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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
ARDMORE HOLDING CORPORATION,
ARDMORE ACQUISITION CORP.,
CHARLESTON INDUSTRIAL LTD.,
AND
TRYANT, LLC
TABLE OF CONTENTS
Schedule
6(b)(1) - Capital Structure of Ardmore and Merger
Sub
Schedule
6(d)(2) - SEC Reports
Schedule
14 - Finder’s
Fees
AGREEMENT AND PLAN OF MERGER
This
Agreement and Plan of Merger (the “
Agreement ”)
is dated as of June 6, 2008, by and among Ardmore Holding
Corporation, a Delaware corporation (“
Ardmore ”),
Ardmore Acquisition Corp., a direct wholly owned subsidiary of
Ardmore (“
Merger Sub ”),
Tryant, LLC, a Delaware limited liability company as the principal
shareholder of Ardmore (the “
Principal Shareholder ”),
and Charleston Industrial Ltd., a British Virgin Islands limited
liability company (the “
Target ).
RECITALS
WHEREAS ,
the parties hereto desire that Target shall be acquired by Ardmore
through the merger (“
Merger ”)
of Merger Sub with and into Target, with Target being the surviving
wholly owned subsidiary of Ardmore (the “
Surviving Corporation ”),
pursuant to this Agreement, the Certificate of Merger in the form
annexed hereto as
Exhibit A (the
“
Certificate of Merger ”),
the Articles of Merger in the form annexed hereto as
Exhibit B ,
(the “
Articles of Merger ”),
the Delaware General Corporation Law (“
DGCL ”)
and the British Virgin Islands Business Companies Act (the
“
B.V.I. Corporation Law ”);
WHEREAS ,
simultaneously with and conditioned upon, the Effective Time of the
Merger, Ardmore will have received subscription agreements for the
purchase of securities of Ardmore in a proposed offering thereof,
and the gross proceeds therefrom shall be no less than $1,000,000
(the “
Offering ”);
WHEREAS ,
the parties desire to provide for certain undertakings, conditions,
representations, warranties and covenants in connection with the
transactions contemplated hereby.
AGREEMENT
NOW, THEREFORE ,
in consideration of the premises and of the mutual representations,
warranties and covenants herein contained and intending to be
legally bound hereby, the parties hereto agree as
follows:
1.
Definitions .
As used in this Agreement, the following terms shall have the
meanings set forth below:
“
Accredited Investor ”
has the meaning ascribed to such term by Rule 501(a) promulgated
under the Securities Act.
“
Affiliates ”
means with respect to any Person, (a) each other Person that
controls, is controlled by, or is under common control with, such
Person, (b) each other Person that holds a Material Interest in
such Person, (c) each other Person that serves as a director,
officer, general partner, executor or trustee of such Person (or in
a similar capacity), (d) each other Person in which such Person
holds a Material Interest and (e) each other Person with respect to
which such Person serves as a general partner or a trustee (or in a
similar capacity). For purposes of this definition “
Material Interest ”
means direct or indirect beneficial ownership (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended) of
voting securities or other voting interests representing at least
10% of the outstanding voting power of an entity or equity
securities or other equity interests representing at least 10% of
the outstanding equity securities or equity interests in an
entity.
“
Agreement ”
means this Agreement as defined in the preamble
hereto.
“
Ardmore Stock ”
means the common stock of Ardmore.
“
B.V.I. ”
means British Virgin Islands.
“
Certificate of Merger ”
has the meaning provided in the Recitals.
“
Certifications ”
shall have the meaning ascribed to such term by
Section 6(d)(4) .
“
Charleston’s Financial Statements
” mean the (i) the audited balance sheet of Target as of
October 31, 2007 and (ii) the unaudited condensed consolidated
balance sheet of and for Target and its consolidated subsidiaries
as of January 31, 2008 and 2007, and the related statements of
operations and comprehensive income, cash flows and stockholders
equity (including related notes, if any) for the three months then
ended.
