Exhibit 2.0
Business Combination Agreement
BUSINESS COMBINATION AGREEMENT
This agreement is entered into the 10th day of May, 2005 between
MORTGAGE ASSISTANCE CENTER CORPORATION, a Florida corporation (herein, "Company
or MACC"), MORTGAGE ASSISTANCE CORPORATION, a Texas corporation, (herein, "MAC")
and the MAC Selling Shareholders, ("SELLERS) appearing on Exhibit "A". The
Company, MAC and the SELLERS desire to enter into a business combination
transaction whereby the Company will issue shares to SELLERS in exchange for
their shares of MAC.
For good and valuable consideration, receipt of which is acknowledged
the parties agree, represent and warrant the following:
Agreement
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A. Exchange of Shares. The Company and SELLERS agree to exchange shares whereby
the Company will acquire all of the issued and outstanding stock of MAC. The
Company will issue Company shares to SELLERS in exchange for their MAC shares.
The Company will issue One and six tenths (1.6) share of Company common stock
("Exchange Shares") for each single (1) share of SELLERS' MAC stock. The Company
will acquire One Hundred (100%) percent of the issued and outstanding capital
stock of MAC and issue SELLERS a total of Twelve Million (12,000,000) shares
Company common stock in exchange for Seven Million Five Hundred Thousand
(7,500,000) MAC shares. The shares will be issued from the Company's treasury
pursuant to the securities transaction exemption afforded by Section 4(2) and
Regulation D Rule 506 of the Securities Act of 1933, as amended. The shares will
be restricted securities bearing the Company's standard restrictive legend.
B. Representations, Warranties and Covenants of the Company: The Company
represents and warrants to SELLERS as of the date hereof and as of the Closing
Date:
SECTION 1. Enforceability of Agreement Against the Company. The Company
has all necessary power and authority to enter into this Agreement to which it
is a party, to carry out the obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement constitutes the legal, valid
and binding obligations of the Company enforceable against it in accordance with
the respective terms.
SECTION 2. Shares. The shares when issued will be free and clear of all
liens, charges, demands or adverse claims or other restrictions on the exercise
of any of the attributes of ownership with the exception of transfer
restrictions imposed by law. There are no contracts, arrangements, commitments
or restrictions relating to the issuance, sale, transfer or purchase or
obtaining of shares or other ownership interests in the Shares, except for this
Agreement.
SECTION 3. Incorporation, Authority and Qualification of The Company.
The Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Florida. The Company has all necessary
corporate power and authority to carry on the business now being conducted by
it. The Company is duly qualified to do business, and is in good standing, in
each jurisdiction, if any, where the character of its properties owned, operated
or leased or the nature of its activities makes such qualification necessary.
The Company is authorized to issue 50,000,000 common shares, par value $0.001
per share. The company has 664,603 common shares issued and outstanding. No
other classes of stock are authorized or issued.
SECTION 4. No Conflict. The execution and delivery by the Company of
this Agreement and each Related Document to which the Company are parties have
been obtained and all filings and notifications required by law, agreement or
otherwise have been made, the performance by the Company of this Agreement and
each Related Document to which they are parties will not:
a. Violate or conflict with any term or provision of the articles
or certificate of incorporation (or other charter documents)
of the Company;
b. Conflict with or violate any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award
applicable to Company;
c. Conflict with, result in any breach of, constitute a default
(or event which with the giving of notice or lapse of time, or
both, would become a default) under, give to others any rights
of termination, amendment, acceleration or cancellation of, or
result in the creation of any lien on any of the assets
pursuant to, any assigned contract or any licenses;
d. Without limiting the generality of the foregoing, result in
the termination, denial or impairment of any material
contract, arrangement or benefit granted with respect to the
Company's business, or require the payment of any fees, taxes
or assessments, pursuant to any federal, state or local
program relating to minority-owned businesses.
SECTION 5. Consents, Approvals and Notifications. The execution and
delivery by the Company of this Agreement and each Related Document to which it
is a party does not, and the performance by it of this Agreement and such
Related Documents will not, require any consent, approval, authorization or
other action by, or filing with or notification to, any Governmental Authority
or any other Person, except as may be required by federal and, or state
securities laws concerning the issuance of the shares to SELLERS.
