SCHEDULE 14A
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant [X]
Filed by Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss.240.14a-11(c) or ss.240.14a-12
AMERICANN, INC.
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(Name of Registrant as Specified In Its Charter)
William T. Hart - Attorney for Registrant
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(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
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2) Aggregate number of securities to which transaction applies:
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3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:
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4) Proposed maximum aggregate value of transaction:
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5) Total fee paid:
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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AMERICANN, INC.
1555 Blake Street, Unit 502
Denver, CO 80202
(303) 862-9000
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ____________, 2021
To the Shareholders:
Notice is hereby given that a special meeting of the shareholders of
AmeriCann, Inc. (the "Company") will be held at _______________ on ____________,
2020, at 10:00 a.m., for the following purpose:
(1) to approve a change in domicile of the corporation from Delaware to
Colorado;
to transact such other business as may properly come before the meeting.
The change in domicile will be accomplished by means of Plan of Merger
which is attached as Exhibit A to this Proxy Statement.
______________, 2021 is the record date for the determination of
shareholders entitled to notice of and to vote at such meeting. Shareholders are
entitled to one vote for each share held. As of _______________, 2021, there
were ___________ outstanding shares of the Company's common stock.
AMEIRCANN, INC.
_________________, 2021 Timothy Keogh, Chief Executive Officer
PLEASE INDICATE YOUR VOTING INSTRUCTIONS ON THE ATTACHED PROXY CARD,
AND SIGN, DATE AND RETURN THE PROXY CARD.
TO SAVE THE COST OF FURTHER SOLICITATION,
PLEASE VOTE PROMPTLY
AMERICANN, INC.
1555 Blake Street, Unit 502
Denver, CO 80202
(303) 862-9000
PROXY STATEMENT
The accompanying proxy is solicited by the Company's directors for voting
at the special meeting of shareholders to be held on __________, 2021, and at
any and all adjournments of such meeting. If the proxy is executed and returned,
it will be voted at the meeting in accordance with any instructions, and if no
specification is made, the proxy will be voted for the proposals set forth in
the accompanying notice of the special meeting of shareholders. Shareholders who
execute proxies may revoke them at any time before they are voted, either by
writing to the Company at the address shown above or in person at the time of
the meeting. Additionally, any later dated proxy will revoke a previous proxy
from the same shareholder. This proxy statement was posted on the Company's
website on or about __________, 2021.
There is one class of capital stock outstanding, that being common stock.
Provided a quorum consisting of one third of the shares entitled to vote is
present at the meeting, the adoption of the proposal to come before the meeting
will be approved if a majority of those shares vote in favor of the proposal.
Shares of the Company's common stock represented by properly executed
proxies that reflect abstentions or "broker non-votes" will be counted as
present for purposes of determining the presence of a quorum at the annual
meeting. "Broker non-votes" represent shares held by brokerage firms in
"street-name" with respect to which the broker has not received instructions
from the customer or otherwise does not have discretionary voting authority.
Abstentions and broker non-votes will not be counted as having voted against the
proposals to be considered at the meeting.
PRINCIPAL SHAREHOLDERS
The following table lists, as of ______________, 2021, the shareholdings of
(i) each person owning beneficially 5% or more of the Company's common stock
(ii) each officer and director of the Company and (iii) all officers and
directors as a group. Unless otherwise indicated, each owner has sole voting and
investment powers over his shares of common stock.
Name Number of Shares Percent of Class
----- ----------------- ----------------
Timothy Keogh 1,308,408 5.5%
Benjamin J. Barton 95,408 0.4%
J. Tyler Opel 95,408 0.4%
Strategic Capital Partners, LLC(1) 8,966,665 37.8%
All officers and directors
as a group (three persons) 10,457,889 44.1%
(1) Controlled by Benjamin J. Barton.
PROPOSAL TO CHANGE THE DOMICILE OF THE COMPANY FROM DELAWARE TO COLORADO.
The Board has approved and recommends to the shareholders a proposal to
change the Company's state of incorporation from Delaware to Colorado.
The change in domicile (i.e., the "Reincorporation") will not involve any
change in the business, properties, corporate headquarters or management of the
Company. The officers and directors of the Company immediately prior to the
Reincorporation will serve as the officers and directors of the Company
following the Reincorporation. There will be no change in the operations,
assets, liabilities or obligations of the Company as a result of the
Reincorporation.
If the Reincorporation proposal is approved, the Reincorporation will be
accomplished by means of a Plan of Merger, attached as Exhibit A. The Plan of
Merger provides that the Company will be merged into a newly formed, wholly
owned subsidiary, and each outstanding share of the Company's common stock will
become one outstanding share of the Company's common stock as incorporated in
Colorado. The Plan of Merger will be effective upon the filing of Articles of
Merger with the Delaware Secretary of State and the Colorado Secretary of State.