“
Closing ”
has the meaning provided in
Section 7 .
“
Code ”
means the Internal Revenue Code of 1986, as amended.
“
Constituent Corporations ”
means Merger Sub and Target, collectively.
“
Contemplated Transactions ”
means the transactions contemplated by this Agreement and the
Transaction Documents, including without limitation, the
transactions contemplated by the Offering.
“
Contract ”
means any agreement, contract, license, lease, instrument, note,
bond, mortgage, indenture, guarantee or other legally binding
commitment or obligation, whether oral or written.
“
Effective Time ”
has the meaning provided in
Section 7 .
“
Encumbrance ”
means any mortgage, deed of trust, pledge, lien, security interest,
charge, claim or other security arrangement of any nature
whatsoever, whether voluntarily or involuntarily given, including
any conditional sale or title retention arrangement, and any
Assignment, deposit arrangement or lease intended as , or having
the effect of, security and any filed financing statement or other
notice of any of the foregoing (whether or not an Encumbrance is
created or exists at the time of the filing).
“
Exchange Act ”
means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
“
Financial Statements ”
means collectively, Tianjin Yayi’s Financial Statements and
Charleston’s Financial Statements.
“
GAAP ”
means generally accepted accounting principles in the United
States.
“
Governmental Authorization ”
means any permit, license, franchise, approval, consent,
permission, confirmation, endorsement, waiver, certification,
registration, qualification, clearance or other authorization
issued, granted, given or otherwise made available by or under the
authority of any Governmental Entity or pursuant to any Legal
Requirement.
“
Governmental Entity ”
means FINRA and any of its Affiliates, any nation, state,
municipality and any federal, state, local, foreign, provincial or
supranational court or governmental agency, authority,
instrumentality or regulatory body as the case may be.
“
Indebtedness ”
means indebtedness for borrowed money or the equivalent or
represented by notes, bonds or other similar instruments or letters
of credit (or reimbursement agreements in respect thereof) or
representing the balance deferred and unpaid of the purchase price
of any property (other than trade payables constituting current
liabilities and personal property leases), and including, without
limitation, capital lease obligations, including all accrued and
unpaid interest thereon, and applicable prepayment, breakage or
other premiums, fees or penalties and the costs of discharging such
indebtedness, all as determined in accordance with
GAAP.
“
Indemnification Agreement ”
means the agreement in the form annexed hereto as
Exhibit C .
“
Indemnified Parties ”
has the meaning set forth in
Section 11(a) .
“
Legal Requirement ”
shall mean any federal, state, local, provincial, foreign,
international, multinational or other statute, law, treaty, rule,
regulation, guideline, administrative order, directives, ordinance,
constitution or principle of common law (or any interpretation
thereof by a Governmental Entity).
“
Liability ”
or “
Liabilities ”
has the meaning ascribed to such term in
Section 6(h) .
“
Losses ”
has the meaning set forth in Section 11(a).
“
Material Adverse Effect ”
means:
(a)
with
respect to Target, an effect that would be materially adverse:
(i) to the business, results of operation or financial
condition of Target or Tianjin Yayi; (ii) to Target’s
ability to perform any of its material obligations under this
Agreement or to consummate the Merger; or (iii) to the ability
of the Surviving Corporation or Ardmore to conduct the
business of Target (including, for avoidance of doubt Tianjin
Yayi) following the Effective Time or the ability of Target to
exercise full rights of ownership of Target or its Assets or
business; or
2
(b)
with
respect to Ardmore, an effect that would be materially adverse
(i) to the business, results of operation, or financial
conditions of Ardmore and its subsidiaries, considered as a
whole; or (ii) to Ardmore’s ability to perform any of
its material obligations under this Agreement or to consummate
the Merger; or (iii) to the ability of the Surviving
Corporation or Ardmore to conduct the business of Target
following the Effective Time or the ability of Ardmore to
exercise full rights of ownership of Target or its assets or
business; or (iv) to the ability of Ardmore to prepare, file
and remain in compliance with its SEC Reports (as hereinafter
defined) and other reporting obligations under the Securities
Laws (as hereinafter defined), or (v) to the trading of the
Ardmore common stock or the ability of brokers to maintain
quotations for its common stock on the OTC Bulletin
Board;
provided ,
however ,
that in determining whether a Material Adverse Effect has occurred
there shall be excluded any effect on the referenced party the
cause of which is (i) general changes in conditions in the dairy or
livestock or cheese industries, in the financial markets or in the
global or United States economy and (ii) any action or
omission of Target or Ardmore or Merger Sub taken with the prior
written consent of Ardmore or Target, as applicable, in
contemplation of the Merger.