SECTION 6. Financial Statements.
6.1 The Company has furnished to SELLERS copies of (a) audited
balance sheets of the Company and audited statements of income, changes in
shareholders' equity and statements of cash flow for the period ending December
31, 2004, together with the reports and notes thereon, independent certified
public accountants (collectively, the "Audited Financial Statements").
6.2 The Audited Financial Statements (a) have been prepared in
conformity with GAAP applied on a consistent basis from year to year (except as
noted otherwise therein); and (b) assuming the Company will continue as a going
concern, are true and correct and present fairly in all material respects the
financial condition of the Company and the results of operations and changes in
cash flow of the Company for the periods to which each relates.
6.3 To the knowledge of the Company, the Interim Financial
Statements, if prepared, (a) have been prepared in conformity with GAAP applied
on a consistent basis from year to year (except as noted otherwise therein),
subject to normal recurring year-end adjustments (the effect of which will not,
individually or in the aggregate, be material) and the absence of notes (which,
if presented, would not differ materially from those included in the Audited
Financial Statements), and (b) assuming the Company will continue as a going
concern, are true and correct and present fairly in all material respects the
financial condition of the Company and the results of operations and changes in
cash flow of the Company for the periods to which each relates.
SECTION 7. Litigation. To the best knowledge of the Company, there is
no claim, action, investigation, arbitration or proceeding pending or,
threatened against the Company, or against or relating to any of the assets or
the ability of the Company to perform its obligations hereunder, before any
arbitrator, judge, court or governmental authority. Company is not subject to
any order, writ judgment, injunction, decree, determination or award of any
arbitrator, judge, court or governmental authority.
SECTION 8. Contracts. To the extent applicable, Exhibit "B" contains an
accurate and complete list of all written and oral agreements and contracts in
effect on the date of this Agreement to which the Company is a party in
connection with the business operations or by which any of the Company's
properties or assets relating to the operation are bound. The are no contracts
in formation or which are capable of subsequent formation as a result of future
satisfied conditions. The Company has made available to SELLERS true and
complete copies of the contracts (including any amendments or modifications
thereto).
SECTION 9. Environmental Matters. In addition to any other express
agreements of Company contained herein, the matters set forth in this paragraph
constitute representations and warranties by the Company which will be true and
correct on the date of this Agreement and as of the date of closing. In the
event that, during the period between the execution of this Agreement and the
closing, the Company learns, or has reason to believe, that any of the following
representations and warranties may cease to be true, the Company hereby
covenants to give notice thereof to MAC and SELLERS immediately:
(a) The Company has not received notice from any governmental agency pertaining
to the violation of any law or regulation of toxic hazardous substances or
dangerous wastes and affecting any Company property, and it has no knowledge of
any facts which might be a basis for any such notice.
(b) No toxic or hazardous substances have been improperly generated, treated,
released, stored or disposed of, or otherwise deposited in or on any Company
property, including without limitation, the surface waters and subsurface waters
thereof, no underground tanks have been located on any Company property, and
there have not been nor are now present any substances or conditions in or on
any Company property which may support a claim or cause of action under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (the "Superfund Act"), Federal Resource Conservation and Recovery Act of
1976, 42U.S.C. Section 6901, et seq.; Federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 49 U.S.C. Section 1801, et
seq., as amended; Federal Clean Air Act, 42 U.S.C. Sections 7401-7626; Federal
Water Pollution Control Act, Federal Clean Water Act of 1977, 33 U.S.C. Section
1251, st seq: Federal Insecticide, Fungicide, and Rodenticide Act, Federal
Pesticide Act of 1978, 7 U.S.C. Paragraph 13, et seq.; Federal Toxic Substances
Control Act, 15 U.S.C. Section 2601, et seq.; Federal Safe Drinking Water Act,
42 U.S.C. Section 300(f), et seq. or any other federal, state, or local
environmental statutes, regulations, ordinances or regulatory requirements. This
environmental matters section will be interpreted to include, but not be limited
to, any substance which after release into the environment and upon exposure,
ingestion, inhalation or assimilation, either directly from the environment or
indirectly by ingestion through food chains or otherwise, will or may reasonably
be anticipated to cause sickness, death, disease, behavior abnormalities, cancer
or genetic abnormalities. The Company will hold MAC and SELLERS harmless from
and indemnify them against and from any damage, loss, expenses or liability
resulting from any breach, of this representation and warranty, including all
attorneys fees and costs incurred as a result thereof.