If the Reincorporation proposal is approved, it is anticipated that the
Board will cause the Reincorporation to be effected as soon as reasonably
practicable. However, the Reincorporation may be delayed by the Board or may be
terminated and abandoned by action of the Board at any time prior to the
effective time of the Reincorporation, whether before or after the approval by
the Company's shareholders, if the Board determines for any reason that the
consummation of the Reincorporation should be delayed or would be inadvisable or
not in the best interests of the Company and its shareholders, as the case may
be.
Upon effectiveness of the Reincorporation, the Company will be governed by
the Articles of Incorporation, as filed with the Colorado Secretary of State in
substantially the form attached as Exhibit B (the "Colorado Articles"). The
Company's current Certificate of Incorporation (the "Delaware Certificate") will
not be applicable to the Company following the completion of the
Reincorporation. Following the Reincorporation, the Company will be governed by
the Colorado Corporations and Associations Act ("CCAA") and the Colorado
Business Corporation Act ("BCA").
Following the effectiveness of the Reincorporation, stockholders will not
be required to exchange existing stock certificate(s) of the Company for new
stock certificate (s), although stockholders will have an option of doing so. At
the same time, each outstanding option, right or warrant to acquire shares of
common stock will continue to be an option, right or warrant to acquire an equal
number of shares of common stock under the same terms and conditions.
SHAREHOLDERS SHOULD NOT DESTROY ANY STOCK CERTIFICATE(S) AND SHOULD NOT SUBMIT
ANY CERTIFICATE(S) TO THE COMPANY'S TRANSFER AGENT UNLESS THEY DESIRE TO BE
ISSUED A CERTIFICATE EVIDENCING THE SHARES IN THE COLORADO CORPORATION.
After the Reincorporation, the Company will continue to be a publicly-held
company. The Company will continue to file periodic reports and other documents
with the U.S. Securities and Exchange Commission ("SEC"). Shareholders who own
shares of common stock that are freely tradable prior to the Reincorporation
will continue to have freely tradable shares, and shareholders holding
restricted shares of common stock will continue to hold their shares subject to
the same restrictions on transfer to which their shares are presently subject.
Approval of the Reincorporation will constitute approval of the Colorado
Articles.
Principal Reasons for the Reincorporation in Colorado
The Company's directors believe that reincorporation in Colorado is on the
best interest of the Company since the cost of being a Delaware corporation is
significantly higher than the cost of being a Colorado corporation. Delaware
corporations are required to file an annual Franchise Tax Report with the
Delaware Secretary of State. The Company's franchise taxes for 2019 were in
excess of $33,000. In contrast, Colorado corporations are not required to pay
any franchise taxes but instead are required to file an annual report with the
Colorado Secretary of State. The cost of filing the annual report is $10.00.
Accordingly, the shareholders of the Company are being requested to vote to
change the domicile of the Company from Delaware to Colorado.
The Board of Directors recommends that the shareholders vote for this
proposal.
Significant Differences Between the Corporation Laws of Delaware and Colorado
Although the corporate statutes of Delaware and Colorado are similar,
certain differences exist. Set forth below is a discussion summarizing the
material differences in the rights of the shareholders of the Company before and
after the Reincorporation is effective as a result of the differences between
the DGCL, the CCAA and the BCA. This discussion does not address each difference
between the DGCL, the CCAA and the BCA, but focuses on some of those differences
which the Company believes are most relevant to the existing shareholders.
Action by Shareholders Without a Meeting
Unless prohibited by a corporation's Certificate of Incorporation Delaware
law permits shareholder action by less than unanimous written consent and
provides that any action that could be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a
vote, if written consents are signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Delaware law provides that, in order to be effective,
(i) all written consents must be delivered to the corporation within 60 days
after the earliest dated consent is delivered to the corporation, and (ii)
unless approved by unanimous written consent, written notice of the shareholder
approval must be given at least 10 days before the consummation of the action
authorized by shareholders to (a) all shareholders entitled to vote who have not
consented in writing and (b) all shareholders not entitled to vote, but who are
otherwise entitled to notice under Delaware law.
Colorado law permits shareholder action by less than unanimous written
consent and provides that any action that could be taken at an annual or special
meeting of shareholders (including the election of directors) may be taken
without a meeting, without prior notice and without a vote, if written consents
are signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Quorum
Delaware law provides that, the corporation's Certificate of incorporation
may specify the number of shares which should be present entitled to be cast on
a matter to constitute a quorum for action on that matter. But in no event shall
the quorum be less than 1/3 of the shares entitled to vote.
