SHARE EXCHANGE AGREEMENT by and among Famous Uncle Al’s Hot Dogs & Grille, Inc., a Delaware corporation and American Standard Energy Corp., a Nevada corporation and the Shareholders of American Standard Energy Corp. Dated as of October 1, 2010
Exhibit
2.1
by
and among
Famous
Uncle Al’s Hot Dogs & Grille, Inc.,
a
Delaware corporation
and
American
Standard Energy Corp.,
a Nevada
corporation
and
the
Shareholders of
American
Standard Energy Corp.
Dated as
of October 1, 2010
EXHIBIT
A
THIS SHARE EXCHANGE AGREEMENT
(hereinafter referred to as this “Agreement”) is
entered into as of this 1st day of
October, 2010, by and between Famous Uncle Al’s Hot Dogs & Grille, Inc., a
Delaware corporation (hereinafter referred to as “Famous Al’s”),
American Standard Energy, Corp., a Nevada company (hereinafter referred to as
“ASEC”) and the
shareholders of ASEC (the “ASEC Shareholders”),
upon the following premises:
Premises
WHEREAS, Famous Al’s is a
Delaware company with no significant operations;
WHEREAS, ASEC is a private
company incorporated under the laws of the State of Nevada on April 25, 2010,
for the purposes of drilling exploratory and developmental ▇▇▇▇▇ primarily in
the Northern Regions of the U.S. ASEC is currently evaluating ▇▇▇▇▇▇
properties for acquisition.
WHEREAS, Famous Al’s agrees to
acquire up to 100% of the issued and outstanding shares of ASEC from the ASEC
Shareholders in exchange for the issuance of certain shares of Famous Al’s (the
“Exchange”) and
the ASEC Shareholders agree to exchange their shares of ASEC on the terms
described herein. On the Closing Date (as defined in Section 4.03), ASEC will
become a wholly-owned subsidiary of Famous Al’s;
Agreement
NOW THEREFORE, on the stated
premises and for and in consideration of the mutual covenants and agreements
hereinafter set forth and the mutual benefits to the parties to be derived here
from, and intending to be legally bound hereby, it is hereby agreed as
follows:
ARTICLE
I
REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF ASEC
As an
inducement to, and to obtain the reliance of Famous Al’s, except as set forth in
the ASEC Schedules (as hereinafter defined), ASEC represents and warrants as of
the Closing Date, as defined below, as follows:
Section
1.01 Incorporation.
ASEC is a
company duly incorporated, validly existing, and in good standing under the laws
of the State of Nevada and has the corporate power and is duly authorized under
all applicable laws, regulations, ordinances, and orders of public authorities
to carry on its business in all material respects as it is now being
conducted. Included in the ASEC Schedules are complete and correct
copies of the articles of incorporation of ASEC as in effect on the date
hereof. The execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated hereby will not, violate any
provision of ASEC’s articles of incorporation. ASEC has taken all
actions required by law and its articles of incorporation, or otherwise to
authorize the execution and delivery of this Agreement. ASEC has full
power, authority, and legal capacity and has taken all action required by law,
its articles of incorporation, and otherwise to consummate the transactions
herein contemplated.
Section
1.02 Authorized
Shares. The number of shares which ASEC is authorized to issue
consists of 11,000,000 shares of a single class, par value of $0.001 per
share. There are 11,000,000 shares currently issued and
outstanding. The issued and outstanding shares are validly issued,
fully paid, and non-assessable and not issued in violation of the preemptive or
other rights of any person.
B-1
EXHIBIT
A
Section
1.03 Subsidiaries and Predecessor
Corporations. Except as set forth in the ASEC Schedule 1.03, ASEC
does not have any subsidiaries, and does not own, beneficially or of record, any
shares of any other corporation. For purposes hereinafter, the term
“ASEC” also includes those subsidiaries set forth on the ASEC
Schedules.
Section
1.04 No Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, constitute a default under, or
terminate, accelerate or modify the terms of any indenture, mortgage, deed of
trust, or other material agreement, or instrument to which ASEC is a party or to
which any of its assets, properties or operations are subject.
Section
1.05 Compliance With Laws and
Regulations. To the
best of its knowledge, ASEC has complied with all applicable statutes and
regulations of any federal, state, or other governmental entity or agency
thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets, or condition of
ASEC or except to the extent that noncompliance would not result in the
occurrence of any material liability for ASEC. This compliance
includes, but is not limited to, the filing of all reports to date with federal
and state securities authorities.
Section
1.06 Approval of
Agreement. The
Board of Directors of ASEC has authorized the execution and delivery of this
Agreement by ASEC and has approved this Agreement and the transactions
contemplated hereby, and will recommend to the ASEC Shareholders that the
Exchange be accepted.
Section
1.07 ASEC
Schedules. ASEC
has delivered to Famous Al’s the following schedules, which are collectively
referred to as the “ASEC Schedules” and which consist of separate schedules
dated as of the date of execution of this Agreement, all certified by the chief
executive officer of ASEC as complete, true, and correct as of the date of this
Agreement in all material respects:
(a) a
schedule containing complete and correct copies of the articles of incorporation
of ASEC in effect as of the date of this Agreement; and
(b) a
schedule containing the other information requested above.
ASEC
shall cause the ASEC Schedules and the instruments and data delivered to Famous
Al’s hereunder to be promptly updated after the date hereof up to and including
the Closing Date.
Section
1.08 Valid
Obligation. This
Agreement and all agreements and other documents executed by ASEC in connection
herewith constitute the valid and binding obligation of ASEC, enforceable in
accordance with its or their terms, except as may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors’ rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefore may be brought.
ARTICLE
II
REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF FAMOUS AL’S
As an
inducement to, and to obtain the reliance of ASEC and the ASEC Shareholders,
except as set forth in the Famous Al’s Schedules (as hereinafter defined),
Famous Al’s represents and warrants, as of the date hereof and as of the Closing
Date, as follows:
B-2
EXHIBIT A
Section
2.01 Organization. Famous
Al’s is a corporation duly incorporated, validly existing, and in good standing
under the laws of Delaware and has the corporate power and is duly authorized
under all applicable laws, regulations, ordinances, and orders of public
authorities to carry on its business in all material respects as it is now being
conducted. Included in the Famous Al’s Schedules are complete and
correct copies of the certificate of incorporation and articles of association
of Famous Al’s (the “Articles”) as in
effect on the date hereof. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby will not,
violate any provision of Famous Al’s certificate of incorporation or
Articles. Famous Al’s has taken all action required by law, its
certificate of incorporation, its Articles, or otherwise to authorize the
execution and delivery of this Agreement, and Famous Al’s has full power,
authority, and legal right and has taken all action required by law, its
certificate of incorporation, Articles, or otherwise to consummate the
transactions herein contemplated.