SECTION 10. Taxes. The Company has or will duly file or caused to be
filed all federal income tax returns and all other federal, state, county, local
or city tax returns which are required to be filed, including, but not limited
to, income and employee withholding taxes, and the Company has paid or caused to
be paid all taxes shown on said returns or on any tax assessment received by it
to the extent that such taxes have become due, or has set aside on its books
reserves (segregated to the extent required by sound accounting practice)
reasonably deemed by the Company to be adequate with respect thereto. No events
have occurred which could impose upon SELLERS, any transferee liability for any
taxes, penalties, or interest due or to become due from the Company.
SECTION 11. Absence of Changes. Since December 31, 2004, the date of
the Company's Audited Financial Statements, and Interim Financial Statements for
the period ending March 31, 2005, the Company has operated its business in the
ordinary course consistent with past practices and there has not been, except as
disclosed in this Agreement or the Exhibits attached hereto:
i. any Material Adverse Effect;
ii. any damage, destruction or loss (whether or not covered by
insurance) affecting any tangible asset or property used or useful in the
business operations, normal wear and tear excepted;
iii. any payments, discharges or satisfactions by the Company of any
liens, claims, charges or liabilities (whether absolute, accrued, contingent or
otherwise and whether due or to become due) relating to the business operations,
other than in the ordinary course of the business and consistent with past
practice;
iv. any licenses, sales, transfers, pledges, mortgages or other
dispositions of any tangible or intangible assets having a value over $1,000 (in
the aggregate) used or held for use in connection with the operation of the
business, other than in the ordinary course of business and consistent with past
practice;
v. any write-offs as uncollectible of any accounts receivable or notes
receivable of the operations, or any portion thereof, not provided for in the
allowance for uncollectible accounts in the Interim Financial Statements;
vi. any cancellations of any material debts or claims of, or any
amendments, terminations or waivers of any rights of material value to, the
business operations;
vii. any general uniform increase in or change in the method of
computing the compensation of employees of the Company who perform services for
the benefit of the business operations;
viii. any material changes in the manner in which the Company extends
discount or credits to customers or otherwise deals with customers of its
business;
ix. any material changes in the accounting methods or practices
followed by the Company and or any changes in depreciation or amortization
policies or rates theretofore adopted;
x. any capital commitments by the Company and for additions to
property, plant or equipment of the business operations;
xi. any agreements or commitments to merge or consolidate with or
otherwise acquire any other corporation, association, firm or other business
organization or division thereof;
xii. any declarations of dividend, payment of any dividend, issuance of
any securities, purchase or redemption of any securities, commitments or
authorizations for any changes to its Articles of Incorporation or amendments to
any by-laws, conversions of any options, warrants or otherwise into common
shares;
xiii. any other material transaction relating to the Company other than
in the ordinary course of the business and consistent with past practice; or
xiv. any agreements or understandings, whether in writing or otherwise,
for the Company to take any of the actions specified in items i. through xiii.
above.
SECTION 12. Undisclosed Liabilities. The Company does not have any
liabilities or obligations of any nature that would be required by GAAP to be
reflected in the Financial Statements (subject, in the case of unaudited
statements, to normal year-end audit adjustments), except: (a) such liabilities
and obligations which are reflected in the Financial Statements, or (b) such
liabilities or obligations which were incurred in the ordinary course of
business for normal trade or business obligations and are not individually or in
the aggregate in excess of $1,000.
SECTION 13. Compliance with Laws. Except as individually or in the
aggregate would not have a Material Adverse Effect, the Company has complied in
all respects with all laws of all Governmental Authorities (including all tariff
and reporting requirements) with respect to its business operations.
