AGREEMENT FOR THE EXCHANGE OF SECURITIES BY AND AMONG THE AMERICAS LEARNING CENTERS, INC. (A FLORIDA CORPORATION) AND MAJORITY SHAREHOLDERS AND NOTEHOLDERS OF THE AMERICAS LEARNING CENTERS, INC. AND SEAWAY VALLEY CAPITAL CORPORATION (A DELAWARE...
FOR
THE EXCHANGE OF SECURITIES
BY
AND AMONG
THE
AMERICAS LEARNING CENTERS, INC.
(A
FLORIDA CORPORATION)
AND
MAJORITY
SHAREHOLDERS AND NOTEHOLDERS OF
THE
AMERICAS LEARNING CENTERS, INC.
AND
SEAWAY
VALLEY CAPITAL CORPORATION
(A
DELAWARE CORPORATION)
AND
XXXXXXX
XXXXXXX HARDWARE COMPANY
(A
NEW YORK CORPORATION)
1
THIS
AGREEMENT (the “Agreement”) is made this 17th day of December, 2008, (the
“Effective Date”) by and among
THE AMERICAS LEARNING CENTERS, INC, (“ALRN”) a Florida corporation,
the MAJORITY SHAREHOLDERS OF
THE AMERICAS LEARNING CENTERS, INC. and the NOTEHOLDERS OF THE AMERICAS LEARNING
CENTERS, INC., (the “Majority Shareholders of The Americas Learning
Centers, Inc., and the “Noteholders of The Americas Learning Centers, Inc.”,
collectively herein shall be referred to as the “Majority Stakeholders of The Americas
Learning Centers, Inc.”), on the one hand, and on the other
hand, XXXXXXX
XXXXXXX HARDWARE COMPANY, (“PHHC”), a New York corporation, and the SEAWAY VALLEY CAPITAL CORPORATION,
(“SVCC”), a Delaware Corporation, which is the owner
of 100% of the
capital stock of the PHHC. (All the aforementioned
persons and entities may be collectively referenced herein as the “Parties”, or
individually as a “Party”.)
WHEREAS, SVCC desires to acquire
eighty-four and twenty-nine percent (84.29%) of all of the issued and
outstanding common stock and 100% of all issued and outstanding Preferred Stock
of ALRN from its
Majority Shareholders (the “ALRN Shares”) and 100% of the outstanding ALRN
common stock purchase warrants, and shall have the right to have acquired 100%
of the outstanding ALRN Promissory Notes from the Noteholders of The Americas
Learning Centers, Inc., in exchange for which (i) ALRN will receive 100% of the
capital stock of the PHHC (the “PHHC Shares”) and
the Majority Stakeholders of The Americas Learning Centers, Inc. shall receive a
initial payment at Closing (as hereinafter defined) of thirty-five thousand
dollars ($35,000.00 U.S.), and Demand Convertible Promissory Notes (the
“Notes”), of even date, in aggregate principal amount of two-hundred and fifteen
thousand dollars, ($215,000.00 U.S.), by and between Xxxxxxx’x Stores, Inc. (“HSI”),
the successor to ALRN,
and themselves, as guaranteed by SVCC, which shall be
equivalent to a total cash compensation to the Majority Stakeholders of The
Americas Learning Centers, Inc., in an amount of two hundred and fifty thousand
dollars (($250,000 U.S.); and
WHEREAS, the Majority
Shareholders of The Americas Learning Centers, Inc. agree to exchange the ALRN
Shares for the PHHC Shares and the Notes, and the Noteholders of The Americas
Learning Centers, Inc. agree to accept payment of the Notes in exchange for
transferring title of the existing ALRN debt obligations (the
“ALRN Debt”) to SVCC, or
its designee; and
WHEREAS, ALRN is desirous to
acquire PHHC as a
wholly-owned subsidiary, from SVCC.
NOW, THEREFORE, in
consideration of the mutual promises, covenants and representations contained
herein, the parties hereto agree as follows:
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ARTICLE
I
1.1 Exchange of Securities, Promissory
Note and Payment of Deposit. Upon the closing of this
Agreement (the “Closing”), subject to the terms and
conditions of this Agreement, the Majority Shareholders of The Americas Learning
Centers, Inc., will deliver to SVCC eighty-four and
twenty-nine percent (84.29%) of all of the issued and outstanding
common stock and 100% of the issued and outstanding Preferred Stock of ALRN (the “ALRN Shares”) in
exchange for which (i) the Board of Directors of SVCC shall direct that 100% of
the PHHC Shares be transferred directly to ALRN, and that it make an
initial payment of thirty-five thousand dollars ($35,000.00 U.S.) at Closing
(the “Deposit”), and cause HSI to issue the Notes, of
even date, in aggregate total principal amount of two hundred and fifteen
thousand dollars, ($215,000.00 U.S.), by and between itself and the Majority
Stakeholders of The Americas Learning Centers, Inc., which shall be payable to
the Escrow Agent (as hereinafter defined) pursuant to the terms and conditions
of the Notes.