Colorado law provides that, unless the corporation's articles of
incorporation provide otherwise, a majority of the votes entitled to be cast on
a matter constitutes a quorum for action on that matter.
Removal of Directors
Delaware law provides that any director may be removed, with or without
cause, by the holders of a majority of the outstanding common stock of the
corporation.
Colorado law provides that any director may be removed, with or without
cause, by the vote of those holders exceeding those holders opposed to the
director's removal but only at a meeting of shareholders pursuant to a notice of
meeting, which includes the removal of such director as an item of business.
Indemnification of Directors
Delaware law provides that a corporation may indemnify a director, on the
merits or otherwise, in the defense of any claim, issue or matter, to which he
or she was a party because of his or her status as a director of the
corporation, against reasonable expenses incurred in connection with the
proceeding or claim with respect to which he or she was successful. Unlike
Colorado law, Delaware law allows a corporation's articles of incorporation to
limit indemnification.
Colorado law requires a corporation to indemnify a director who was
successful, on the merits or otherwise, in the defense of any claim, issue or
matter, to which he or she was a party because of his or her status as a
director of the corporation, against reasonable expenses incurred in connection
with the proceeding or claim with respect to which he or she was successful. In
addition, the BCA provides that no provisions of a corporation's Articles of
Incorporation, Bylaws or any agreement between a corporation and a director can
be more expansive than that permitted by the BCA.
Elimination of Directors' Liability for Monetary Damages
Delaware law permits a corporation, pursuant to its Certificate of
incorporation, to provide for the elimination or limitation of the liability of
a director to the corporation or its shareholders for monetary damages for any
action taken or failure to take any action as a director, except liability for
(1) the amount of a financial benefit received by a director to which he is not
entitled; (2) an intentional infliction of harm on the corporation or its
shareholders; (3) unlawful distributions; or (4) an intentional violation of
criminal law.
Colorado law permits a corporation pursuant to its articles of
incorporation to include a provision eliminating or limiting the personal
liability of directors to the corporation or its shareholders for monetary
damages for breach of fiduciary duties as a director, except such provision
shall not limit liability for any breach of the director's duty of loyalty to
the corporation or its shareholders, or for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, or for
payment of a dividend or a stock repurchase or redemption in violation of
Colorado law or for any transaction from which the director derived an improper
personal benefit.
Shareholder Rights Under Corporate Charters
The rights of shareholders under the Delaware Certificates and the Colorado
Articles are substantially the same. The Company's shareholders do not have the
right to maintain their proportionate interest in the Company in the event the
Company elects to sell additional shares of common stock (i.e. "preemptive
rights") or the right to vote their shares for less than all directors (i.e.
"cumulative voting") at any shareholders' meeting at which directors are to be
elected.
Federal Income Tax Consequences of the Reincorporation
The discussion of U.S. federal income tax consequences set forth below is
for general information only and does not purport to be a complete discussion or
analysis of all potential tax consequences that may apply to a shareholder.
Shareholders are urged to consult their tax advisors to determine the particular
tax consequences of the Reincorporation, including the applicability and effect
of federal, state, local, foreign and other tax laws.
The Reincorporation is intended to be a tax-free reorganization under
Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code").
Assuming the Reincorporation qualifies as a reorganization, no gain or loss will
be recognized to the holders of our capital stock as a result of consummation of
the Reincorporation, and no gain or loss will be recognized by us. You will have
the same basis in the ColoradoCo common stock received by you pursuant to the
Reincorporation as you have in the shares of the Delaware Corporation common
stock held by you as of immediately prior to the time the Reincorporation is
consummated. Your holding period with respect to common stock in the Delaware
Corporation will include the period during which you held the corresponding
shares of the Delaware Corporation common stock, provided the latter was held by
you as a capital asset at the time of consummation of the Reincorporation.
Accounting Treatment
We expect that the Reincorporation will have no effect from an accounting
perspective because there is no change in the entity as a result of the
Reincorporation. As such, the financial statements of the Delaware Corporation
previously filed with the Securities and Exchange Commission will remain the
financial statements of the Company following the Reincorporation.
Appraisal Rights
Shareholders of the Company which object to the Reincorporation are
entitled to the following appraisal rights under Delaware law.
ss. 262. Appraisal rights.
(a) Any stockholder of a corporation of this State who holds shares of
stock on the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares through
the effective date of the merger or consolidation, who has otherwise complied
with subsection (d) of this section and who has neither voted in favor of the
merger or consolidation nor consented thereto in writing pursuant to ss. 228 of
this title shall be entitled to an appraisal by the Court of Chancery of the
fair value of the stockholder's shares of stock under the circumstances
described in subsections (b) and (c) of this section. As used in this section,
the word "stockholder" means a holder of record of stock in a corporation; the
words "stock" and "share" mean and include what is ordinarily meant by those
words; and the words "depository receipt" mean a receipt or other instrument
issued by a depository representing an interest in 1 or more shares, or
fractions thereof, solely of stock of a corporation, which stock is deposited
with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to ss. 251 (other than a merger effected pursuant to ss.