C. Representations, Warranties Covenants of SELLERS and MAC: MAC and
SELLERS represent and warrant to the Company as of the date hereof and as of the
Closing Date:
SECTION 1. Enforceability of Agreement Against the SELLERS and MAC. MAC
and SELLERS have all necessary power and authority to enter into this Agreement
to which each is a party, to carry out the obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement constitutes the
legal, valid and binding obligations of the SELLERS and MAC enforceable against
it in accordance with the respective terms.
SECTION 2. Shares. SELLERS' shares have been validly issued and are
free and clear of all liens, charges, demands or adverse claims or other
restrictions on the exercise of any of the attributes of ownership. There are no
contracts, arrangements, commitments or restrictions relating to the issuance,
sale, transfer or purchase or obtaining of shares or other ownership interests
in the Shares.
SECTION 3. Incorporation, Authority and Qualification of MAC. MAC is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Texas. MAC has all necessary corporate power and authority
to carry on the business now being conducted by it. MAC is duly qualified to do
business, and is in good standing, in each jurisdiction, if any, where the
character of its properties owned, operated or leased or the nature of its
activities makes such qualification necessary. MAC is authorized to issue
100,000,000 common shares, par value $0.001 per share. The company has 5,331,350
common shares issued and outstanding. No other classes of stock are authorized
or issued.
SECTION 4. No Conflict. The execution and delivery by the SELLERS and
MAC of this Agreement and each Related Document to which the each is a party
have been obtained and all filings and notifications required by law, agreement
or otherwise have been made, the performance by the SELLERS and MAC of this
Agreement and each Related Document to which each is a party will not:
a. Violate or conflict with any term or provision of the articles
or certificate of incorporation (or other charter documents)
of MAC;
b. Conflict with or violate any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award
applicable to MAC or SELLERS;
c. Conflict with, result in any breach of, constitute a default
(or event which with the giving of notice or lapse of time, or
both, would become a default) under, give to others any rights
of termination, amendment, acceleration or cancellation of, or
result in the creation of any lien on any of the assets
pursuant to, any assigned contract or any licenses;
d. Without limiting the generality of the foregoing, result in
the termination, denial or impairment of any material
contract, arrangement or benefit granted with respect to MAC
or SELLERS' business, or require the payment of any fees,
taxes or assessments, pursuant to any federal, state or local
program relating to minority- owned businesses.
SECTION 5. Consents, Approvals and Notifications. The execution and
delivery by the SELLERS and MAC of this Agreement and each Related Document to
which each is a party does not, and the performance by it of this Agreement and
such Related Documents will not, require any consent, approval, authorization or
other action by, or filing with or notification to, any Governmental Authority
or any other Person.
SECTION 6. Information on Company. The Sellers have been furnished with
the Company's Form 10-KSB for the year ended December 31, 2004 as filed with the
Commission, (hereinafter referred to collectively as the "Reports"). In
addition, the Sellers have received in writing from the Company such other
information concerning its operations, financial condition and other matters as
the Sellers has requested in writing (such other information is collectively,
the "Other Written Information"), and considered all factors the Sellers deem
material in deciding on the advisability of investing in the Exchange Shares.
SECTION 7. Information on Sellers. The Sellers are, and will be at the
time of the issuance of the Exchange Shares "accredited investors", as such term
is defined in Regulation D promulgated by the Commission under the 1933 Act.
Alternatively, non-accredited Sellers are experienced in investments and
business matters and have made investments of a speculative nature and have
purchased securities of United States publicly-owned companies in private
placements in the past. Additionally, Sellers, with their representatives, have
such knowledge and experience in financial, tax and other business matters as to
enable the Sellers to utilize the information made available by the Company to
evaluate the merits and risks of and to make an informed investment decision
with respect to the proposed purchase of the Exchange Shares. The Exchange
Shares represent a speculative investment. The Sellers have the authority and
are duly and legally qualified to purchase and own the Exchange Shares. The
Sellers are able to bear the risk of such investment for an indefinite period
and to afford a complete loss of their investment. The information set forth on
the signature page regarding the Sellers is accurate.