Section
2.02 Capitalization.
(a) Famous
Al’s authorized capitalization consists of (a) 70,000,000 shares of common
stock, par value $0.001 per share, of which approximately 28,540,293 shares are
issued and outstanding. All issued and outstanding shares are legally
issued, fully paid, and non-assessable and not issued in violation of the
preemptive or other rights of any person. As of the Closing Date, no shares of
Famous Al’s common stock were reserved for issuance upon the exercise of
outstanding options to purchase the common shares; (iv) no common shares were
reserved for issuance upon the exercise of outstanding warrants to purchase
Famous Al’s common shares; and (v) no common shares were reserved for issuance
upon the conversion of any outstanding convertible notes, debentures or
securities. All outstanding Famous Al’s common shares have been
issued and granted in compliance with (i) all applicable securities laws and (in
all material respects) other applicable laws and regulations, and (ii) all
requirements set forth in any applicable Contracts.
(b) There
are no equity securities, partnership interests or similar ownership interests
of any class of any equity security of Famous Al’s, or any securities
exchangeable or convertible into or exercisable for such equity securities,
partnership interests or similar ownership interests, issued, reserved for
issuance or outstanding. Except as contemplated by this
Agreement or as set forth in Schedule 2.02, there
are no subscriptions, options, warrants, equity securities, partnership
interests or similar ownership interests, calls, rights (including preemptive
rights), commitments or agreements of any character to which Famous Al’s is a
party or by which it is bound obligating Famous Al’s to issue, deliver or sell,
or cause to be issued, delivered or sold, or repurchase, redeem or otherwise
acquire, or cause the repurchase, redemption or acquisition of, any shares of
capital stock, partnership interests or similar ownership interests of Famous
Al’s or obligating Famous Al’s to grant, extend, accelerate the vesting of or
enter into any such subscription, option, warrant, equity security, call, right,
commitment or agreement. There is no plan or arrangement to issue
Famous Al’s common shares or preferred stock except as set forth in this
Agreement.
Except as
contemplated by this Agreement and except as set forth in Schedule 2.02 hereto,
there are no registration rights, and there is no voting trust, proxy, rights
plan, anti-takeover plan or other agreement or understanding to which Famous
Al’s is a party or by which it is bound with respect to any equity security of
any class of Famous Al’s, and there are no agreements to which Famous Al’s is a
party, or which Famous Al’s has knowledge of, which conflict with this Agreement
or the transactions contemplated herein or otherwise prohibit the consummation
of the transactions contemplated hereunder.
Section
2.03 Subsidiaries and Predecessor
Corporations. Famous
Al’s does not have any predecessor corporation(s), no subsidiaries, and does not
own, beneficially or of record, any shares of any other
corporation.
B-3
EXHIBIT
A
Section
2.04 Financial
Statements.
(a) Included
in the Famous Al’s Schedules are (i) the audited balance sheets of Famous Al’s
as of December 31, 2009 and the related audited statements of operations,
stockholders’ equity and cash flows for December 31, 2009 together with the
notes to such statements and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, independent
certified public accountant, with respect thereto;
(b) Included
in the Famous Al’s Schedules are: (i) unaudited balance sheets of June 30, 2010
and the related unaudited statements of operations, stockholders’ equity and
cash flows for the quarters ended on such dates and all such financial
statements have been reviewed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Certified Public
Accountant;
(c) All
such financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved. The Famous Al’s balance sheets are true and accurate and present
fairly as of their respective dates the financial condition of Famous
Al’s. As of the date of such balance sheets, except as and to the
extent reflected or reserved against therein, Famous Al’s had no liabilities or
obligations (absolute or contingent) which should be reflected in the balance
sheets or the notes thereto prepared in accordance with generally accepted
accounting principles, and all assets reflected therein are properly reported
and present fairly the value of the assets of Famous Al’s, in accordance with
generally accepted accounting principles. The statements of operations,
stockholders’ equity and cash flows reflect fairly the information required to
be set forth therein by generally accepted accounting principles;
(d) Famous
Al’s has no liabilities with respect to the payment of any federal, state,
county, local or other taxes (including any deficiencies, interest or
penalties), except for taxes accrued but not yet due and payable;
(e) Famous
Al’s has timely filed all state, federal or local income and/or franchise tax
returns required to be filed by it from inception to the date
hereof. Each of such income tax returns reflects the taxes due for
the period covered thereby, except for amounts which, in the aggregate, are
immaterial;
(f) The
books and records, financial and otherwise, of Famous Al’s are in all material
aspects complete and correct and have been maintained in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved; and
(g) All
of Famous Al’s assets are reflected on its financial statements, and, except as
set forth in the Famous Al’s Schedules or the financial statements of Famous
Al’s or the notes thereto, Famous Al’s has no material liabilities, direct or
indirect, matured or unmatured, contingent or otherwise.
Section
2.05 Information. The
information concerning Famous Al’s set forth in this Agreement and the Famous
Al’s Schedules is complete and accurate in all material respects and does not
contain any untrue statements of a material fact or omit to state a material
fact required to make the statements made, in light of the circumstances under
which they were made, not misleading. In addition, Famous Al’s has
fully disclosed in writing to ASEC (through this Agreement or the Famous Al’s
Schedules) all information relating to matters involving Famous Al’s or its
assets or its present or past operations or activities which (i) indicated or
may indicate, in the aggregate, the existence of a greater than $1,000 liability
, (ii) have led or may lead to a competitive disadvantage on the part of Famous
Al’s or (iii) either alone or in aggregation with other information covered by
this Section, otherwise have led or may lead to a material adverse effect on
Famous Al’s, its assets, or its operations or activities as presently conducted
or as contemplated to be conducted after the Closing Date, including, but not
limited to, information relating to governmental, employee, environmental,
litigation and securities matters and transactions with affiliates.