“
Merger ”
is defined in the recitals hereto.
“
Merger Sub Stock ”
has the meaning provided in
Section 6(b)(1) .
“
Off Balance Sheet Arrangement ”
shall have the meaning ascribed to such term by Item 303 (a)(4)(ii)
of Regulation S-K.
“
Person ”
means any individual and any corporation, partnership, limited
liability company, firm, trust, or other business entity and any
Governmental Entity.
“Registry” means
the B.V.I. Registry of Corporate Affairs.
“
Rights ”
means (i) warrants, options, rights, convertible securities and
other arrangements or commitments which obligate an entity to issue
or dispose of any of its capital stock or shares, (ii) stock or
share appreciation rights, performance units and other similar
stock-based rights whether they obligate the issuer thereof to
issue stock or shares or other securities or to pay cash and (iii)
the right to require the registration under Securities Laws of the
issuance, sale, resale or any other transactions involving
securities.
“
Sarbanes Act ”
means the Sarbanes-Oxley Act of 2002, as amended, and the rules and
regulations promulgated thereunder or with respect
thereto.
“
SEC ”
means the Securities and Exchange Commission.
“
SEC Reports ”
means all forms, reports, registration statements, schedules and
documents filed, or required to be filed, by Ardmore pursuant to
the Securities Laws.
“
Securities Act ”
means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“
Securities Laws ”
means the Securities Act; the Exchange Act; the Investment Company
Act of 1940, as amended; the Investment Advisers Act of 1940, as
amended; the Trust Indenture Act of 1939, as amended; the Sarbanes
Act; the rules and regulations of SEC promulgated thereunder; and
the blue sky and other Legal Requirements of any state or
jurisdiction that are applicable to the transactions in securities
generally.
“
Stockholders ”
means all Persons who hold issued and outstanding Target Stock as
of the Effective Time.
“
Subsidiary ”
or “
Subsidiaries ”
means with respect to any party, any corporation, company,
partnership or other organization, whether incorporated or
unincorporated, which is consolidated with such party for financial
reporting purposes.
“
Surviving Corporation ”
has the meaning provided in the recital hereto.
“
Tianjin Yayi Financial Statements ”
means the (i) audited balance sheet of Tianjin Yayi and its
consolidated subsidiaries as of October 31, 2007 and 2006, and the
related statements of operations and comprehensive income, cash
flows and stockholders’ equity (including related notes, if
any) for the years then ended and (ii) unaudited balance sheet of
Tianjin Yayi and its consolidated subsidiaries as of and for the
three months ended January 31, 2008 and 2007 and
the related statements of operations and comprehensive income, cash
flows and stockholders equity (including related notes, if any) for
the three months then ende d
“
Target Stock ”
means the shares in Target.