SECTION 8. Exchange of Common Stock. On the closing date, the Sellers
will purchase the Exchange Shares as principal for their own account and without
a view to publicly distribute the Exchange Shares.
SECTION 9. Compliance with Securities Act. The Sellers understand and
agree that the Exchange Shares have not been registered under the Securities Act
of 1933 Act ("the Act") or any applicable state securities laws. The issuance of
the Exchange Shares are pursuant to a transaction that does not require
registration under the Act (based in part on the accuracy of the representations
and warranties of Sellers contained herein). As a result of this transaction
exemption the Exchange Shares must be held indefinitely unless a subsequent
disposition is registered under the Securities Act of 1933 Act or any applicable
state securities laws or is exempt from such registration. The Exchange Shares
are issued under Regulation D Rule 506 exemption and are deemed "federal covered
securities" for state securities transactional exemption purposes.
SECTION 10. Shares Legend. The Shares will bear the following or
similar restrictive legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO MORTGAGE
ASSISTANCE CENTER CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED."
SECTION 11. Communication of Offer. At no time were the Sellers
presented with or solicited by any leaflet, newspaper or magazine article, radio
or television advertisement, or any other form of general advertising or
solicited or invited to attend a promotional meeting otherwise than in
connection and concurrently with such communicated offer.
SECTION 12. Authority; Enforceability. This Agreement and other
agreements delivered together with this Agreement or in connection herewith have
been duly authorized, executed and delivered by the Sellers. This Agreement is
valid, binding and enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
generally and to general principles of equity. Sellers have full individual
power and authority necessary to enter into this Agreement and such other
agreements and to perform their obligations hereunder and under all other
agreements entered into by the Sellers in regard to this transaction.
SECTION 13. Restricted Securities. Sellers understand that the
Securities have not been registered under the 1933 Act and such Sellers will not
sell, offer to sell, assign, pledge, hypothecate or otherwise transfer any of
the Securities unless (i) pursuant to an effective registration statement under
the 1933 Act, (ii) such Sellers provides the Company with an opinion of counsel,
in a form reasonably acceptable to the Company, to the effect that a sale,
assignment or transfer of the Securities may be made without registration under
the 1933 Act, or (iii) Sellers provide the Company with reasonable assurances
(in the form of seller and broker representation letters) that the Exchange
Shares, as the case may be, can be sold pursuant to (A) Rule 144 promulgated
under the Securities Act of 1933 Act, or (B) Rule 144(k) promulgated under the
Securities Act of 1933 Act, in each case following the applicable holding period
set forth therein.
SECTION 14. No Governmental Review. Each Seller understands that no
federal or state agency or any other governmental or state agency has passed on
or made recommendations or endorsement of the Securities or the suitability of
the investment in the Exchange Shares, nor have such authorities passed upon or
endorsed the merits of the offering of the Exchange Shares.
SECTION 15. Correctness of Representations. Each Seller and MAC
represent as to such Seller that the foregoing representations and warranties
are true and correct as of the date hereof and, unless a Seller otherwise
notifies the Company prior to the Closing Date (as hereinafter defined), will be
true and correct as of the Closing Date
SECTION 16. Financial Statements.
16.1 MAC has furnished to the Company copies of (a) audited
balance sheets of the Company and audited statements of income, changes in
shareholders' equity and statements of cash flow for the period ending December
31, 2004, together with the reports and notes thereon, independent certified
public accountants (collectively, the "Audited Financial Statements").
16.2 The Audited Financial Statements (a) have been prepared
in conformity with GAAP applied on a consistent basis from year to year (except
as noted otherwise therein); and are true and correct and present fairly in all
material respects the financial condition of MAC and the results of operations
and changes in cash flow of MAC for the periods to which each relates.
16.3 To the knowledge of the MAC , the Interim Financial
Statements, if prepared, (a) have been prepared in conformity with GAAP applied
on a consistent basis from year to year (except as noted otherwise therein),
subject to normal recurring year-end adjustments (the effect of which will not,
individually or in the aggregate, be material) and the absence of notes (which,
if presented, would not differ materially from those included in the Audited
Financial Statements), and are true and correct and present fairly in all
material respects the financial condition of the Company and the results of
operations and changes in cash flow of MAC for the periods to which each
relates.