B-4
EXHIBIT A
Section
2.06 Options or
Warrants. There
are no existing options, warrants, calls, or commitments of any character
relating to the authorized and unissued stock of Famous Al’s.
Section
2.07 Absence of Certain Changes
or Events. Since
the date of the most recent Famous Al’s balance sheet:
(a) there
has not been (i) any material adverse change in the business, operations,
properties, assets or condition of Famous Al’s or (ii) any damage, destruction
or loss to Famous Al’s (whether or not covered by insurance) materially and
adversely affecting the business, operations, properties, assets or condition of
Famous Al’s;
(b)
Famous Al’s has not (i) amended its certificate of incorporation or Articles
except as required by this Agreement; (ii) declared or made, or agreed to
declare or make any payment of dividends or distributions of any assets of any
kind whatsoever to stockholders or purchased or redeemed, or agreed to purchase
or redeem, any of its capital stock; (iii) waived any rights of value which in
the aggregate are outside of the ordinary course of business or material
considering the business of Famous Al’s; (iv) made any material change in its
method of management, operation, or accounting; (v) entered into any
transactions or agreements other than in the ordinary course of business; (vi)
made any accrual or arrangement for or payment of bonuses or special
compensation of any kind or any severance or termination pay to any
present or former officer or employee; (vii) increased the rate of compensation
payable or to become payable by it to any of its officers or directors or any of
its salaried employees whose monthly compensation exceed $1,000;
or (viii) made any increase in any profit sharing, bonus, deferred
compensation, insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement, made to, for or with its officers, directors, or
employees;
(c) Famous
Al’s has not (i) granted or agreed to grant any options, warrants, or other
rights for its stock, bonds, or other corporate securities calling for the
issuance thereof; (ii) borrowed or agreed to borrow any funds or incurred, or
become subject to, any material obligation or liability (absolute or contingent)
except liabilities incurred in the ordinary course of business; (iii) paid or
agreed to pay any material obligations or liabilities (absolute or contingent)
other than current liabilities reflected in or shown on the most recent Famous
Al’s balance sheet and current liabilities incurred since that date in the
ordinary course of business and professional and other fees and expenses in
connection with the preparation of this Agreement and the consummation of the
transaction contemplated hereby; (iv) sold or transferred, or agreed to sell or
transfer, any of its assets, properties, or rights (except assets, properties,
or rights not used or useful in its business which, in the aggregate have a
value of less than $1,000), or canceled, or agreed to cancel, any debts or
claims (except debts or claims which in the aggregate are of a value less than
$1,000); (v) made or permitted any amendment or termination of any contract,
agreement, or license to which it is a party if such amendment or termination is
material, considering the business of Famous Al’s; or (vi) issued, delivered or
agreed to issue or deliver, any stock, bonds or other corporate securities
including debentures (whether authorized and unissued or held as treasury
stock), except in connection with this Agreement; and
(d) to
its knowledge, Famous Al’s has not become subject to any law or regulation which
materially and adversely affects, or in the future, may adversely affect, the
business, operations, properties, assets or condition of Famous
Al’s.
Section
2.08 Litigation and
Proceedings. There
are no actions, suits, proceedings or investigations pending or, to the
knowledge of Famous Al’s after reasonable investigation, threatened by or
against Famous Al’s or affecting Famous Al’s or its properties, at law or in
equity, before any court or other governmental agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind except as disclosed in
the Famous Al’s Schedule
2.08. Famous Al’s has no knowledge of any default on its part
with respect to any judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator, or governmental agency or instrumentality
or any circumstance which after reasonable investigation would result in the
discovery of such default.
B-5
EXHIBIT
A
Section
2.09 Contracts.
(a) Famous
Al’s is not a party to, and its assets, products, technology and properties are
not bound by, any contract, franchise, license agreement, agreement, debt
instrument or other commitments whether such agreement is in writing or
oral;
(b)
Famous Al’s is not a party to or bound by, and the properties of Famous Al’s are
not subject to any contract, agreement, other commitment or instrument; any
charter or other corporate restriction; or any judgment, order, writ,
injunction, decree, or award; and
(c) Famous
Al’s is not a party to any oral or written (i) contract for the employment of
any officer or employee; (ii) profit sharing, bonus, deferred compensation,
stock option, severance pay, pension benefit or retirement plan, (iii)
agreement, contract, or indenture relating to the borrowing of money, (iv)
guaranty of any obligation, (vi) collective bargaining agreement; or (vii)
agreement with any present or former officer or director of Famous
Al’s.
Section
2.10 No Conflict With Other
Instruments. The
execution of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in the breach of any term or
provision of, constitute a default under, or terminate, accelerate or modify the
terms of, any indenture, mortgage, deed of trust, or other material agreement or
instrument to which Famous Al’s is a party or to which any of its assets,
properties or operations are subject.
Section
2.11 Compliance With Laws and
Regulations. To the
best of its knowledge, Famous Al’s has complied with all applicable statutes and
regulations of any federal, state, or other applicable governmental entity or
agency thereof. This compliance includes, but is not limited to, the
filing of all reports to date with federal and state securities
authorities.
Section
2.12 Approval of
Agreement. The
Board of Directors of Famous Al’s has authorized the execution and delivery of
this Agreement by Famous Al’s and has approved this Agreement and the
transactions contemplated hereby.
Section
2.13 Material Transactions or
Affiliations. Except
as disclosed herein and in the Famous Al’s Schedules, there exists no contract,
agreement or arrangement between Famous Al’s and any predecessor and any person
who was at the time of such contract, agreement or arrangement an officer,
director, or person owning of record or known by Famous Al’s to own
beneficially, 5% or more of the issued and outstanding common shares of Famous
Al’s and which is to be performed in whole or in part after the date hereof or
was entered into not more than three years prior to the date
hereof. Neither any officer, director, nor 5% Shareholders of Famous
Al’s has, or has had since inception of Famous Al’s, any known interest, direct
or indirect, in any such transaction with Famous Al’s which was material to the
business of Famous Al’s. Famous Al’s has no commitment, whether written or oral,
to lend any funds to, borrow any money from, or enter into any other transaction
with, any such affiliated person.