251(g) of this title), ss. 252, ss. 254, ss. 255, ss. 256, ss. 257, ss. 258, ss.
263 or ss. 264 of this title:
(1) Provided, however, that no appraisal rights under this section shall be
available for the shares of any class or series of stock, which stock, or
depository receipts in respect thereof, at the record date fixed to determine
the stockholders entitled to receive notice of the meeting of stockholders to
act upon the agreement of merger or consolidation, were either (i) listed on a
national securities exchange or (ii) held of record by more than 2,000 holders;
and further provided that no appraisal rights shall be available for any shares
of stock of the constituent corporation surviving a merger if the merger did not
require for its approval the vote of the stockholders of the surviving
corporation as provided in ss. 251(f) of this title.
(2) Notwithstanding paragraph (b)(1) of this section, appraisal rights
under this section shall be available for the shares of any class or series of
stock of a constituent corporation if the holders thereof are required by the
terms of an agreement of merger or consolidation pursuant to ss.ss. 251, 252,
254, 255, 256, 257, 258, 263 and 264 of this title to accept for such stock
anything except:
a. Shares of stock of the corporation surviving or resulting from such
merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository receipts in
respect thereof, which shares of stock (or depository receipts in
respect thereof) or depository receipts at the effective date of the
merger or consolidation will be either listed on a national securities
exchange or held of record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository receipts
described in the foregoing paragraphs (b)(2)a. and b. of this section;
or
d. Any combination of the shares of stock, depository receipts and cash
in lieu of fractional shares or fractional depository receipts
described in the foregoing paragraphs (b)(2)a., b. and c. of this
section.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under ss. 253 or ss. 267 of this title is not owned
by the parent immediately prior to the merger, appraisal rights shall be
available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights are
provided under this section is to be submitted for approval at a meeting of
stockholders, the corporation, not less than 20 days prior to the meeting, shall
notify each of its stockholders who was such on the record date for notice of
such meeting (or such members who received notice in accordance with ss. 255(c)
of this title) with respect to shares for which appraisal rights are available
pursuant to subsection (b) or (c) of this section that appraisal rights are
available for any or all of the shares of the constituent corporations, and
shall include in such notice a copy of this section and, if 1 of the constituent
corporations is a nonstock corporation, a copy of ss. 114 of this title. Each
stockholder electing to demand the appraisal of such stockholder's shares shall
deliver to the corporation, before the taking of the vote on the merger or
consolidation, a written demand for appraisal of such stockholder's shares. Such
demand will be sufficient if it reasonably informs the corporation of the
identity of the stockholder and that the stockholder intends thereby to demand
the appraisal of such stockholder's shares. A proxy or vote against the merger
or consolidation shall not constitute such a demand. A stockholder electing to
take such action must do so by a separate written demand as herein provided.
Within 10 days after the effective date of such merger or consolidation, the
surviving or resulting corporation shall notify each stockholder of each
constituent corporation who has complied with this subsection and has not voted
in favor of or consented to the merger or consolidation of the date that the
merger or consolidation has become effective; or
(2) If the merger or consolidation was approved pursuant to ss. 228, ss.
253, or ss. 267 of this title, then either a constituent corporation before the
effective date of the merger or consolidation or the surviving or resulting
corporation within 10 days thereafter shall notify each of the holders of any
class or series of stock of such constituent corporation who are entitled to
appraisal rights of the approval of the merger or consolidation and that
appraisal rights are available for any or all shares of such class or series of
stock of such constituent corporation, and shall include in such notice a copy
of this section and, if 1 of the constituent corporations is a nonstock
corporation, a copy of ss. 114 of this title. Such notice may, and, if given on
or after the effective date of the merger or consolidation, shall, also notify
such stockholders of the effective date of the merger or consolidation. Any
stockholder entitled to appraisal rights may, within 20 days after the date of
mailing of such notice, demand in writing from the surviving or resulting
corporation the appraisal of such holder's shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the appraisal of
such holder's shares. If such notice did not notify stockholders of the
effective date of the merger or consolidation, either (i) each such constituent
corporation shall send a second notice before the effective date of the merger
or consolidation notifying each of the holders of any class or series of stock
of such constituent corporation that are entitled to appraisal rights of the
effective date of the merger or consolidation or (ii) the surviving or resulting
corporation shall send such a second notice to all such holders on or within 10
days after such effective date; provided, however, that if such second notice is
sent more than 20 days following the sending of the first notice, such second
notice need only be sent to each stockholder who is entitled to appraisal rights
and who has demanded appraisal of such holder's shares in accordance with this
subsection. An affidavit of the secretary or assistant secretary or of the
transfer agent of the corporation that is required to give either notice that
such notice has been given shall, in the absence of fraud, be prima facie
evidence of the facts stated therein. For purposes of determining the
stockholders entitled to receive either notice, each constituent corporation may
fix, in advance, a record date that shall be not more than 10 days prior to the
date the notice is given, provided, that if the notice is given on or after the
effective date of the merger or consolidation, the record date shall be such
effective date. If no record date is fixed and the notice is given prior to the
effective date, the record date shall be the close of business on the day next
preceding the day on which the notice is given.