SECTION 17. Litigation. To MAC's best knowledge, there is no claim,
action, investigation, arbitration or proceeding pending or, threatened against
MAC, or against or relating to any of the assets or the ability of it to perform
its obligations hereunder, before any arbitrator, judge, court or governmental
authority. MAC is not subject to any order, writ judgment, injunction, decree,
determination or award of any arbitrator, judge, court or governmental
authority.
SECTION 18. Contracts. To the extent applicable, Exhibit "C" contains
an accurate and complete list of all written and oral agreements and contracts
in effect on the date of this Agreement to which MAC is a party in connection
with the business operations or by which any of its properties or assets
relating to the operation are bound. The are no contracts in formation or which
are capable of subsequent formation as a result of future satisfied conditions.
MAC has made available to the Company true and complete copies of the contracts
(including any amendments or modifications thereto).
SECTION 19. Environmental Matters. MAC has not used any property, real
or personal to generate, manufacture, refine, transport, treat, store, handle,
or dispose of any hazardous substances except in accordance with all applicable
federal and state environmental laws.
SECTION 20. Taxes. MAC has or will duly file or caused to be filed all
federal income tax returns and all other federal, state, county, local or city
tax returns which are required to be filed, including, but not limited to,
income and employee withholding taxes, and it has paid or caused to be paid all
taxes shown on said returns or on any tax assessment received by it to the
extent that such taxes have become due, or has set aside on its books reserves
(segregated to the extent required by sound accounting practice) reasonably
deemed by it to be adequate with respect thereto.
SECTION 21. Absence of Changes. Since the date of the Audited Financial
Statements, MAC has operated its business in the ordinary course consistent with
past practices and there has not been, except as disclosed in this Agreement or
the Exhibits attached hereto:
i. any Material Adverse Effect;
ii. any damage, destruction or loss (whether or not covered by
insurance) affecting any tangible asset or property used or useful in the
business operations, normal wear and tear excepted;
iii. any payments, discharges or satisfactions by it of any liens,
claims, charges or liabilities (whether absolute, accrued, contingent or
otherwise and whether due or to become due) relating to the business operations,
other than in the ordinary course of the business and consistent with past
practice;
iv. any licenses, sales, transfers, pledges, mortgages or other
dispositions of any tangible or intangible assets having a value over $1,000 (in
the aggregate) used or held for use in connection with the operation of the
business, other than in the ordinary course of business and consistent with past
practice;
v. any write-offs as uncollectible of any accounts receivable or notes
receivable of the operations, or any portion thereof, not provided for in the
allowance for uncollectible accounts in the Interim Financial Statements;
vi. any cancellations of any material debts or claims of, or any
amendments, terminations or waivers of any rights of material value to, the
business operations;
vii. any general uniform increase in or change in the method of
computing the compensation of employees of it who perform services for the
benefit of the business operations;
viii. any material changes in the manner in which MAC extends discount
or credits to customers or otherwise deals with customers of its business;
ix. any material changes in the accounting methods or practices
followed by MAC and or any changes in depreciation or amortization policies or
rates theretofore adopted;
x. any capital commitments by MAC and for additions to property, plant
or equipment of the business operations;
xi. any agreements or commitments to merge or consolidate with or
otherwise acquire any other corporation, association, firm or other business
organization or division thereof;
xii. any declarations of dividend, payment of any dividend, issuance of
any securities, purchase or redemption of any securities, commitments or
authorizations for any changes to its Articles of Incorporation or amendments to
any by-laws, conversions of any options, warrants or otherwise into common
shares;
xiii. any other material transaction relating to MAC other than in the
ordinary course of the business and consistent with past practice; or
xiv. any agreements or understandings, whether in writing or otherwise,
for MAC to take any of the actions specified in items i. through xiii. above.