1.2 Escrow
Agreement. At Closing: (i) SVCC will cause to be
deposited with Gold Coast Professional Services, P.A., as escrow agent (the
“Escrow Agent”), all the ALRN Shares received in this share exchange for future
delivery to them upon release from escrow, as set forth in that certain escrow
agreement of even date (the “Escrow Agreement”) by and among the parties hereto
and the Escrow Agent; and (ii) the Noteholders of The Americas Learning Centers,
Inc. will deposit with the Escrow Agent their ALRN Debt, for their future
release from escrow, as set forth in the Escrow Agreement. The Escrow
Agreement shall be substantially in the form attached hereto as Exhibit
1.2.
1.3 Effectiveness of
Agreement. All Parties hereto, agree this Agreement and all
agreements connected to it, including, but not limited to, the Escrow Agreement
and the Notes, shall have no force and effect until the Deposit is received and
collected by the Escrow Agent on behalf of the Stakeholders of The Americas
Learning Centers, Inc.
ARTICLE
II
Representations
and Warranties of XXXXXXX XXXXXXX HARDWARE COMPANY
XXXXXXX XXXXXXX HARDWARE
COMPANY hereby represents and warrants to ALRN that:
2.1 Organization. PHHC is a corporation duly
organized, validly existing and in good standing under the laws of New York, has
all necessary corporate powers to own its properties and to carry on its
business as now owned and operated by it, and is duly qualified to do business
and is in good standing in each of the states where its business requires
qualification.
2.2 Capital Stock. The PHHC Shares
consist of an aggregate of ninety-six (96) shares of PHHC common stock outstanding,
par value $100.00. There are no outstanding subscriptions, options, rights,
warrants, debentures, instruments, convertible securities or other agreements or
commitments obligating PHHC
to issue any additional PHHC shares of any
class.
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2.3 Subsidiaries. PHHC currently operates no
divisions, and is the sole operating entity represented by the PHHC Shares of
stock.
2.4 Directors and Executive
Officers. The names and titles of the directors and executive officers of
PHHC are as
follows:
|
Name
|
Position
|
|
Xxxxxx
X. Xxxxxxxxxx
|
Chairman,
President/CEO
|
2.5 Financial Statements. On or
before the Closing Date, PHHC shall provide ALRN with unaudited financial
statements of PHHC for
the fiscal year ended December 31, 2007 and the first three (3) quarters of 2008
(the “XXXXXXX XXXXXXX HARDWARE COMPANY Financial Statements”). PHHC’s Financial Statements
will be prepared in accordance with generally accepted accounting principles and
practices consistently followed by PHHC throughout the
periods indicated,
and fairly present the financial position of PHHC as of the date of the
balance sheets included in the XXXXXXX XXXXXXX HARDWARE COMPANY Financial
Statements and the results of operations for the periods indicated.
2.6 Absence of Changes. Since
September 30, 2008 there has not been any material change in the financial
condition or operations of PHHC, except as contemplated
by this Agreement. As used throughout this Agreement, “material”
means: Any change or effect (or development that, insofar as can be
reasonably foreseen, is likely to result in any change or effect) that causes
substantial increase or diminution in the business, properties, assets,
condition (financial or otherwise) or results of operations of a
party. Taken as a whole, material change shall not include changes in
national or international economic conditions or industry conditions generally;
changes or possible changes in statutes and regulations applicable to a party;
or the loss of employees, customers or suppliers by a party as a direct or
indirect consequence of any announcement relating to this
transaction.
2.7 Absence of Undisclosed
Liabilities. As of September 30, 2008, PHHC did not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in the XXXXXXX XXXXXXX HARDWARE COMPANY Financial
Statements.
2.8 Tax Returns. PHHC has filed all federal,
state and local tax returns required by law and has paid all taxes, assessments
and penalties due and payable. The provisions for taxes, if any, reflected in
the XXXXXXX XXXXXXX HARDWARE COMPANY Financial Statements are
adequate for the periods indicated. There are no present disputes as
to taxes of any nature payable by PHHC.