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who has
complied with subsections (a) and (d) of this section hereof and who is
otherwise entitled to appraisal rights, may commence an appraisal proceeding by
filing a petition in the Court of Chancery demanding a determination of the
value of the stock of all such stockholders. Notwithstanding the foregoing, at
any time within 60 days after the effective date of the merger or consolidation,
any stockholder who has not commenced an appraisal proceeding or joined that
proceeding as a named party shall have the right to withdraw such stockholder's
demand for appraisal and to accept the terms offered upon the merger or
consolidation. Within 120 days after the effective date of the merger or
consolidation, any stockholder who has complied with the requirements of
subsections (a) and (d) of this section hereof, upon written request, shall be
entitled to receive from the corporation surviving the merger or resulting from
the consolidation a statement setting forth the aggregate number of shares not
voted in favor of the merger or consolidation and with respect to which demands
for appraisal have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the stockholder within 10 days
after such stockholder's written request for such a statement is received by the
surviving or resulting corporation or within 10 days after expiration of the
period for delivery of demands for appraisal under subsection (d) of this
section hereof, whichever is later. Notwithstanding subsection (a) of this
section, a person who is the beneficial owner of shares of such stock held
either in a voting trust or by a nominee on behalf of such person may, in such
person's own name, file a petition or request from the corporation the statement
described in this subsection.
(f) Upon the filing of any such petition by a stockholder, service of a
copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the addresses
therein stated. Such notice shall also be given by 1 or more publications at
least 1 week before the day of the hearing, in a newspaper of general
circulation published in the City of Wilmington, Delaware or such publication as
the Court deems advisable. The forms of the notices by mail and by publication
shall be approved by the Court, and the costs thereof shall be borne by the
surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
(h) After the Court determines the stockholders entitled to an appraisal,
the appraisal proceeding shall be conducted in accordance with the rules of the
Court of Chancery, including any rules specifically governing appraisal
proceedings. Through such proceeding the Court shall determine the fair value of
the shares exclusive of any element of value arising from the accomplishment or
expectation of the merger or consolidation, together with interest, if any, to
be paid upon the amount determined to be the fair value. In determining such
fair value, the Court shall take into account all relevant factors. Unless the
Court in its discretion determines otherwise for good cause shown, interest from
the effective date of the merger through the date of payment of the judgment
shall be compounded quarterly and shall accrue at 5% over the Federal Reserve
discount rate (including any surcharge) as established from time to time during
the period between the effective date of the merger and the date of payment of
the judgment. Upon application by the surviving or resulting corporation or by
any stockholder entitled to participate in the appraisal proceeding, the Court
may, in its discretion, proceed to trial upon the appraisal prior to the final
determination of the stockholders entitled to an appraisal. Any stockholder
whose name appears on the list filed by the surviving or resulting corporation
pursuant to subsection (f) of this section and who has submitted such
stockholder's certificates of stock to the Register in Chancery, if such is
required, may participate fully in all proceedings until it is finally
determined that such stockholder is not entitled to appraisal rights under this
section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Payment shall be so made to each such
stockholder, in the case of holders of uncertificated stock forthwith, and the
case of holders of shares represented by certificates upon the surrender to the
corporation of the certificates representing such stock. The Court's decree may
be enforced as other decrees in the Court of Chancery may be enforced, whether
such surviving or resulting corporation be a corporation of this State or of any
state.
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded appraisal rights as provided in subsection (d) of
this section shall be entitled to vote such stock for any purpose or to receive
payment of dividends or other distributions on the stock (except dividends or
other distributions payable to stockholders of record at a date which is prior
to the effective date of the merger or consolidation); provided, however, that
if no petition for an appraisal shall be filed within the time provided in
subsection (e) of this section, or if such stockholder shall deliver to the
surviving or resulting corporation a written withdrawal of such stockholder's
demand for an appraisal and an acceptance of the merger or consolidation, either
within 60 days after the effective date of the merger or consolidation as
provided in subsection (e) of this section or thereafter with the written
approval of the corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court
of Chancery shall be dismissed as to any stockholder without the approval of the
Court, and such approval may be conditioned upon such terms as the Court deems
just; provided, however that this provision shall not affect the right of any
stockholder who has not commenced an appraisal proceeding or joined that
proceeding as a named party to withdraw such stockholder's demand for appraisal
and to accept the terms offered upon the merger or consolidation within 60 days
after the effective date of the merger or consolidation, as set forth in
subsection (e) of this section.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation.