SECTION 22. Undisclosed Liabilities. MAC does not have any liabilities
or obligations of any nature that would be required by GAAP to be reflected in
the Financial Statements (subject, in the case of unaudited statements, to
normal year-end audit adjustments), except: (a) such liabilities and obligations
which are reflected in the Financial Statements, or (b) such liabilities or
obligations which were incurred in the ordinary course of business for normal
trade or business obligations and are not individually or in the aggregate in
excess of $1,000.
SECTION 23. Compliance with Laws. Except as individually or in the
aggregate would not have a Material Adverse Effect, MAC has complied in all
respects with all laws of all Governmental Authorities (including all tariff and
reporting requirements) with respect to its business operations.
SECTION 24. Consents, Approvals and Notifications. The execution and
delivery by MAC and SELLERS of this Agreement to which each is a party does not,
and the performance by each of this Agreement will not, require any consent,
approval, authorization or other action by, or filing with or notification to,
any Governmental Authority or any other Person.
D. Miscellaneous Provisions.
SECTION 1. Conditions to Closing
1.1 Conditions to Obligations of the Company. The obligations
of the Company to consummate the sale of the shares shall be subject to the
fulfillment, at or prior to the Closing, of each of the following conditions,
any one of which may be waived by the SELLERS without waiver of any other rights
or remedies which SELLERS may have under this Agreement:
i. The Company's Closing Documents. At the Closing,
the Company shall have executed and delivered the following Related Documents to
which they are parties and for which each is responsible: (1) a signed copy of
this Agreement, (2) the Exchange Share Prospectus, (3) the Company's annual
report as filed on Form 10-KSB, and (4) the exchange share certificates issued
and delivered to each SELLER.
1.2 Conditions to Obligations of SELLERS. The obligations of
SELLERS to consummate the exchange of their MAC shares contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing, of
each of the following conditions, any one of which may be waived by the Company
without waiver of any other rights or remedies which the Company may have under
this Agreement.
i. Closing Documents. At the Closing, SELLERS shall have
executed and delivered the following Related Documents to which they
are parties and for which each is responsible: (1) their signed copy of
this Agreement,(2) the completed investor qualification questionnaire;
and (3) the exchange share certificates duly endorsed and delivered to
the Company.
SECTION 2. Indemnification.
2.1 Survival. All representations and warranties and covenants
and agreements contained herein shall survive the execution of hereof and the
Closing Date. Any investigations by or on behalf of any party shall not
constitute a waiver as to enforcement of any representation, warranty or
covenant contained in this Agreement. No notice or information delivered by one
party shall affect the other party's right to rely on any representation or
warranty made by the party delivering the notice or information or relieve that
party of any obligations under this Agreement as the result of a breach of any
of its representations and warranties.
SECTION 3. General Provisions.
3.1 Headings and Interpretation. The headings used in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of any term or provision of this Agreement.
3.2 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party.
3.3 Entire Agreement. This Agreement represents the entire
understanding of the parties with reference to the matters set forth herein.
This Agreement supersedes all prior negotiations, discussions, correspondence,
communications and prior agreements among the parties relating to the subject
matter herein.
3.4 Amendment. This Agreement may not be amended or modified
except by an instrument in writing signed by the parties hereto.
3.5 Applicable Law. This Agreement shall be governed by the
substantive laws of the State of Texas, without regard to its conflict of laws
provisions.
3.6 Counterparts and Facsimile Transmission Copies of
Originals. This Agreement may be executed in several original or facsimile copy
counterparts and all so executed and transmitted shall constitute one Agreement,
binding on all the parties hereto even though all the parties are not
signatories to the original or the same counterpart. Facsimile transmitted
signatures shall be deemed valid as though they were originals and the parties
may perform any and all obligations and duties in reliance on the facsimile
copies.
3.7 Further Assurances, Additional Documents, Etc. The parties
will cooperate with each other to accommodate the intent of this agreement.
IN WITNESS WHEREOF, the parties hereto have executed, or caused their
duly authorized representatives to execute, this Business Combination Agreement
as of the date first written above.