Section
2.14 Famous Al’s
Schedules. Famous
Al’s has delivered to ASEC the following schedules, which are collectively
referred to as the “Famous Al’s Schedules” and which consist of separate
schedules, which are dated the date of this Agreement, all certified by the
chief executive officer of Famous Al’s to be complete, true, and
accurate in all material respects as of the date of this Agreement.
B-6
EXHIBIT
A
(a) a
schedule containing complete and accurate copies of the certificate of
incorporation and Articles of Famous Al’s as in effect as of the date of this
Agreement;
(b) a
schedule containing the financial statements of Famous Al’s identified in
paragraph 2.04(a) and (b);
(c) a
schedule setting forth a description of any material adverse change in the
business, operations, property, inventory, assets, or condition of Famous Al’s
since June 30, 2010, required to be provided pursuant to section 2.07 hereof;
and
(d) a
schedule setting forth any other information, together with any required copies
of documents, required to be disclosed in the Famous Al’s Schedules by Sections
2.01 through 2.13.
Famous
Al’s shall cause the Famous Al Schedules and the instruments and data delivered
to ASEC hereunder to be promptly updated after the date hereof up to and
including the Closing Date.
. Set
forth in the Famous Al’s Schedules is a true and complete list of (a) all
accounts with banks, money market mutual funds or securities or other financial
institutions maintained by Famous Al’s within the past twelve (12) months, the
account numbers thereof, and all persons authorized to sign or act on behalf of
Famous Al’s, (b) all safe deposit boxes and other similar custodial arrangements
maintained by Famous Al’s within the past twelve (12) months, (c) the check
ledger for the last 12 months, and (d) the names of all persons holding powers
of attorney from Famous Al’s or who are otherwise authorized to act on behalf of
Famous Al’s with respect to any matter, other than its officers and directors,
and a summary of the terms of such powers or authorizations.
This
Agreement and all agreements and other documents executed by Famous Al’s in
connection herewith constitute the valid and binding obligation of Famous Al’s,
enforceable in accordance with its or their terms, except as may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and subject to the qualification that
the availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefore may be brought.
2.15 Financial
Statements.
(a)
Famous Al’s has made available to ASEC a correct and complete copy, or there has
been available on ▇▇▇▇▇, copies of each report, registration statement and
definitive proxy statement filed by Famous Al’s with the SEC for the 36 months
prior to the date of this Agreement (the “Famous Al’s SEC
Reports”), which, to Famous Al’s knowledge, are all the forms, reports
and documents filed by Famous Al’s with the SEC for the 36 months or applicable
period prior to the date of this Agreement. As of their respective dates, to
Famous Al’s knowledge, the Famous Al’s SEC Reports: (i) were prepared in
accordance and complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the SEC thereunder applicable to such Famous Al’s SEC Reports,
and (ii) did not at the time they were filed (and if amended or superseded by a
filing prior to the date of this Agreement then on the date of such filing and
as so amended or superceded) contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
B-7
EXHIBIT
A
(b)
Each set of financial statements (including, in each case, any related notes
thereto) contained in the Famous Al’s SEC Reports comply as to form in all
material respects with the published rules and regulations of the SEC with
respect thereto, were prepared in accordance with U.S. GAAP applied on a
consistent basis throughout the periods involved (except as may be indicated in
the notes thereto or, in the case of unaudited statements, do not contain
footnotes as permitted by Form 10-Q promulgated under the Exchange Act) and each
fairly presents in all material respects the financial position of Famous Al’s
at the respective dates thereof and the results of its operations and cash flows
for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal adjustments which were not or are not
expected to have a Material Adverse Effect on Famous Al’s taken as a
whole.
Section
2.16 Over-the-Counter Bulletin
Board Quotation. Famous
Al’s Common Stock is quoted on the Over-the-Counter Bulletin Board (“OTCBB”). There is no
action or proceeding pending or, to Famous Al’s knowledge, threatened against
Famous Al’s by The Financial Industry Regulatory Authority, Inc. (“FINRA”), with
respect to any intention by such entities to prohibit or terminate the quotation
of Famous Al’s Common Stock on the OTCBB.
Section
2.17 Exchange Act
Compliance. Famous
Al’s is in compliance with, and current in, all of the reporting, filing and
other requirements under the Exchange Act, the common shares have been
registered under Section 12(g) of the Exchange Act, and Famous Al’s is in
compliance with all of the requirements under, and imposed by, Section 12(g) of
the Exchange Act, except where a failure to so comply is not reasonably likely
to have a Material Adverse Effect on Famous Al’s.
Section
2.18 Title to
Property. Famous Al’s does not own or lease any real property
or personal property. There are no options or other contracts under
which Famous Al’s has a right or obligation to acquire or lease any interest in
real property or personal property.
Section
2.19 Intellectual
Property. Famous Al’s does not own, license or otherwise have
any right, title or interest in any intellectual property.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF
THE
ASEC SHAREHOLDERS
The ASEC Shareholders hereby represents
and warrants, severally and solely, to Famous Al’s as follows.
Section
3.01 Good
Title. Each of the ASEC
Shareholders is the record and beneficial owner, and has good title to his ASEC
common shares, with the right and authority to sell and deliver such ASEC common
shares, free and clear of all liens, claims, charges, encumbrances, pledges,
mortgages, security interests, options, rights to acquire, proxies, voting
trusts or similar agreements, restrictions on transfer or adverse claims of any
nature whatsoever. Upon delivery of any certificate or certificates
duly assigned, representing the same as herein contemplated and/or upon
registering of Famous Al’s as the new owner of such ASEC common shares in the
share register of ASEC, Famous Al’s will receive good title to such ASEC common
shares, free and clear of all Liens.
Section
3.02 Power and Authority.
Each of the ASEC Shareholders has the legal power, capacity and authority to
execute and deliver this Agreement to consummate the transactions contemplated
by this Agreement, and to perform his obligations under this
Agreement. This Agreement constitutes a legal, valid and binding
obligation of the ASEC Shareholders, enforceable against the ASEC Shareholders
in accordance with the terms hereof.
B-8
EXHIBIT
A
Section
3.03 No
Conflicts. The execution and delivery of this Agreement by the
ASEC Shareholders and the performance by the ASEC Shareholders of their
obligations hereunder in accordance with the terms hereof: (a) will not require
the consent of any third party or governmental entity under any laws; (b) will
not violate any laws applicable to the ASEC Shareholders and (c) will not
violate or breach any contractual obligation to which the ASEC Shareholders are
a party.