2.9 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, ALRN, its legal counsel and
accountants shall have the opportunity to meet with PHHC’s accountants and
attorneys to discuss the financial condition of PHHC during reasonable
business hours and in a manner that does not interfere with the normal operation
of PHHC’s
business. PHHC
shall make available to ALRN all books and records of
PHHC.
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2.10 Intellectual Property Rights.
PHHC owns or has the
right to use all trademarks, service marks, trade names, copyrights and patents
material to its business.
2.11 Compliance with Laws. To the
best PHHC’s knowledge,
PHHC has complied with,
and is not in violation of, applicable federal, state or local statutes, laws
and regulations, including federal and state securities laws, except where such
non-compliance would not have a material adverse impact upon its business or
properties.
2.12 Litigation. PHHC is not a defendant in any
suit, action, arbitration or legal, administrative or other proceeding, or
governmental investigation which is pending or, to the best knowledge of PHHC, threatened against or
affecting PHHC or its
business, assets or financial condition, except as described in Exhibit
2.12. PHHC is
not in default with respect to any order, writ, injunction or decree of any
federal, state, local or foreign court, department, agency or instrumentality
applicable to it. PHHC is not engaged in any
material litigation to recover monies due to it.
2.13 Authority. The Board of
Directors of PHHC has
authorized the execution of this Agreement and the consummation of the
transactions contemplated herein, and PHHC has full power and
authority to execute, deliver and perform this Agreement, and this Agreement is
a legal, valid and binding obligation of PHHC and is enforceable in
accordance with its terms and conditions. SVCC has agreed to and has
approved the terms of this Agreement and the exchange of securities contemplated
herein.
2.14 Ability to Carry Out
Obligations. The execution and delivery of this Agreement by PHHC and the performance by
PHHC of its obligations
hereunder in the time and manner contemplated will not cause, constitute or
conflict with or result in (a) any breach or violation of any of the provisions
of or constitute a default under any license, indenture, mortgage, instrument,
article of incorporation, bylaw, or other agreement or instrument to which PHHC is a party, or by which
it may be bound, nor will any consents or authorizations of any party other than
those hereto be required, (b) an event that would permit any party to any
agreement or instrument to terminate it or to accelerate the maturity of any
indebtedness or other obligation of PHHC, or (c) an event that
would result in the creation or imposition of any lien, charge or encumbrance on
any asset of PHHC.
2.15 Full Disclosure. None of the
representations and warranties made by PHHC herein or in any exhibit,
certificate or memorandum furnished or to be furnished by PHHC, or on its behalf,
contains or will contain any untrue statement of material fact or omit any
material fact the omission of which would be misleading.
2.16 Assets. PHHC’s assets are fully
included in the XXXXXXX XXXXXXX HARDWARE COMPANY Financial Statements,
and are not subject to any claims or encumbrances except as indicated
therein.
5
2.17 Material Contracts. PHHC’S material contracts will
be furnished to ALRN prior to Closing for its review.
2.18 Indemnification. PHHC agrees to indemnify,
defend and hold ALRN
harmless against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorney fees asserted by third
parties against ALRN
which arise out of, or result from (i) any breach by PHHC in performing any of its
covenants or agreements under this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or to be furnished by PHHC under this Agreement,
(ii) a failure of any representation or warranty in this Article II or (iii) any
untrue statement made by PHHC in this
Agreement.
2.19 Criminal or Civil Acts. For the period of five
years prior to the execution of this Agreement, no executive officer, director
or principal stockholder of PHHC has been convicted of a
felony crime, filed for personal bankruptcy, been the subject of a Commission or
NASD judgment or decree.
2.20
Restricted
Securities. PHHC and SVCC acknowledge that all of
the ALRN shares issued
by ALRN are restricted
securities and none of such securities may be sold or publicly traded except in
accordance with the provisions of the Securities and Exchange Act of 1933, as
amended.
ARTICLE
III
Representations
and Warranties of ALRN
ALRN represents and warrants
to SVCC and PHHC that:
3.1 Organization. ALRN is a corporation duly
organized, validly existing and in good standing under the laws of Florida, has
all necessary corporate powers to carry on its business, and is duly qualified
to do business and is in good standing in each of the states where its business
requires qualification.