GENERAL
The cost of preparing, printing and mailing the enclosed proxy,
accompanying notice and proxy statement, and all other costs in connection with
solicitation of proxies will be paid by the Company including any additional
solicitation made by letter, telephone or telegraph. Failure of a quorum to be
present at the meeting will necessitate adjournment and will subject the Company
to additional expense.
The Company's Board of Directors does not intend to present and does not
have reason to believe that others will present any other items of business at
the annual meeting. However, if other matters are properly presented to the
meeting for a vote, the proxies will be voted upon such matters in accordance
with the judgment of the persons acting under the proxies.
Please complete, sign and return the attached proxy promptly.
AMERICANN, INC. PROXY
This Proxy is solicited by the Company's Board of Directors
The undersigned stockholder of AmeriCann, Inc. acknowledges receipt of the
Notice of the Special Meeting of Stockholders to be held at
___________________________________________, on _____________, 2021, at 10:00
a.m., and hereby appoints ____________ with the power of substitution, as
Attorney and Proxy to vote all the shares of the undersigned at said special
meeting of stockholders and at all adjournments thereof, hereby ratifying and
confirming all that said Attorney and Proxy may do or cause to be done by virtue
hereof. The above named Attorney and Proxy is instructed to vote all of the
undersigned's shares as follows:
The Board of Directors recommends a vote FOR Proposal 1.
(1) To approve a change of the corporation's domicile from Delaware to Colorado
[ ] FOR [ ] AGAINST [ ] ABSTAIN
To transact such other business as may properly come before the meeting.
The change in domicile will be accomplished by means of a Plan of Merger which
is attached as Exhibit A to the Company's Proxy Statement.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED AS DIRECTED HEREIN BY THE
UNDERSIGNED STOCKHOLDER. IF NO DISCRETION IS INDICATED, THIS PROXY WILL BE VOTED
IN FAVOR OF ITEM 1.
Dated this ____ day of _______ ______
---------------------------------------
(Signature)
---------------------------------------
(Print Name)
Please sign your name exactly as it appears on your stock certificate.
If shares are held jointly, each holder should sign.
Executors, trustees, and other fiduciaries should so indicate when signing.
Please Sign, Date and Return this Proxy so that your shares may be
voted at the meeting.
Send the proxy by regular mail, email, or fax to:
AMERICANN, INC.
1555 Blake Street, Unit 502
Denver, CO 80202
(303) 862-9000
AMERICANN, INC.
NOTICE OF INTERNET AVAILABILITY OF PROXY MATERIALS
Important Notice Regarding the Availability of Proxy Materials for the
Special Meeting of Shareholders to Be Held on ____________, 2021.
1. This notice is not a form for voting.
2. This communication presents only an overview of the more complete
proxy materials that are available to you on the Internet. We
encourage you to access and review all of the important information
contained in the proxy materials before voting.
3. The Proxy Statement is available at
4. If you want to receive a paper or email copy of these documents, you
must request one. There is no charge to you for requesting a copy.
Please make your request for a copy as instructed below on or before
_____, 2021 to facilitate timely delivery.
A special meeting of the Company's shareholders will be held at
__________________________ on __________, 2021, at 10:00 a.m., for the following
purpose:
(1) to approve a change in domicile of the corporation from Delaware to
Colorado;
to transact such other business as may properly come before the meeting.
The change in domicile will be accomplished by means of a Plan of Merger
which is attached as Exhibit A to the Company's Proxy Statement.
The Board of Directors recommends that shareholders vote FOR the proposal
listed on the Notice of Special Meeting of Shareholders.
_____________, 2021 is the record date for the determination of
shareholders entitled to notice of and to vote at such meeting. Shareholders may
cast one vote for each share held.
Shareholders may access the following documents at:
________________________
o Notice of the Special Meeting of Shareholders
o Company's Proxy Statement;
o Proxy Card
Shareholders may request a paper copy of the Proxy Materials and Proxy Card
by calling _________________, by emailing the Company at __________, or by
visiting __________________________ and indicating if you want a paper copy of
the proxy materials and proxy card:
o for this meeting only, or
o for this meeting and all other meetings.
If you have a stock certificate registered in your name, or if you have a
proxy from a shareholder of record on ______, 2021, you can, if desired, attend
the Special Meeting and vote in person.