Section
3.04 Finder’s
Fee. Each of the ASEC Shareholders represents and warrants
that it has not created any obligation for any finder’s, investment banker’s or
broker’s fee in connection with the Exchange.
Section
3.05 Purchase Entirely for Own
Account. The Exchange Shares (as defined in Section 4.01 herein) proposed
to be acquired by each of the ASEC Shareholders hereunder will be acquired for
investment for its own account, and not with a view to the resale or
distribution of any part thereof, and each of the ASEC Shareholders has no
present intention of selling or otherwise distributing the Exchange Shares,
except in compliance with applicable securities laws.
Section
3.06 Acquisition of Exchange
Shares for Investment.
(a) Each
ASEC Shareholder is acquiring the Exchange Shares for investment for ASEC
Shareholder’s own account and not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof, and each ASEC Shareholder has no
present intention of selling, granting any participation in, or otherwise
distributing the same. Each ASEC Shareholder further represents that
he or she does not have any contract, undertaking, agreement or arrangement with
any person to sell, transfer or grant participation to such person or to any
third person, with respect to any of the Exchange Shares.
(b) Each
ASEC Shareholder represents and warrants that he or she: (i) can bear the
economic risk of his respective investments, and (ii) possesses such knowledge
and experience in financial and business matters that he is capable of
evaluating the merits and risks of the investment in Famous Al ‘s and its
securities.
(c) Each
ASEC Shareholder who is not a “U.S. Person” as defined in Rule 902(k) of
Regulation S of the Securities Act (“Regulation S”) (each
a “Non-U.S.
Shareholder”) understands that the Exchange Shares are not registered
under the Securities Act and that the issuance thereof to such ASEC Shareholder
is intended to be exempt from registration under the Securities Act pursuant to
Regulation S. Each Non-U.S. Shareholder has no intention of becoming
a U.S. Person. At the time of the origination of contact concerning
this Agreement and the date of the execution and delivery of this Agreement,
each Non-U.S. Shareholder was outside of the United States. Each
certificate representing the Exchange Shares shall be endorsed with the
following legends, in addition to any other legend required to be placed thereon
by applicable federal or state securities laws:
“THE
SECURITIES ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED
IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“SECURITIES ACT”))
AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION S PROMULGATED
UNDER THE SECURITIES ACT.”
“TRANSFER
OF THESE SECURITIES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO
AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT
BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”
B-9
EXHIBIT A
(d) Each
ASEC Shareholder who is a “U.S. Person” as defined in Rule 902(k) of Regulation
S (each a “U.S.
Shareholder”) understands that the Exchange Shares are not registered
under the Securities Act and that the issuance thereof to such ASEC Shareholder
is intended to be exempt from registration under the Securities Act pursuant to
Regulation D promulgated thereunder (“Regulation
D”). Each U.S. Shareholder represents and warrants that he is
an “accredited investor” as such term is defined in Rule 501 of Regulation D or,
if not an accredited investor, that such ASEC Shareholder otherwise meets the
suitability requirements of Regulation D and Section 4(2) of the Securities Act
(“Section
4(2)”). Each
U.S. Shareholder agrees to provide documentation to Famous Al’s prior to Closing
as may be requested by Famous Al’s to confirm compliance with Regulation D
and/or Section 4(2), including, without limitation, a letter of investment
intent or similar representation letter and a completed investor
questionnaire. Each
certificate representing the Exchange Shares issued to such ASEC Shareholder
shall be endorsed with the following legends, in addition to any other legend
required to be placed thereon by applicable federal or state securities
laws:
“THIS
SECURITY HAS BEEN ACQUIRED FOR INVESTMENT AND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (“SECURITIES ACT”), OR APPLICABLE STATE
SECURITIES OR “BLUE SKY” LAWS.”
“TRANSFER
OF THESE SECURITIES IS PROHIBITED UNLESS A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT WITH RESPECT TO SUCH SECURITY SHALL THEN BE IN EFFECT AND SUCH
TRANSFER HAS BEEN QUALIFIED UNDER ALL APPLICABLE STATE SECURITIES OR “BLUE SKY”
LAWS, OR AN EXEMPTION THEREFROM SHALL BE AVAILABLE UNDER THE ACT AND SUCH
LAWS.”
(e) Each
ASEC Shareholder acknowledges that neither the SEC, nor the securities
regulatory body of any state or other jurisdiction, has received, considered or
passed upon the accuracy or adequacy of the information and representations made
in this Agreement.
(f)
Each ASEC Shareholder acknowledges that he has
carefully reviewed such information as he has deemed necessary to evaluate an
investment in Famous Al’s and its securities, and with respect to each U.S.
Shareholder, that all information required to be disclosed to such ASEC
Shareholder under Regulation D has been furnished to such ASEC Shareholder by
Famous Al’s. To the full satisfaction of each ASEC Shareholder, he
has been furnished all materials that he has requested relating to Famous Al’s
and the issuance of the Exchange Shares hereunder, and each ASEC Shareholder has
been afforded the opportunity to ask questions of Famous Al’s representatives to
obtain any information necessary to verify the accuracy of any representations
or information made or given to the ASEC
Shareholders. Notwithstanding the foregoing, nothing herein shall
derogate from or otherwise modify the representations and warranties of Famous
Al’s set forth in this Agreement, on which each of the ASEC Shareholders have
relied in making an exchange of his ASEC shares for the Exchange
Shares.
(g) Each
ASEC Shareholder understands that the Exchange Shares may not be sold,
transferred, or otherwise disposed of without registration under the Securities
Act or an exemption therefrom, and that in the absence of an effective
registration statement covering the Exchange Shares or any available exemption
from registration under the Securities Act, the Exchange Shares may have to be
held indefinitely. Each ASEC Shareholder further acknowledges that
the Exchange Shares may not be sold pursuant to Rule 144 promulgated under the
Securities Act unless all of the conditions of Rule 144 are satisfied
(including, without limitation, Famous Al’s compliance with the reporting
requirements under the Securities Exchange Act of 1934, as amended (“Exchange
Act”)).