3
“
Tax ”
collectively, “Taxes” means all taxes, however
denominated, including any interest, penalties, criminal sanctions
or additions to tax (including, without limitation, any
underpayment penalties for insufficient estimated tax payments) or
other additional amounts that may become payable in respect thereof
(or in respect of a failure to file any Tax Return when and as
required), imposed by any Governmental Entity, which taxes shall
include, without limiting the generality of the foregoing, all
income taxes, payroll and employment taxes, withholding taxes
(including withholding taxes in connection with amounts paid or
owing to any employee, independent contractor, creditor,
stockholder or other person or entity), unemployment insurance
taxes, social security (or similar) taxes, sales and use taxes,
excise taxes, franchise taxes, gross receipts taxes, occupation
taxes, real and personal property taxes, stamp taxes, value added
taxes, transfer taxes, profits or windfall profits taxes, licenses
in the nature of taxes, estimated taxes, severance taxes, duties
(custom and others), workers’ compensation taxes, premium
taxes, environmental taxes (including taxes under Section 59A of
the Code), disability taxes, registration taxes, alternative or
add-on minimum taxes, estimated taxes, and other fees, assessments,
charges or obligations of the same or of a similar
nature.
“
Tax Return ,”
collectively, “
Tax Returns ”
means all returns, reports, estimates, information statements or
other written submissions, and any schedules or attachments
thereto, required or permitted to be filed pursuant to Legal
Requirements including but not limited to, original returns and
filings, amended returns, claims for refunds, information returns,
ruling requests, administrative or judicial filings, accounting
method change requests, responses to revenue agents’ reports
(federal, state or local) and settlement documents.
“
Tianjin Yayi ”
means Tianjin Yayi Industrial Co. Ltd., an entity organized and
existing under the laws of the People’s Republic of
China.
“
Transaction Documents ”
means the Agreement and the agreements, certificates, documents and
instruments to be entered into in connection
therewith.
“
Transaction Expenses ”
means all fees, costs, expenses and disbursements, incurred by
Ardmore, Principal Shareholder, the Stockholders, and/or Target in
connection with the transactions contemplated by this Agreement,
the Merger and the other agreements referenced or provided for
herein, including, without limitation, (a) the fees and expenses of
any legal counsel retained by the Principal Shareholder, Ardmore,
or Target; (b) the fees and expenses of any accountants of Target
including any indirect fees and expenses resulting from outsourcing
or through service agreements; (c) any amounts payable in
accordance with
Section 16(l) of
this Agreement; and (d) any fees and expenses of any other counsel,
accountants, financial advisors or other similar professionals with
respect to services rendered to the Principal Shareholder or Target
in connection with the transactions contemplated by this
Agreement.
In
addition, the following terms shall be interpreted as set
forth below:
(a)
The
words “hereof,” “herein,” and
“hereunder” and words of similar import, when used
in this Agreement, shall refer to this Agreement as a whole
including the schedules and exhibits hereto and not to any
particular provisions of this Agreement.
(b)
Terms
defined in the singular shall have a comparable meaning when
used in the plural, and vice-versa.
(c)
References
to the “
Knowledge ”
of (i) a natural Person shall refer to the conscious awareness of
facts by such person after due inquiry and (ii) an entity shall
refer to the actual knowledge of the directors and officers or
similar control persons of the entity, and the knowledge of any
fact or matter which any Person would have following reasonable
inquiries of those employees and directors or former employees and
directors of the entity of whom such Persons would reasonably
believe would have actual knowledge of such matters
presented.
(d)
References
to an “
Exhibit ”
or to a “
Schedule ”
are, unless otherwise specified, to one of the Exhibits or
Schedules attached to or referenced in this Agreement, and
reference to a “Section” is, unless otherwise
specified, to one of the Sections of this Agreement.
2.
Plan of Reorganization .
The parties to this Agreement do hereby agree that Merger Sub shall
be merged with and into Target upon the terms and conditions set
forth herein and in accordance with the provisions of the DGCL and
the B.V.I. Corporation Law to the extent that such law is relevant
to transactions of this type. It is the intention of the parties
hereto that this transaction qualify as a tax-free reorganization
under Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as
amended, and related sections thereunder.
4
3.
Terms of Merger .