3.2 Capital. The authorized
capital stock of ALRN
consists of 750,000,000 shares of $0.0001 par value Common shares, of which
approximately 179,000,000 shares shall be issued and outstanding at the time of
Closing; and 50,000,000 million shares of Preferred Stock, no par value, in two
Series: one (1) share of Series A Preferred Stock, no par value, of which one
(1) share will be issued and outstanding at the time of Closing, and twenty five
million (25,000,000) shares of Series B Preferred Stock, no par value, of which
no shares will be issued and outstanding at the time of Closing. All
of the outstanding Common and Preferred shares are duly and validly issued,
fully paid and non-assessable. There are no outstanding subscriptions, options,
rights, warrants, debentures, instruments, convertible securities or other
agreements or commitments obligating ALRN to issue any additional
shares of any class, except as listed in Exhibit
3.2.
3.3 Indebtedness. Except
for: (i) the Notes held by the Majority Shareholders with the aggregate value of
$345,559, attached hereto and held in escrow, and (ii) the indebtedness by
Xxxxxxx’x Stores, Inc. of $215,000 and exchanged pursuant to this Agreement,
ALRN shall have no indebtedness outstanding.
6
3.4 Subsidiaries. ALRN does not have any
subsidiaries or own any interest in any other enterprise.
3.5 Directors and Officers. The
name and title of the director and executive officer of ALRN are as
follows:
|
Name
|
Position
|
|
Xxxxxx
Xxxxxxx
|
Director,
President
|
|
Xxxxx
Xxxxxx
|
Director
|
|
Xxx
Xxxxxx
|
Director
|
|
Xxxxxxxx
Xxxxxxx
|
Director
|
|
Xxxxx
Xxxxxxx
|
Director
|
3.6 Financial Statements. On or
before Closing, ALRN
shall provide SVCC with
unaudited financial statements of ALRN for the fiscal quarter
ended September 30, 2008 (the “ALRN Financial Statement”). The ALRN
Financial Statement is prepared in accordance with generally accepted accounting
principles and practices consistently followed by ALRN throughout the
periods indicated,
and fairly present the financial position of ALRN as of the date of the
balance sheet included, and the results of operations for the period indicated.
3.7 Absence of Changes. Since
September 30, 2008, there has not been any material change in the financial
condition or operations of ALRN, except as contemplated
by this Agreement. As used throughout this Agreement, “material”
means: Any change or effect (or development that, insofar as can be
reasonably foreseen, is likely to result in any change or effect) that causes
substantial increase or diminution in the business, properties, assets,
condition (financial or otherwise) or results of operations of a
party. Taken as a whole, material change shall not include changes in
national or international economic conditions or industry conditions generally;
changes or possible changes in statutes and regulations applicable to a party;
or the loss of employees, customers or suppliers by a party as a direct or
indirect consequence of any announcement relating to this
transaction.
3.8 Absence of Undisclosed
Liabilities. As of September 30, 2008, ALRN did not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in the ALRN Financial Statement.
3.9 Tax Returns. ALRN has not failed to comply
with any federal, state and local tax returns in a manner that would have a
material, adverse impact on itself or PHHC or SVCC.
3.10 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, SVCC, its legal counsel and
accountants shall have the opportunity to meet with ALRN’s accountants and
attorneys to discuss the financial condition of ALRN during reasonable
business hours and in a manner that does not interfere with the normal operation
of ALRN’s
business.
7
3.11 Intellectual Property Rights.
ALRN has no trademarks,
service marks, trade names, copyrights or patents material to its
business.
3.12 Compliance with Laws. To the
best of ALRN’s
knowledge, ALRN
has complied with, and is not in violation of, applicable federal, state
or local statutes, laws and regulations, including federal and state securities
laws, except where such non-compliance would not have a material adverse impact
upon its business or properties.
3.13 Litigation. ALRN is not a defendant in any
suit, action, arbitration or legal, administrative or other proceeding, or
governmental investigation which is pending or, to the best knowledge of ALRN, threatened against or
affecting ALRN or its
business, assets or financial condition. ALRN is not in default with
respect to any order, writ, injunction or decree of any federal, state, local or
foreign court, department, agency or instrumentality applicable to
it. ALRN is
not engaged in any material litigation to recover monies due to it.
3.14 Authority. The Board of
Directors of ALRN has
authorized the execution of this Agreement and the consummation of the
transactions contemplated herein, and ALRN has full power and
authority to execute, deliver and perform this Agreement, and this Agreement is
a legal, valid and binding obligation of ALRN and is enforceable in
accordance with its terms and conditions.