B-10
EXHIBIT
A
(h) The
ASEC Shareholder agrees that, notwithstanding anything contained herein to the
contrary, the warranties, representations, agreements and covenants of the ASEC
Shareholder under this Section 3.06 shall survive the Closing.
Section
3.07 Additional Legend;
Consent. Additionally, the Exchange Shares will bear any legend required
by the “blue sky” laws of any state to the extent such laws are applicable to
the securities represented by the certificate so legended. Each of the ASEC
Shareholders consents to Famous Al’s making a notation on its records or giving
instructions to any transfer agent of Exchange Shares in order to implement the
restrictions on transfer of the Exchange Shares.
ARTICLE
IV
PLAN
OF EXCHANGE
Section
4.01 The
Exchange. On
the terms and subject to the conditions set forth in this Agreement, on the
Closing Date, each of the ASEC Shareholders who has elected to accept the
exchange offer described herein by executing this Agreement, shall assign,
transfer and deliver, free and clear of all liens, pledges, encumbrances,
charges, restrictions or known claims of any kind, nature, or description, the
number of shares of ASEC set forth on the ASEC Schedules attached hereto,
constituting all of the shares of ASEC held by such shareholder; the objective
of such Exchange being the acquisition by Famous Al’s of not less than 100% of
the issued and outstanding shares of ASEC. In exchange for the
transfer of such securities by the ASEC Shareholders, Famous Al’s shall issue to
the ASEC Shareholders, his affiliates or assigns, a total of 22,000,000 shares
pursuant to Table
1 attached hereto, representing approximately 99% of the total common
shares of Famous Al’s after issuance, for all of the outstanding shares of ASEC
held by the ASEC Shareholders (the “Exchange Shares”). At
the Closing Date, each of the ASEC Shareholders shall, on surrender of his
certificate or certificates representing his ASEC shares to ASEC or its
registrar or transfer agent, be entitled to receive a certificate or
certificates evidencing his proportionate interest in the Exchange
Shares.
Upon
consummation of the transaction contemplated herein, all of the issued and
outstanding shares of ASEC shall be held by Famous Al’s. Upon
consummation of the transaction contemplated herein there shall be approximately
25,540,293 Famous Al’s common shares issued and outstanding.
Section
4.02 Exchange of Options.
Effective as of the Closing Date, the holders (individually, the “Holder,” and
collectively the “Holders”) of the
outstanding options of ASEC (the “Options”), as set forth on Schedule 4.02 hereto,
as well as the Options issuable pursuant to deferred compensation agreements,
upon the exercise or conversion of the Options, shall have the right to convert
such Options into the kind and amount of Famous Al’s common stock and other
securities and property which such Holder would have owned or have been entitled
to receive prior to the Closing of the share exchange transaction contemplated
in this Agreement. For example, the Holder will be entitled to
receive two (2) shares of Famous Al’s common stock for each share of ASEC common
stock underlying the option.
Section
4.03 Cancellation of Certain
Shares of Famous Al’s Common Stock. Simultaneous
with the issuance of the Exchange Shares, ▇▇▇▇ ▇▇▇▇, the majority shareholder of
Famous Al’s, will cancel a total number of 25,000,000 of Famous Al’s common
shares for additional consideration of $25,000
from ASEC pursuant to a Stock Cancellation
Agreement. Additionally, as consideration for
extinguishing all outstanding liabilities of Famous Al’s as of the Closing Date,
Famous Al’s shall transfer its restaurant
franchising rights to Famous Uncle Al’s Hot Dogs & Grille,
LLC, a Nevada
corporation, within thirty
days of the Closing
B-11
EXHIBIT
A
Section
4.04 Closing. The
closing (the “Closing” or the
“Closing Date”)
of the transactions contemplated by this Agreement shall occur following the
payment of the outstanding liabilities of Famous Al’s, which may be paid from
the proceeds at Closing, and upon the exchange of the shares of Famous Al’s and
ASEC as described in Section 4.01 herein. Such Closing shall take place at a
mutually agreeable time and place, and be conditioned upon all of the conditions
of the Offering being met.
Section
4.05 Closing
Events. At the
Closing, Famous Al’s, ASEC and the ASEC Shareholders shall execute, acknowledge,
and deliver (or shall ensure to be executed, acknowledged, and delivered), any
and all certificates, opinions, financial statements, schedules, agreements,
resolutions, rulings or other instruments required by this Agreement to be so
delivered at or prior to the Closing, together with such other items as may be
reasonably requested by the parties hereto and their respective legal counsel in
order to effectuate or evidence the transactions contemplated
hereby.
Section
4.06 Termination. This
Agreement may be terminated by the Board of Directors of ASEC or Famous Al’s
only in the event that Famous Al’s or ASEC do not meet the conditions precedent
set forth in Articles VI and VII. If this Agreement is terminated
pursuant to this section, this Agreement shall be of no further force or effect,
and no obligation, right or liability shall arise hereunder.
ARTICLE
V
SPECIAL
COVENANTS
Section
5.01 Access to Properties and
Records. Famous
Al’s and ASEC will each afford to the officers and authorized
representatives of the other full access to the properties, books and records of
Famous Al’s or ASEC , as the case may be, in order that each may have a full
opportunity to make such reasonable investigation as it shall desire to make of
the affairs of the other, and each will furnish the other with such additional
financial and operating data and other information as to the business and
properties of Famous Al’s or ASEC, as the case may be, as the other shall from
time to time reasonably request. Without limiting the foregoing, as
soon as practicable after the end of each fiscal quarter (and in any event
through the last fiscal quarter prior to the Closing Date), each party shall
provide the other with quarterly internally prepared and unaudited financial
statements.
Section
5.02 Delivery of Books and
Records. At the
Closing, Famous Al’s shall deliver to ASEC, the originals of the corporate
minute books, books of account, contracts, records, and all other books or
documents of Famous Al’s which is now in the possession of Famous Al’s or its
representatives.
Section
5.03 Third Party Consents and
Certificates. Famous
Al’s and ASEC agree to cooperate with each other in order to obtain any required
third party consents to this Agreement and the transactions herein
contemplated.