MORTGAGE ASSISTANCE CENTER MORTGAGE ASSISTANCE CORPORATION
CORPORATION
/s/ Dale Hensel /s/ Dale Hensel
- ------------------------ ------------------------
By: Dale Hensel By: Dale Hensel
Title: President Title: President
By: /s/ Dan Barnett
---------------------
Dan Barnett
Title: Secretary
SELLERS SIGNATURES
/s/ Michelle Taylor
- ------------------------ ------------------------
John Kirtland Michelle Taylor
- ------------------------ ------------------------
Robert Birkeland Robert Parma
- ------------------------ -----------------------
Sterling Trust, FBO 2612 Main St. Partners, Ltd.
James A.. Campbell By: Jeff Swaney
By: James A. Campbell Authorized Partner
Authorized Agent
- ------------------------ ------------------------
Mitchell McGowen Jennifer Wereszynski
- ------------------------ ------------------------
Ruth Bison Gary Wereszynski
- ------------------------ ------------------------
Nancy Kopf Joseph Kopf
- ------------------------ ------------------------
Mary Ann Andrews Richard Freeman
- ------------------------ ------------------------
Jon Freeman Paul Sampeck
- ------------------------ ------------------------
Kenneth Lowery Melanie Clay
/s/ Dale Hensel
- ------------------------ ------------------------
Sterling Trust FBO Leberknight FLP
Pat Raaz IRA By: Dale Hensel
By: Pat Raaz Authorized Agent
Authorized Agent
/s/ Dan Barnett /s/ Dale Hensel
- ------------------------ ------------------------
Dan Barnett Dale Hensel
- ------------------------ ------------------------
Pat Janus Gayle Victory
- ------------------------ ------------------------
Don Rivera Chet Goldberg
- ------------------------ ------------------------
Chris Ercegovich Ernest Gusella
- ------------------------ ------------------------
Tomiyo Sasaki Mike Condon
- ------------------------ ------------------------
Mark Hitchcock Darryl Williams
- ------------------------ ------------------------
Thomas Rhodes Wendy LeJune
- ------------------------ ------------------------
Mary Nell Finney Trust Sally Ann Seward
By:
Trustee
EXHIBIT "A"
SELLERS
Each Seller will transfer and deliver to Mortgage Assistance Center Corporation
(MACC) their Mortgage Assistance Corporation (MAC) shares listed in column A and
MACC will issue each MAC shareholder the number of MACC shares listed in column
B.
(A) (B)
SELLERS: MAC Shares Company Shares
- -------- ---------- --------------
1. John Kirtland 40,000 64,000
2. Michelle Taylor 647,734 1,036,375
3. Robert Birkeland 25,000 40,000
4. Robert Parma 11,350 18,160
5. Sterling Trust(Campbell) 55,000 88,000
6. 2612 Main St. 20,000 32,000
7. Mitchell McGowan 10,000 16,000
8. J.& G. Wereszynski 5,000 8,000
9. Ruth Bison 15,000 24,000
10. Mary Ann Andrews 25,000 40,000
11. N.& J. Kopf 96,000 153,600
12. Richard Freeman 15,000 24,000
13. Jon Freeman 5,000 5,000
14. Paul Sampeck 25,000 40,000
15. Kenneth Lowery 25,000 40,000
16. Melanie Clay 15,000 24,000
17. Sterling Trust(Raaz) 24,000 38,400
18. Pat Raaz 47,500 76,000
19. Leberknight FLP 2,400,000 3,840,000
20. Dale Hensel 744,411 1,191,058
21. Dan Barnett 3,104,411 4,967,058
22. Pat Janus 1,000 1,600
23. Gayle Victory 500 800
24. Don Rivera 750 1,200
25. Chet Goldberg 4,887 7,820
26. Chris Ercegovich 4,500 7,200
27. E. Gusella and T. Sasaki 28,750 46,000
28. Mike Condon 28,000 44,800
29. Mark Hitchcock 12,500 20,000
30. Darryl Williams 8,268 13,229
31. Thomas Rhodes 4,800 7,680
32. Wendy LeJune 42,575 68,120
33. Mary Nell Finney Trust 1,000 1,600
34. Sally Ann Sewald 7,064 11,303
Total 7,500,000 12,000,000