In accordance with the provisions of this Agreement and the
requirements of applicable law, Merger Sub shall be merged with and
into Target as of the Effective Time (the terms “
Closing ”
and
“Effective Time ”
are defined in
Section 7 hereof).
Target shall be the Surviving Corporation and resulting wholly
owned subsidiary of Ardmore and the separate existence of Merger
Sub shall cease when the Merger shall become effective.
Consummation of the Merger shall be upon the following terms and
subject to the conditions set forth herein:
(a)
Corporate Existence .
(1)
Commencing
with the Effective Time, the Surviving Corporation shall
continue its corporate existence as a B.V.I. limited liability
company and as a wholly owned subsidiary of Ardmore and (i) it
shall thereupon and thereafter possess all rights, privileges,
powers, franchises and property (real, personal and mixed) of
each of the Constituent Corporations; (ii) all debts due to
either of the Constituent Corporations, on whatever account,
all causes in action and all other things belonging to either
of the Constituent Corporations shall be taken and deemed to
be transferred to and shall be vested in the Surviving
Corporation by virtue of the Merger without further act or
deed; and (iii) all rights of creditors and all Encumbrances,
if any, upon any property of any of the Constituent
Corporations shall be preserved unimpaired, limited in
Encumbrances to the property affected by such Encumbrances
immediately prior to the Effective Time, and all debts,
liabilities and duties of the Constituent Corporations shall
thenceforth attach to the Surviving Corporation.
(2)
At
the Effective Time, (i) the Memorandum and Articles of
Association of Target, as existing immediately prior to the
Effective Time, shall be and remain the Memorandum and
Articles of Association of the Surviving Corporation; (ii) the
members of the Board of Directors of the Target holding office
immediately prior to the Effective Time shall remain as the
members of the Board of Directors of the Surviving Corporation
(if on or after the Effective Time a vacancy exists on the
Board of Directors of the Surviving Corporation, such vacancy
may thereafter be filled in a manner provided by applicable
law and the Memorandum and Articles of Association of the
Surviving Corporation); and (iii) until the Board of Directors
of the Surviving Corporation shall otherwise determine, all
persons who hold offices of the Target at the Effective Time
shall continue to hold the same offices of the Surviving
Corporation.
(b)
Conversion of Securities .
As of the Effective Time and without any action on the part of
Ardmore, Merger Sub, Target or the holders of any of the securities
of any of the foregoing, each of the following shall
occur:
(1)
Each
share of Target Stock issued and outstanding immediately prior
to the Effective Time, shall automatically and without any
further action required by any party, be converted into the
right to receive 446.5 shares of Ardmore Stock. All such
shares of Target Stock shall no longer be outstanding and
shall automatically be canceled and shall cease to exist, and
each certificate previously evidencing any such shares shall
thereafter represent the right to receive, upon the surrender
of such certificate in accordance with the provisions of
Section 4 hereof, certificates evidencing such number of
shares of Ardmore Stock, respectively, into which such shares
of Target Stock were converted. No fractional shares of
Ardmore Stock will be issued in the Merger; any fractional
share otherwise issuable shall be rounded to the nearest whole
share. The holders of such certificates previously evidencing
shares of Target Stock outstanding immediately prior to the
Effective Time shall cease to have any rights with respect to
such shares of Target Stock except as otherwise provided
herein or by law;
(2)
Any
shares of Target Stock held as treasury shares immediately
prior to the Effective Time shall automatically be canceled
and extinguished without any conversion thereof and no payment
shall be made with respect thereto; and
(3)
All
shares of capital stock of Merger Sub issued and outstanding
immediately prior to the Effective Time shall automatically
converted into one share in the Surviving Corporation, all of
which shall be wholly owned by Ardmore.
(c)
Reaffirmation of Warranties and Representations
.
Ardmore hereby expressly reaffirms all of the warranties and
representations made by the Ardmore in
Section 4 of
each of the Securities Purchase Agreements entered into in
connection with the Offering.