3.15 Ability to Carry Out
Obligations. The execution and delivery of this Agreement by ALRN and the performance by
ALRN of its obligations
hereunder in the time and manner contemplated will not cause, constitute or
conflict with or result in (a) any breach or violation of any of the provisions
of or constitute a default under any license, indenture, mortgage, instrument,
article of incorporation, bylaw, or other agreement or instrument to which ALRN is a party, or by which
it may be bound, nor will any consents or authorizations of any party other than
those hereto be required, (b) an event that would permit any party to any
agreement or instrument to terminate it or to accelerate the maturity of any
indebtedness or other obligation of ALRN, or (c) an event that
would result in the creation or imposition of any lien, charge or encumbrance on
any asset of ALRN.
3.16 Full Disclosure. None of the
representations and warranties made by ALRN herein or in any exhibit,
certificate or memorandum furnished or to be furnished by ALRN, or on its behalf,
contains or will contain any untrue statement of material fact or omit any
material fact the omission of which would be misleading.
3.17 Assets. ALRN’s assets are fully
included in the ALRN Financial Statement, and are not subject to any claims or
encumbrances except as indicated therein.
3.18 Material Contracts. ALRN does not have any
material contracts.
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3.19 Indemnification. ALRN agrees to indemnify,
defend and hold SVCC
harmless against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorney which arise out of, or
result from (i) any breach by ALRN in performing any of its
covenants or agreements under this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or to be furnished by ALRN under this Agreement,
(ii) a failure of any representation or warranty in this Article III (iii) any
untrue statement made by ALRN in this Agreement, or
(iv) for a period of two years from the date hereof, claims of any nature made
against ALRN for activities undertaken prior to the date hereof.
3.20 Criminal or Civil Acts. For the period of five
years prior to the execution of this Agreement, no executive officer, director
or principal stockholder of ALRN has been convicted of a
felony crime, filed for personal bankruptcy, been the subject of a Commission or
NASD judgment or decree.
3.21 Representation as Never Having Been a
“Shell”. ALRN
was incorporated as the “Harvard Learning Centers, Inc.” in the State of
Florida on October 31, 2006 (“Incorporation Date”) having been converted from a
Delaware corporation, with an organizational date (“Organizational Date”) deemed
effective of May 24, 1995.From its Organizational Date to the Incorporation
Date, to the date hereof, ALRN has always been an
operating company and has never been a “shell” as that term is defined in SEC
Release 33-8587.
ARTICLE
IV
Covenants
Prior to Closing
4.1 Investigative Rights. Prior to
Closing, each party shall provide to the other, and such other party’s counsel,
accountants, auditors and other authorized representatives, full access during
normal business hours and upon reasonable advance written notice to all of each
party’s properties, books, contracts, commitments and records for the purpose of
examining the same. Each party shall furnish the other party with all
information concerning each party’s affairs as the other party may reasonably
request. If during the investigative period one party learns that a
representation of the other party was not accurate, no such claim may be
asserted by the party so learning that a representation of the other party was
not accurate.
4.2 Conduct of Business. Prior to
Closing, each party shall conduct its business in the normal course and shall
not sell, pledge or assign any assets without the prior written approval of the
other party, except in the normal course of business. Neither party
shall amend its Articles of Incorporation or Bylaws (except as may be described
in this Agreement), declare dividends, redeem or sell stock or other
securities. Neither party shall enter into negotiations with any
third party or complete any transaction with a third party involving the sale of
any of its assets or the exchange of any of its common stock.
4.3 Confidential Information. Each party will
treat all non-public, confidential and trade secret information received from
the other party as confidential, and such party shall not disclose or use such
information in a manner contrary to the purposes of this
Agreement. Moreover, all such information shall be returned to the
other party in the event this Agreement is terminated.
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4.4 Notice of Non-Compliance. Each party shall
give prompt notice to the other party of any representation or warranty made by
it in this Agreement becoming untrue or inaccurate in any respect or the failure
by it to comply with or satisfy in any material respect any covenant, condition
or agreement to be complied with or satisfied by it under this
Agreement.
ARTICLE
V
Conditions
Precedent to ALRN’s Performance
5.1 Conditions ALRN’s obligations hereunder
shall be subject to the satisfaction at or before the Closing of all the
conditions set forth in this Article V. ALRN may waive any or all of
these conditions in whole or in part without prior notice; provided, however,
that no such waiver of a condition shall constitute a waiver by ALRN of any other condition of
or any of ALRN’s other
rights or remedies, at law or in equity, if PHHC or SVCC, shall be in default of
any of its representations, warranties or covenants under this
Agreement.