Shareholders can obtain directions to the Special Shareholders' Meeting at
----------------------------
Please visit ___________________ to print and fill out the Proxy Card.
Complete and sign the proxy card and mail the Proxy Card to:
AMERICANN, INC.
1555 Blake Street, Unit 502
Denver, CO 80202
EXHIBIT A
PLAN OF MERGER
(a) CONSTITUENT CORPORATIONS: Americann, Inc. ("Americann")
(A Delaware corporation)
Americann, Inc. ("ACI")
(A Colorado corporation)
Americann has only one class of stock
outstanding, that being common stock.
Americann has 23,696,310 shares of common
stock outstanding, with each share
entitled to one vote.
ACI has only one class of stock
outstanding, that being common stock. ACI
has 100 shares of common stock issued and
outstanding, with each share entitled to
one vote. Americann, Inc. owns all of the
issued and outstanding shares of ACI.
(b) SURVIVING CORPORATION: Americann, Inc. (A Colorado corporation)
(c) Effective as of the date of the merger, (i) all shares of Americann shall
be cancelled, (ii) all assets of Americann shall become assets of ACI,
(iii) all liabilities of Americann shall be assumed by ACI, (iv) ACI will
issue one share of its common stock for each outstanding share of
Americann, and (v) Americann shall cease to exist.
(d) ACI agrees that it may be served with process in Colorado, by registered or
certified mail (return receipt requested) in any proceeding for enforcement
of any obligation of Americann, as well as for the enforcement of any
obligation of Americann arising from the merger, including any suit or
other proceeding to enforce the rights of any stockholder as determined in
appraisal proceedings pursuant to Delaware law.
EXHIBIT B
Articles of Incorporation for a Profit Corporation
filed pursuant to ss. 7-102-101 and ss. 7-102-102
of the Colorado Revised Statutes (C.R.S.)
1. The domestic entity name for the corporation is:
Americann, Inc.
2. The principal office address of the corporation's initial principal office
is:
1555 Blake Street, Unit 502 Denver, CO 80202
3. The registered agent name and registered agent address of the corporation's
initial registered agent are:
Name Hart & Hart, LLC
1624 Washington Street
Denver, CO 80203
|X| The person appointed as registered agent above has consented to being
so appointed.
4. The true name and mailing address of the incorporator is
William Hart
1624 Washington Street
Denver, CO 80203
5. The classes of shares and number of shares of each class that the
corporation is authorized to issue are as follows.
|X| Additional information regarding shares as required by section
7-106-101, C.R.S., is included in an attachment.
6. |X| This document contains additional information provided by law.
7. N/A
8. The true name and mailing address of the individual causing the document to
be delivered for filing are
William Hart
1624 Washington Street
Denver, CO 80203
AMERICANN, INC.
Capital Stock
The authorized capital stock of the Corporation shall consist of
100,000,000 shares of common stock, $0.01 par value, and 20,000,000 shares of
preferred stock, $0.01 par value.
No share of the common stock shall have any preference over or limitation
in respect to any other share of such common stock. All shares of common stock
shall have equal rights and privileges, including the following:
1. All shares of common stock shall share equally in dividends. Subject to
the applicable provisions of the laws of this State, the Board of Directors of
the Corporation may, from time to time, declare and the Corporation may pay
dividends in cash, property, or its own shares, except when the Corporation is
insolvent or when the payment thereof would render the Corporation insolvent or
when the declaration or payment thereof would be contrary to any restrictions
contained in this Certificate of Incorporation. When any dividend is paid or any
other distribution is made, in whole or in part, from sources other than
unreserved and unrestricted earned surplus, such dividend or distribution shall
be identified as such, and the source and amount per share paid from each source
shall be disclosed to the stockholder receiving the same concurrently with the
distribution thereof and to all other stockholders not later than six months
after the end of the Corporation's fiscal year during which such distribution
was made.
2. All shares of common stock shall share equally in distributions in
partial liquidation. Subject to the applicable provisions of the laws of this
State, the Board of Directors of the Corporation may distribute, from time to
time, to its stockholders in partial liquidation, out of stated capital or
capital surplus of the Corporation, a portion of its assets in cash or property,
except when the Corporation is insolvent or when such distribution would render
the Corporation insolvent. Each such distribution, when made, shall be
identified as a distribution in partial liquidation, out of stated capital or
capital surplus, and the source and amount per share paid from each source shall
be disclosed to all stockholders of the Corporation concurrently with the
distribution thereof. Any such distribution may be made by the Board of
Directors from stated capital without the affirmative vote of any stockholders
of the Corporation.