(d)
Other Matters .
At the Closing, the existing directors of Ardmore shall nominate
and elect to the Board of Directors of Ardmore the persons
designated by Target effective as of the Effective Time
.
4.
Exchange of Certificates .
On
or as soon as practicable after the Effective Date, Target will
cause all holders of Target Stock to surrender to Ardmore’s
transfer agent for cancellation certificates representing their
shares of Target Stock, against delivery of certificates
representing the shares of Ardmore Stock for which the shares of
Target Stock are to be converted in the Merger. Until surrendered
and exchanged as herein provided, each outstanding certificate
which, prior to the Effective Time, evidenced Target Stock shall be
deemed for all corporate purposes to evidence ownership of the same
number of shares of Ardmore Stock into which the shares of Target
Stock evidenced by such Target certificate shall have been so
converted. All shares of Merger Sub shall remain held by Ardmore
and after the Effective Time be deemed converted into shares of the
Surviving Corporation as contemplated by Section
3(b)(3).
5
5.
Representations and Warranties of Target
.
Target hereby represents and warrants as follows:
(a)
Organization, Standing and Authority of Target and Tianjin
Yayi .
(1)
Target is a company duly incorporated, validly existing and in
good standing under the laws of the B.V.I., with the requisite
corporate power and authority to carry on its business as now
conducted, and is duly qualified to do business in any
jurisdiction where its ownership or leasing of property or the
conduct of its business requires such qualification, except
where the failure to be so qualified would not have a Material
Adverse Effect on Target and its consolidated
subsidiaries.
(2)
Tianjin Yayi is an entity duly organized and validly existing
under the laws of the People’s Republic of China, with
the requisite entity power and authority to carry on its
business as now conducted, and is duly qualified to do
business in any jurisdiction where its ownership or leasing of
property or the conduct of its business requires such
qualification, except where the failure to be so qualified
would not have a Material Adverse Effect on Target and its
consolidated subsidiaries. Tianjin Yayi is a wholly owned
subsidiary of Target.
(b)
Authorized and Effective Agreement .
(1)
Target
has the requisite corporate power and authority to enter into
and perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement by
Target and the consummation of the Merger have been duly
authorized by the board of directors and shareholders of
Target, which authorization constitutes all necessary
corporate action in respect thereof and which has not been
rescinded, revoked or otherwise adversely
modified.
(2)
This
Agreement has been duly executed and delivered by Target and
constitutes the legal, valid and binding obligation of Target,
enforceable against it in accordance with its terms subject,
as to enforceability, to bankruptcy, insolvency and other
Legal Requirements of general applicability relating to or
affecting creditors’ rights and to general equity
principles.
(3)
Neither
the execution and delivery of this Agreement, nor consummation
of the Merger and the other transactions contemplated hereby,
nor compliance by Target with any of the provisions hereof
shall (i) conflict with or result in a breach of any
provision of the Memorandum and Articles of Association of
Target or (ii) violate any Legal Requirements applicable to
Target.
(4)
Other
than the filing of the Certificate of Merger with the Delaware
Secretary of State and the Articles of Merger with the
Registry, no consent, approval or authorization of, or
declaration, notice, filing or registration with, any
Governmental Entity, or any other Person, is required to be
made or obtained by Target on or prior to the Effective Time
in connection with the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated hereby.
(c)
Capital Structure of Target .
(1)
As
of the date of this Agreement, the Target is authorized to
issue 50,000 shares, all of which are presently issued and
outstanding, and no shares are held as treasury shares. No
additional shares will be issued by Target between the date of
this Agreement and the Effective Time.
(2)
Except
as reflected in Charleston’s Financial Statements, all
outstanding shares of Target Stock are, as of the date of this
Agreement, and shall be at Closing, duly authorized, validly
issued, fully paid and non-assessable. There are no Rights
existing or issuable relating to the issued or unissued shares
or other securities of Target. There are no outstanding
obligations of Target to repurchase, redeem or otherwise
acquire any shares in Target.