5.2 Accuracy of Representations.
Except as otherwise permitted by this Agreement, all representations and
warranties by PHHC,
or SVCC, in this
Agreement or in any written statement that shall be delivered to ALRN by PHHC or SVCC under this Agreement
shall be true and accurate on and as of the Closing as though made at that
time.
5.3 Performance. PHHC and SVCC shall have performed,
satisfied and complied with all covenants, agreements and conditions required by
this Agreement to be performed or complied with by it on or before
Closing.
5.4 Absence of Litigation. No
action, suit or proceeding, including injunctive actions, before any court or
any governmental body or authority, pertaining to the transaction contemplated
by this Agreement or to its consummation, shall have been instituted or
threatened against PHHC
or SVCCC, except
as stated in Exhibit 2.12, on or before Closing.
5.5 Officer’s Certificate. PHHC and SVCC shall have delivered to
ALRN a certificate dated
the Closing signed by the President or Chief Executive Officer of each company
respectively, certifying
that each of the conditions specified in this Article has been fulfilled and
that all of the representations set forth in Article II are true and correct as
of Closing.
5.6 Corporate Action. PHHC shall have obtained the
approval of the SVCC for
the transaction contemplated by this Agreement.
5.7 Acceptance of Financial
Statements. ALRN
shall have reviewed and in its sole discretion accepted, prior to Closing, the
XXXXXXX XXXXXXX HARDWARE Company Financial Statements.
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ARTICLE
VI
Conditions
Precedent to SVCC Performance
6.1 Conditions. SVCC’S obligations hereunder
shall be subject to the satisfaction at or before the Closing of all the
conditions set forth in this Article VI. SVCC may waive any or all of
these conditions in whole or in part without prior notice; provided, however,
that no such waiver of a condition shall constitute a waiver by SVCC of any other condition of
or any of SVCC rights or
remedies, at law or in equity, if ALRN shall be in default of
any of its representations, warranties or covenants under this
Agreement.
6.2 Accuracy of Representations.
Except as otherwise permitted by this Agreement, all representations and
warranties by ALRN in
this Agreement or in any written statement that shall be delivered to SVCC by ALRN under this Agreement
shall be true and accurate on and as of the Closing as though made at that
time.
6.3 Performance. ALRN shall have performed,
satisfied and complied with all covenants, agreements and conditions required by
this Agreement to be performed or complied with by it on or before the
Closing.
6.4 Absence of Litigation. No
action, suit or proceeding before any court or any governmental body or
authority, pertaining to the transaction contemplated by this Agreement or to
its consummation, shall have been instituted or threatened against ALRN on or before the
Closing.
6.5 Officer’s Certificate. ALRN shall have delivered
to SVCC a certificate dated as of
the Closing signed by the President of ALRN certifying that each of
the conditions specified in this Article has been fulfilled and that all of the
representations set forth herein are true and correct.
6.6 Payment of Liabilities. On, before, or immediately
after Closing (as defined as within five business days), ALRN shall have paid any
outstanding trade obligations and liabilities of ALRN.
6.7 Directors of ALRN. On the
Closing date immediately following Closing, the Board of Directors of ALRN shall appoint the
designees of PHHC
or SVCC to ALRN’s Board of Directors and
all directors not so designated simultaneously will resign from the ALRN Board of
Directors.
6.8 Officers of ALRN. On the
Closing date, the newly constituted Board of Directors of ALRN shall elect the officers
of ALRN and any other
then existing executive officers of ALRN shall resign.
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ARTICLE
VII
Closing
7.1 Closing. The closing of this
Agreement shall be held at the offices of ALRN or at any mutually
agreeable place on or prior to December 22, 2008, unless extended by mutual
agreement (the “Closing”). At Closing:
(a) The
Majority Shareholders of The Americas Learning Centers, Inc. shall deliver to
SVCC (i) stock
certificates representing the ALRN Shares which are to be placed in escrow by
SVCC under the terms and
conditions of the Escrow Agreement connected to this Agreement;
(b) ALRN shall deliver (i) the
Officer’s Certificate described in Section 6.5, (iii) signed minutes of its
Board of Directors meeting approving this Agreement and all agreements connected
to it, and (iv) resignations of ALRN’s executive officers and directors pursuant
to Sections 6.7 and 6.8;
(c) The
Noteholders of The Americas Learning Centers, Inc. shall deliver to the Escrow
Agent copies of their debt obligations owing by ALRN;
(d) SVCC shall deliver to ALRN (i) a copy of the Escrow
Agreement executed by
SVCC, (ii) the Officer’s
Certificate described in Section 5.5, and (iii) signed minutes of its Board of
Directors meeting approving this Agreement, and (iv) proof of a bank wire
transfer or check for $35,000 to “Gold Coast Professional Services, PA”, the
Escrow Agent, for the transactions contemplated herein, as the initial payment
against the Notes.