Section
5.04 Designation of Directors and
Officer. At
the Closing, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall be appointed as
directors of Famous Al’s, and the existing officer and directors of Famous Al’s,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇, after the signing of this Agreement, shall
tender their resignation of their positions held with Famous Al’s effective
immediately. In addition, upon the signing of this Agreement, Famous
Al’s shall immediately appoint ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ as Chief Executive Officer and
as a Director, ▇▇▇▇▇▇ ▇▇▇▇ as Secretary and General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as
President and Director and ▇▇▇▇▇ ▇▇▇▇▇▇▇ as the Chief Financial Officer of
Famous Al’s.
B-12
EXHIBIT
A
Section
5.05 Indemnification. Famous
Al’s hereby agrees to indemnify ASEC and each of the officers, agents, and
directors of ASEC and the ASEC Shareholders as of the date of execution of this
Agreement against any Loss to which it or they may become subject arising out of
or based on any inaccuracy appearing in or misrepresentation made under Article
II of this Agreement. The indemnification provided for in this
paragraph shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement for one year following the
Closing.
Section
5.06 The Acquisition of Famous
Al’s Common Shares. Famous
Al’s and ASEC understand and agree that the consummation of this Agreement
including the issuance of the Famous Al’s common shares to the ASEC Shareholders
in exchange for the ASEC Shares as contemplated hereby constitutes the offer and
sale of securities under the Securities Act and applicable state
statutes. Famous Al’s and ASEC agree that such transactions shall be
consummated in reliance on exemptions from the registration and prospectus
delivery requirements of such statutes, which depend, among other items, on the
circumstances under which such securities are acquired.
(a) In
order to provide documentation for reliance upon the exemptions from the
registration and prospectus delivery requirements for such transactions, ASEC
Shareholders shall execute and deliver to Famous Al’s a Suitability Letter and
an Investment Representation Letter in substantially the same form as that
attached hereto as Exhibit A and Exhibit B,
respectively.
(b) In
connection with the transaction contemplated by this Agreement, Famous Al’s and
ASEC shall each file, with the assistance of the other and their respective
legal counsel, such notices, applications, reports, or other instruments as may
be deemed by them to be necessary or appropriate in an effort to document
reliance on such exemptions, and the appropriate regulatory authority in the
states where the shareholders of ASEC reside unless an exemption requiring no
filing is available in such jurisdictions, all to the extent and in the manner
as may be deemed by such parties to be appropriate.
(c) In
order to more fully document reliance on the exemptions as provided herein,
ASEC, the ASEC Shareholders, and Famous Al’s shall execute and deliver to the
other, at or prior to the Closing, such further letters of representation,
acknowledgment, suitability, or the like as ASEC or Famous Al’s and their
respective counsel may reasonably request in connection with reliance on
exemptions from registration under such securities laws.
(d) The
ASEC Shareholders acknowledges that the basis for relying on exemptions from
registration or qualifications are factual, depending on the conduct of the
various parties, and that no legal opinion or other assurance will be required
or given to the effect that the transactions contemplated hereby are in fact
exempt from registration or qualification.
Section
5.07 Sales of Securities Under
Rule 144, If Applicable.
(a) Famous
Al’s will use its best efforts to at all times satisfy the current public
information requirements of Rule 144 promulgated under the Securities Act so
that its shareholders can sell restricted securities that have been held for one
year or more or such other restricted period as required by Rule 144 as it is
from time to time amended.
(b) Upon
being informed in writing by any person holding restricted stock of Famous Al’s
that such person intends to sell any shares under rule 144 promulgated under the
Securities Act (including any rule adopted in substitution or replacement
thereof), Famous Al’s will certify in writing to such person that it is
compliance with Rule 144 current public information requirement to enable such
person to sell such person’s restricted stock under Rule 144, as may be
applicable under the circumstances.
B-13
EXHIBIT
A
(c) If
any certificate representing any such restricted stock is presented to Famous
Al’s transfer agent for registration or transfer in connection with any sales
theretofore made under Rule 144, provided such certificate is duly endorsed for
transfer by the appropriate person(s) or accompanied by a separate stock power
duly executed by the appropriate person(s) in each case with reasonable
assurances that such endorsements are genuine and effective, and is accompanied
by a legal opinion that such transfer has complied with the requirements of Rule
144, as the case may be, Famous Al’s will promptly instruct its transfer agent
to register such transfer and to issue one or more new certificates representing
such shares to the transferee and, if appropriate under the provisions of Rule
144, as the case may be, free of any stop transfer order or restrictive
legend.
Section
5.08 Payment of
Liabilities. Recognizing
the need to extinguish all existing liabilities of Famous Al’s prior to the
Exchange, ASEC has indicated it will not enter into this Agreement unless Famous
Al’s has arranged for the payment and discharge of all of Famous Al’s
liabilities, including all of Famous Al’s accounts payable and any outstanding
legal fees incurred prior to the Closing Date. Accordingly, Famous
Al’s has agreed to arrange for the payment and discharge of all such
liabilities.
Section
5.09 Assistance with Post-Closing
SEC Reports and Inquiries. Upon the
reasonable request of ASEC, after the Closing Date, ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇▇▇ shall use their reasonable best efforts to provide such information
available to it, including information, filings, reports, financial statements
or other circumstances of Famous Al’s occurring, reported or filed prior to the
Closing, as may be necessary or required by Famous Al’s for the preparation of
the reports that Famous Al’s is required to file after Closing with the SEC to
remain in compliance and current with its reporting requirements under the
Exchange Act, or filings required to address and resolve matters as may relate
to the period prior to Closing and any SEC comments relating thereto or any SEC
inquiry thereof.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF FAMOUS AL’S
The
obligations of Famous Al’s under this Agreement are subject to the satisfaction,
at or before the Closing Date, of the following conditions:
Section
6.01 Accuracy of Representations
and Performance of Covenants. The
representations and warranties made by ASEC and ASEC Shareholders in this
Agreement were true when made and shall be true at the Closing Date with the
same force and effect as if such representations and warranties were made at and
as of the Closing Date (except for changes therein permitted by this
Agreement). ASEC shall have performed or complied with all covenants
and conditions required by this Agreement to be performed or complied with by
ASEC prior to or at the Closing. Famous Al’s shall be furnished with
a certificate, signed by a duly authorized executive officer of ASEC and dated
the Closing Date, to the foregoing effect.