3. a. Each outstanding share of common stock shall be entitled to one vote
at stockholders' meetings, either in person or by proxy.
b. The designations, powers, rights, preferences, qualifications,
restrictions and limitations of the preferred stock shall be established from
time to time by the Corporation's Board of Directors, in accordance with
Colorado Law.
c. i) Cumulative voting shall not be allowed in elections of directors or
for any purpose.
ii) No holders of shares of capital stock of the Corporation shall be
entitled, as such, to any preemptive or preferential right to
subscribe to any unissued stock or any other securities which the
Corporation may now or hereafter be authorized to issue. The Board of
Directors of the Corporation, however, in its discretion by
resolution, may determine that any unissued securities of the
Corporation shall be offered for subscription solely to the holders of
common stock of the Corporation, or solely to the holders of any class
or classes of such stock, which the Corporation may now or hereafter
be authorized to issue, in such proportions based on stock ownership
as said board in its discretion may determine.
iii) The Board of Directors may restrict the transfer of any of the
Corporation's stock issued by giving the Corporation or any
stockholder "first right of refusal to purchase" the stock, by making
the stock redeemable, or by restricting the transfer of the stock
under such terms and in such manner as the directors may deem
necessary and as are not inconsistent with the laws of this State. Any
stock so restricted must carry a conspicuous legend noting the
restriction and the place where such restriction may be found in the
records of the Corporation.
iv) The judgment of the Board of Directors as to the adequacy of any
consideration received or to be received for any shares, options, or
any other securities which the Corporation at any time may be
authorized to issue or sell or otherwise dispose of shall be
conclusive in the absence of fraud, subject to the provisions of these
Articles of Incorporation and any applicable law.
d. Any action required or permitted by the Colorado Business Corporation
Act to be taken at a shareholders' meeting may be taken without a meeting if the
shareholders holding shares having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting, at which
all of the shares entitled to vote thereon were present and voted, consent to
such action in writing.
e. The presence in person, or by proxy, of one-third of the votes entitled
to be cast on any matter by a voting group at any shareholders' meeting
constitutes a quorum of that voting group for action on that matter.
Transactions with Directors and Other Interested Parties
No contract or other transaction between the Corporation and any other
corporation, whether or not a majority of the shares of the capital stock of
such other corporation is owned by the Corporation, and no act of the
Corporation shall in any way be affected or invalidated by the fact that any of
the directors of the Corporation are pecuniarily or otherwise interested in, or
are directors or officers of, such other corporation. Any director of the
corporation, individually, or any firm with which such director is affiliated
may be a party to or may be pecuniarily or otherwise interested in any contract
or transaction of the Corporation; provided, however, that the fact that he or
such firm is so interested shall be disclosed or shall have been known to the
Board of Directors of the Corporation, or a majority thereof, at or before the
entering into such contract or transaction; and any director of the Corporation
who is also a director or officer of such other corporation, or who is so
interested, may be counted in determining the existence of a quorum at any
meeting of the Board of Directors of the Corporation which shall authorize such
contract or transaction, with like force and effect as if he were not such
director or officer of such other corporation or not so interested.
Limitation of Director Liability and Indemnification
No director of the Corporation shall have liability to the Corporation or
to its stockholders or to other security holders for monetary damages for breach
of fiduciary duty as a director; provided, however, that such provisions shall
not eliminate or limit the liability of a director to the Corporation or to its
shareholders or other security holders for monetary damages for: (i) any breach
of the director's duty of loyalty to the Corporation or to its shareholders or
other security holders; (ii) acts or omissions of the director not in good faith
or which involve intentional misconduct or a knowing violation of the law by
such director; (iii) acts by such director as specified by Colorado law; or (iv)
any transaction from which such director derived an improper personal benefit.
No officer or director shall be personally liable for any injury to person
or property arising out of a tort committed by an employee of the Corporation
unless such officer or director was personally involved in the situation giving
rise to the injury or unless such officer or director committed a criminal
offense. The protection afforded in the preceding sentence shall not restrict
other common law protections and rights that an officer or director may have.
The word "director" shall include at least the following, unless limited by
Colorado law: an individual who is or was a director of the Corporation and an
individual who, while a director of a Corporation is or was serving at the
Corporation's request as a director, officer, partner, trustee, employee or
agent of any other foreign or domestic corporation or of any partnership, joint
venture, trust, other enterprise or employee benefit plan. A director shall be
considered to be serving an employee benefit plan at the Corporation's request
if his duties to the Corporation also impose duties on or otherwise involve
services by him to the plan or to participants in or beneficiaries of the plan.
To the extent allowed by Colorado law, the word "director" shall also include
the heirs and personal representatives of all directors.
This Corporation shall be empowered to indemnify its officers and directors
to the fullest extent provided by law, including but not limited to the
provisions set forth in the Colorado Business Corporation Act, or any successor
provision.