A” hereto or
reflected in the ACADIA Financial Statements except those incurred
in the ordinary course of business since the date of the said
schedule and the ACADIA Financial Statements, and neither ACADIA
nor its subsidiaries have guaranteed or agreed to guarantee any
debt, liability or other obligation of any person, firm or
corporation. Without limiting the generality of the foregoing, all
accounts payable and liabilities of ACADIA and its subsidiaries as
of August 31, 2007 are described in Schedule “A”
hereto;
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(r)
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ACADIA Accounts Receivable . All the ACADIA Accounts Receivable
result from bona fide business transactions and services actually
rendered without, to the knowledge and belief of ACADIA, any claim
by the obligor for set-off or counterclaim;
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(s)
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ACADIA Bank Accounts . All of the ACADIA Bank Accounts, their
location, numbers and the authorized signatories thereto are as set
forth in Schedule “A” hereto;
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(t)
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No Debt to Related Parties . Except as disclosed in Schedule
“B” hereto, neither ACADIA nor its subsidiaries are,
and on Closing will not be, materially indebted to any affiliate,
director or officer of ACADIA except accounts payable on account of
bona fide business transactions of ACADIA incurred in normal course
of the ACADIA Business, including employment agreements, none of
which are more than 30 days in arrears;
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(u)
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No Related Party Debt to ACADIA . No director or officer or
affiliate of ACADIA is now indebted to or under any financial
obligation to ACADIA or its subsidiaries on any account whatsoever,
except for advances on account of travel and other expenses not
exceeding $5,000 in total;
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(v)
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No Dividends . No dividends or other distributions on any
shares in the capital of ACADIA have been made, declared or
authorized since the date of ACADIA Financial
Statements;
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(w)
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No Payments . No payments of any kind have been made or
authorized since the date of the ACADIA Financial Statements to or
on behalf of officers, directors, shareholders or employees of
ACADIA or its subsidiaries or under any management agreements with
ACADIA or its subsidiaries, except payments made in the ordinary
course of business and at the regular rates of salary or other
remuneration payable to them;
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(x)
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No Pension Plans . There are no pension, profit sharing, group
insurance or similar plans or other deferred compensation plans
affecting ACADIA or its subsidiaries;
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(y)
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No Adverse Events . Since the date of the ACADIA Financial
Statements
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(i)
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there
has not been any material adverse change in the financial position
or condition of ACADIA, its subsidiaries, its liabilities or the
ACADIA Assets or any damage, loss or other change in circumstances
materially affecting ACADIA, the ACADIA Business or the ACADIA
Assets or ACADIA’ right to carry on the ACADIA Business,
other than changes in the ordinary course of business,
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(ii)
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there
has not been any damage, destruction, loss or other event (whether
or not covered by insurance) materially and adversely affecting
ACADIA, its subsidiaries, the ACADIA Business or the ACADIA
Assets,
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(iii)
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there
has not been any material increase in the compensation payable or
to become payable by ACADIA to any of ACADIA’ officers,
employees or agents or any bonus, payment or arrangement made to or
with any of them,
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(iv)
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the
ACADIA Business has been and continues to be carried on in the
ordinary course,
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(v)
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ACADIA
has not waived or surrendered any right of material
value,
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(vi)
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Neither
ACADIA nor its subsidiaries have discharged or satisfied or paid
any lien or encumbrance or obligation or liability other than
current liabilities in the ordinary course of business,
and
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(vii)
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no
capital expenditures in excess of $10,000 individually or $30,000
in total have been authorized or made.
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ACADIA - Income Tax Matters
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(z)
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Tax Returns . Except as provided on Schedule 3.1(z), all tax
returns and reports of ACADIA and its subsidiaries required by law
to be filed have been filed and are true, complete and correct, and
any taxes payable in accordance with any return filed by ACADIA and
its subsidiaries or in accordance with any notice of assessment or
reassessment issued by any taxing authority have been so
paid;
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(aa)
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Current Taxes . Adequate provisions have been made for taxes
payable for the current period for which tax returns are not yet
required to be filed and there are no agreements, waivers, or other
arrangements providing for an extension of time with respect to the
filing of any tax return by, or payment of, any tax, governmental
charge or deficiency by ACADIA or its
subsidiaries. ACADIA is not aware of any contingent tax
liabilities or any grounds which would prompt a reassessment
including aggressive treatment of income and expenses in filing
earlier tax returns;
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ACADIA - Applicable Laws and Legal Matters
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(bb)
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Licenses . ACADIA and its subsidiaries hold all licenses and
permits as may be requisite for carrying on the ACADIA Business in
the manner in which it has heretofore been carried on, which
licenses and permits have been maintained and continue to be in
good standing except where the failure to obtain or maintain such
licenses or permits would not have a material adverse effect on the
ACADIA Business;
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(cc)
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Applicable Laws . Neither ACADIA nor its subsidiaries have been
charged with or received notice of breach of any laws, ordinances,
statutes, regulations, by-laws, orders or decrees to which they are
subject or which apply to them the violation of which would have a
material adverse effect on the ACADIA Business, and to
ACADIA’ knowledge, neither ACADIA nor its subsidiaries are in
breach of any laws, ordinances, statutes, regulations, bylaws,
orders or decrees the contravention
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