ARTICLE
VIII
Covenants
Subsequent to Closing
8.1
Change in Name, Address and Reverse
Stock Split.
Following Closing, ALRN
shall:
(a) Change
its name to “Xxxxxxx’x Stores, Inc.”
(b) Change
its corporate address to:
0000 XX
Xxxxxxxx Xxxxx Xxxx., #000
Xxxxxx,
Xxxxxxx 00000
ARTICLE
IX
Miscellaneous
9.1 Captions and Headings. The
article and Section headings throughout this Agreement are for convenience and
reference only and shall not define, limit or add to the meaning of any
provision of this Agreement.
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9.2 No Oral Change. This Agreement
and any provision hereof may not be waived, changed, modified or discharged
orally, but only by an agreement in writing signed by the party against whom
enforcement of any such waiver, change, modification or discharge is
sought.
9.3 Non-Waiver. The failure of any
party to insist in any one or more cases upon the performance of any of the
provisions, covenants or conditions of this Agreement or to exercise any option
herein contained shall not be construed as a waiver or relinquishment for the
future of any such provisions, covenants or conditions. No waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other subsequent breach.
9.4 Time of Essence. Time is of
the essence of this Agreement and of each and every provision
hereof.
9.5 Entire Agreement. This
Agreement contains the entire Agreement and understanding between the parties
hereto and supersedes all prior agreements and understandings.
9.6 Choice of Law. This Agreement
and its application shall be governed by the laws of the state of Florida,
applicable to contracts and agreements made and performed entirely therein,
without giving effect to the rules or principles of conflict of
law.
9.7 Counterparts. This Agreement
may be executed simultaneously in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
9.8 Notices. All notices,
requests, demands and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given on the date of service if
served personally on the party to whom notice is to be given, or on the third
day after mailing if mailed to the party to whom notice is to be given, by first
class mail, registered or certified, postage prepaid, and properly addressed as
follows:
THE
AMERICAS LEARNING CENTERS, INC.
000 Xxxxx
Xxxx
Xxxxx
000
Xxxx
Xxxxx, Xx 00000
THE
MAJORITY STAKEHOLDERS OF
THE
AMERICAS LEARNING CENTERS, INC.
c/o 000
Xxxxx Xxxx
Xxxxx
000
Xxxx
Xxxxx, Xx 00000
SEAWAY
VALLEY CAPITAL CORPORATION
00-00
Xxxx Xxxxxx, 0xx
Xxxxx
Xxxxxxxxxx,
XX 00000
XXXXXXX XXXXXXX HARDWARE
COMPANY
0000
Xxxxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
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9.9 Binding Effect. This Agreement
shall inure to and be binding upon the heirs, executors, personal
representatives, successors and assigns of each of the parties to this
Agreement.
9.10 Mutual Cooperation. The
parties hereto shall cooperate with each other to achieve the purpose of this
Agreement and shall execute such other and further documents and take such other
and further actions as may be necessary or convenient to effect the transaction
described herein.
9.11 Finders/Brokers. There are no
finders or brokers in connection with this transaction.
9.12 Announcements. The
parties will consult and cooperate with each other as to the timing and content
of any public announcements regarding this Agreement.
9.13 Expenses. The expenses,
including legal fees incurred in connection with the preparation of this
Agreement, and all related documents, shall be paid by Xxxxxxx’x Stores, Inc.,
formerly ALRN, with
payment in full for all expenses to be guaranteed by SVCC.
9.14 Survival of Representations and
Warranties. The representations, warranties, covenants and agreements of
the parties set forth in this Agreement or in any instrument, certificate,
opinion or other writing providing for in it, shall survive the
Closing.
9.15 Termination, Amendment and
Waiver.
(a) Termination. This
Agreement may be terminated at any time prior to Closing:
(1) By
mutual agreement of ALRN, the Majority
Stakeholders of ALRN,
and SVCC.
(2) By
either ALRN or SVCC:
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(i)
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If
any court of competent jurisdiction or any governmental, administrative or
regulatory authority, agency or body shall have issued an order, decree or
ruling or taken any other action permanently enjoining, restraining or
otherwise prohibiting the transactions contemplated by this Agreement;
or
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(ii)
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If
the transaction shall not have been consummated on or before December 22,
2008 unless the failure to consummate the transaction is the result of a
material breach of this Agreement by the party seeking to terminate this
Agreement.