(d)
Financial Statements .
Each of the Charleston Financial Statements and the Tianjin Yayi
Financial Statements fairly present in all material respects the
financial position of Charleston and Tianjin Yayi, as the case may
be, as of the dates thereof and the results of such entity’s
operations for the periods covered thereby. The Financial
Statements have been prepared in accordance with GAAP (except as
may be indicated therein or in the notes thereto and except with
respect to unaudited financial statements for presentation items
and normal audit adjustments).
(e)
Material Adverse Change .
Except for changes arising in the ordinary course of business,
(including Tianjin Yayi’s borrowing of funds subsequent to
January 31, 2008), since January 31, 2008, there has not been any
change in the financial condition, results of operations, prospects
or business of Target and its consolidated subsidiaries which
would, individually or in the aggregate, have a Material Adverse
Effect with respect to Target and its consolidated subsidiaries
taken as a whole.
6
(f)
Minute Books, Financial Records .
Target has made its corporate financial records, minute books, and
other corporate documents and records available for review to
present management of Ardmore prior to the Closing, during
reasonable business hours and on reasonable notice.
(g)
Status of Stockholders; Access to SEC Reports
.
Each of the Stockholders is either (i) an Accredited Investor or
(ii) is not a U.S. Person (as such term is used in Rule 902(k)
promulgated under the Securities Act). Each Stockholder has had
access to the SEC Reports filed during the one year ending the date
hereof.
6.
Representations and Warranties with respect to Ardmore and
Merger Sub .
Principal Shareholder hereby represents and warrants as
follows:
(a)
Organization, Standing and Authority of Purchaser
.
Each of Ardmore and Merger Sub are corporations duly organized,
validly existing and in good standing under the laws of the State
of Delaware, with the full corporate power and authority to own,
lease and operate its property and to carry on its business as now
being conducted and is duly qualified to do business and in good
standing to do business in any jurisdiction where the ownership or
leasing of the property or the conduct of its business requires
such qualification, except where the failure to so qualify would
not have a Material Adverse Effect.
(b)
Capital Structure of Ardmore and Merger Sub .
(1)
As
of the date of this Agreement, Ardmore’s authorized
capital stock consists of (i) 100,000,000 shares of Ardmore
Stock, of which 2,675,000 shares are issued and outstanding,
and (ii) 10,000,000 shares of preferred stock par value $.001
per share (“
Ardmore Preferred Stock ”),
of which no shares are presently issued and outstanding. At the
Effective Time, Ardmore’s authorized capital stock will
consist solely of 100,000,000 shares of Ardmore Stock, and
10,000,000 shares of preferred stock.
Schedule 6(b)(1) sets
forth the securities and Rights of Ardmore that will be outstanding
at the Effective Time as well as all securities currently being
subscribed for and to be issued at the Closing of the Offering,
after giving effect to the Contemplated Transactions. As of the
date of this Agreement and as at the Effective Time, the authorized
capital stock of Merger Sub will consist of 1,000 authorized shares
of $.001 par value common stock (the “
Merger Sub Stock ”),
of which, all 1,000 shares will be issued and outstanding and owned
by Ardmore, free and clear of all Encumbrances. Immediately after
the Effective Time there shall be no more than 25,000,000 shares of
Ardmore Stock outstanding other than those shares issuable in the
Offering. Except as provided by the Transaction Documents, there
are no (and will at Closing be no) outstanding Rights or
obligations of Ardmore or Merger Sub to sell, issue, transfer or
assign now or in the future any Ardmore Stock, Ardmore Preferred
Stock, or Merger Sub Stock, and no preferred stock have been
reserved for issuance. Ardmore has not designated or agreed to
designate the rights, preferences or privileges of any Ardmore
preferred stock.