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(3) By
SVCC, if ALRN breaches any of its
representations or warranties hereof or fails to perform in any material respect
any of its covenants, agreements or obligations under this Agreement;
and
(4) By
ALRN, if SVCC breaches any of its
representations or warranties hereof or fails to perform in any material respect
any of its covenants, agreements or obligations under this
Agreement.
(b) Effect of
Termination. In the event of termination of this Agreement, as
provided herein, this Agreement shall forthwith become void and have no effect,
without any liability or obligation on the part of any party hereto to the
other, and such termination shall not relieve any party hereto for any
intentional breach prior to such termination by a party hereto of any of its
representations or warranties or any of its covenants or agreements set forth in
this Agreement.
(c) Extension;
Waiver. At any time prior to Closing, the parties may, to the
extent legally allowed, (a) extend the time for the performance of any of the
obligation of the other acts of the other parties, (b) waive any inaccuracies in
the representations and warranties contained herein or in any document delivered
pursuant hereto or waive compliance with any of the agreements or conditions
contained herein. Any agreement on the part of a party to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of such rights.
(d) Procedure for Termination, Amendment,
Extension or Waiver. A termination of this Agreement, an
amendment of this Agreement or an extension or waiver shall, in order to be
effective, require in the case of ALRN, or SVCC, action by its respective
Board of Directors or the duly authorized designee of such Board of
Directors.
10.
Unwind of the
Transaction. Should the Majority Stakeholders of The Americas
Learning Centers, Inc., or SVCC declare in writing a
breach of the representations and warranties in this Agreement (a “Breach”), or
should SVCC, PHHC, or
the ALRN successor, HSI,
fail to meet any or all of the payment requirements of this Agreement to the
Stakeholders of The Americas Learning Centers, Inc. (a “Payment Failure”), which
Breach or Payment Failure is not waived by the other Party thereto or cured by
SVCC or PHHC to the satisfaction of
the other Party, then the Party affected by the Breach, or the Majority
Stakeholders of The Americas Learning Centers, Inc. (by plurality vote of all
such Stakeholders) may notify the other Parties that the transactions
contemplated and executed by this Agreement and all agreements connected to
them, including, but not limited to, the Escrow Agent and the Notes, are to be
immediately cancelled, and the assets and liabilities properly owned and titled
to each of the Parties prior to Closing shall be immediately returned to that
respective Party, including any assets or liabilities held under the Escrow
Agreement (the “Unwind”). Should such an Unwind occur, 100% of the capital
stock and assets of PHHC
shall be immediately transferred back to SVCC, as well as any and all
liabilities and obligations of the PHHC that may have been
incurred from the time of Closing of this Agreement and which are unrelated to
this Agreement and the other agreements and Notes connected hereto. Such Unwind
actions shall not be challenged by the Majority Stakeholders of The Americas
Learning Centers, Inc.
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IN WITNESS WHEREOF, the
parties have executed this Agreement concerning the matters herein as of the
Effective Date.
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SEAWAY
VALLEY CAPITAL CORPORATION
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By: /s/ Xxxxxx X.
Xxxxxxxxxx
Xxxxxx
X. Xxxxxxxxxx, President/CEO
XXXXXXX
XXXXXXX HARDWARE COMPANY
By: /s/ Xxxxxx X.
Xxxxxxxxxx
Xxxxxx
X. Xxxxxxxxxx, President/CEO
THE
AMERICAS LEARNING CENTERS, INC
By: /s/ Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx, President
THE
MAJORITY SHAREHOLDERS OF THE AMERICAS LEARNING CENTERS, INC.
By: /s/ Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx, an individual
Shares
owned: 85,250,845
GOLD
COAST PROFESSIONAL SERVICES, P.A.
By: Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx, Vice President
Gold
Coast Professional Services, PA
Shares
owned: 44,201,280
GROWTH
CAPITAL ENTERPRISES, INC.
By: /s/ Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx, Vice President
Shares
owned: 16,000,000
NOTEHOLDERS
OF THE AMERICAS LEARNING CENTERS, INC.
By: /s/ Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx, an individual
By: /s/ Xxxxxx Xxxxxxx,
Xx.
Xxxxxx
Xxxxxxx, Junior, an individual
By: /s/ Guy M.
Xxxx-Xxxxxx
Guy
M. Xxxx-Xxxxxx, an individual
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