(2)
All
outstanding shares of Ardmore Stock and Merger Sub Stock are,
and shall be at Closing, duly authorized, validly issued,
fully paid and non-assessable. Except as provided by the
Transaction Documents, as of the date hereof and at the
Closing, there are no and will be no (i) Rights relating to
the issued or unissued capital stock or other securities of
either Ardmore or Merger Sub, (ii) voting trusts, proxies or
other agreements, commitments or understandings of any
character to which Ardmore or Merger Sub is a party or by
which Ardmore or Merger Sub is bound with respect to the
voting of any capital stock of Ardmore or Merger Sub nor (iii)
outstanding obligations to repurchase, redeem or otherwise
acquire any shares of capital stock of Ardmore or Merger
Sub.
(3)
The
shares of Ardmore Stock to be issued and delivered pursuant to
the Transaction Documents, have been reserved for issuance and
will, when so issued and delivered, pursuant to the terms
thereof constitute duly authorized, validly and legally
issued, fully-paid, non-assessable shares of Ardmore Stock,
will not be issued in violation of any preemptive or similar
rights and will be issued free and clear of all
Encumbrances.
(c)
Authorized and Effective Agreement .
(1)
Each
of Merger Sub and Ardmore has the corporate power and
authority to enter into this Agreement and the Transaction
Documents to which it is a party and to perform its
obligations hereunder and thereunder. Principal Shareholder
has the limited liability company power and authority to enter
into this Agreement and the Transaction Documents to which it
is a party and to perform its obligations
hereunder.
7
(2)
The
execution, delivery and performance of this Agreement and the
Transaction Documents and the consummation of the Merger and
the Contemplated Transactions have been duly authorized by the
respective Boards of Directors of Ardmore and Merger Sub and
by Ardmore as the sole stockholder of Merger Sub, and by
Principal Shareholder as majority stockholder of Ardmore,
which authorizations constitute all necessary corporate action
in respect thereof and which has not been rescinded, revoked
or otherwise adversely modified .
(3)
This
Agreement, and the Transaction Documents to which it is a
party, have been duly executed and delivered by each of
Ardmore and Merger Sub and constitutes the legal, valid and
binding obligation of Principal Shareholder, Ardmore and
Merger Sub, enforceable against Principal Shareholder, Ardmore
and Merger Sub, respectively, in accordance with its terms,
except as enforcement may be limited by applicable bankruptcy,
insolvency or other Legal Requirements of general
applicability relating to or affecting creditor’s rights
generally and to general equity principles.
(4)
Neither
the execution and delivery of this Agreement will constitute a
breach of any Contract to which Principal Shareholder, Ardmore
or Merger Sub is a party or to which it is otherwise subject
and will not violate any judgment, decree, order, writ or
Legal Requirement applicable to Ardmore, Merger Sub or their
properties.
(5)
Neither
the execution and delivery of this Agreement or the
Transaction Documents to which it is a party, nor the
consummation of the Merger and the Contemplated Transactions,
nor compliance by Principal Shareholder, Ardmore or Merger Sub
with any of the provisions hereof or thereof, shall conflict
with or result in a breach of the respective Articles or
Certificate of Incorporation or by-laws of either Ardmore or
Merger Sub or the Articles of Organization or Operating
Agreement of Principal Shareholder.
(d)
Periodic Reports; Financial Statements of Ardmore and Merger Sub
Compliance with
Securities .
(1)
The
Ardmore Stock is registered pursuant to Section 12(g) of the
Exchange Act, and no action has been taken or contemplated
that would result in the suspension, cancellation or
termination of such registration.
(2)
Except
as set forth on
Schedule 6(d)(2 ),
Ardmore has timely filed or otherwise furnished all SEC Reports
required by Securities Laws (including without limitation, Sections
13 or 15(d) of the Exchange Act Rules 13a-14 and 15d-14 under the
Exchange Act and Sections 302 and 906 of the Sarbanes Act,) and the
other documents required to be fi
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