Section
6.02 Officer’s
Certificate. Famous
Al’s shall have been furnished with a certificate dated the Closing Date and
signed by a duly authorized officer of ASEC to the effect that no litigation,
proceeding, investigation, or inquiry is pending, or to the best knowledge of
ASEC threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement, or, to the
extent not disclosed in the ASEC Schedules, by or against ASEC, which might
result in any material adverse change in any of the assets, properties,
business, or operations of ASEC
Section
6.03 Good
Standing. Famous
Al’s shall have received a certificate of good standing from the Nevada
Secretary of State dated as of a date within ten days prior to the Closing Date,
certifying that ASEC is in good standing as a company in the State of
Nevada.
B-14
EXHIBIT
A
Section
6.04 Approval by ASEC
Shareholders. The
Exchange shall have been approved by the holders of not less than fifty and one
tenths percent (50.01%) of the shares, including voting power, of ASEC, unless a
lesser number is agreed to by Famous Al’s.
Section
6.05 No Governmental
Prohibition. No
order, statute, rule, regulation, executive order, injunction, stay, decree,
judgment or restraining order shall have been enacted, entered, promulgated or
enforced by any court or governmental or regulatory authority or instrumentality
which prohibits the consummation of the transactions contemplated
hereby.
Section
6.06 Consents. All
consents, approvals, waivers or amendments pursuant to all contracts, licenses,
permits, trademarks and other intangibles in connection with the transactions
contemplated herein, or for the continued operation of ASEC after the Closing
Date on the basis as presently operated shall have been obtained.
Section
6.07 Other
Items.
(a) Famous
Al’s shall have received a list containing the name, address, and number of
shares held by the ASEC Shareholders as of the date of Closing, certified by an
executive officer of ASEC as being true, complete and accurate; and
(b) Famous
Al’s shall have received such further opinions, documents, certificates or
instruments relating to the transactions contemplated hereby as Famous Al’s may
reasonably request.
ARTICLE
VII
CONDITIONS
PRECEDENT TO OBLIGATIONS OF ASEC
AND
THE ASEC SHAREHOLDERS
The
obligations of ASEC and the ASEC Shareholders under this Agreement are subject
to the satisfaction, at or before the Closing Date, of the following
conditions:
Section
7.01 Accuracy of Representations
and Performance of Covenants. The
representations and warranties made by Famous Al’s in this Agreement were true
when made and shall be true as of the Closing Date (except for changes therein
permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing
Date. Additionally, Famous Al’s shall have performed and complied
with all covenants and conditions required by this Agreement to be performed or
complied with by Famous Al’s.
Section
7.02 Closing
Certificate. ASEC
shall have been furnished with certificates dated the Closing Date and signed by
duly authorized executive officers of Famous Al’s, to the effect that no
litigation, proceeding, investigation or inquiry is pending, or to the best
knowledge of Famous Al’s threatened, which might result in an action to enjoin
or prevent the consummation of the transactions contemplated by this Agreement
or, to the extent not disclosed in the Famous Al’s Schedules, by or against
Famous Al’s, which might result in any material adverse change in any of the
assets, properties or operations of Famous Al’s.
Section
7.03 Officer’s
Certificate. ASEC shall have been furnished with certificates dated the
Closing Date and signed by duly authorized executive officers of Famous Al’s,
certifying that there are no existing liabilities as of the Closing Date and
that each representations and warranties of Famous Al’s contained in this
Agreement (i) shall have been true and correct as of the date of this Agreement
and (ii) shall be true and correct on and as of the Closing Date with the same
force and effect as if made on and as of the Closing.
B-15
EXHIBIT
A
Section
7.04 Legal Opinion. ASEC
shall have been furnished with an opinion dated the Closing Date, from the legal
counsel of Famous Al’s, covering such matters as it relates to this Agreement
and the issuance of the Famous Al’s common shares and other matters reasonably
requested by ASEC.
Section
7.05 Good
Standing. ASEC shall have received a certificate of good
standing from the Delaware Secretary of State or other appropriate office, dated
as of a date within ten days prior to the Closing Date certifying that Famous
Al’s is in good standing as a company in the State of Delaware and has filed all
tax returns required to have been filed by it to date and has paid all taxes
reported as due thereon.
Section
7.06 No Governmental
Prohibition. No
order, statute, rule, regulation, executive order, injunction, stay, decree,
judgment or restraining order shall have been enacted, entered, promulgated or
enforced by any court or governmental or regulatory authority or instrumentality
which prohibits the consummation of the transactions contemplated
hereby.
Section
7.07 Consents. All
consents, approvals, waivers or amendments pursuant to all contracts, licenses,
permits, trademarks and other intangibles in connection with the transactions
contemplated herein, or for the continued operation of Famous Al’s after the
Closing Date on the basis as presently operated shall have been
obtained.
Section
7.08 Shareholder
Report. Upon issuance of the Exchange Shares, ASEC shall
receive a shareholder’s report reflective of all Famous Al’s shareholders which
does not exceed 25,540,293 issued and outstanding common shares of Famous Al’s
as of the Closing Date.
Section
7.09 SEC
Filings. Prior to the Closing Date, Famous Al’s shall have
filed its quarterly report on Form 10Q for the period ending June 30, 2010 and
provided the books and records of Famous Al’s in order to complete the quarterly
report for the period ending September 30, 2010.
Section
7.10 Other
Items. ASEC
shall have received further opinions, documents, certificates, or instruments
relating to the transactions contemplated hereby as ASEC may reasonably
request.
ARTICLE
VIII
MISCELLANEOUS
Section
8.01 Brokers. Famous
Al’s and ASEC agree that, except as set out on Schedule 7.01 attached hereto,
there were no finders or brokers involved in bringing the parties together or
who were instrumental in the negotiation, execution or consummation of this
Agreement. Famous Al’s and ASEC each agree to indemnify the other
against any claim by any third person other than those described above for any
commission, brokerage, or finder’s fee arising from the transactions
contemplated hereby based on any alleged agreement or understanding between the
indemnifying party and such third person, whether express or implied from the
actions of the indemnifying party.
Section
8.02 Governing
Law. This
Agreement shall be governed by, enforced, and construed under and in accordance
with the laws of the United States of America and, with respect to the matters
of state law, with the laws of the State of Delaware. Venue for all
matters shall be in Tempe, Arizona, without giving effect to principles of
conflicts of law thereunder. Each of the parties (a) irrevocably
consents and agrees that any legal or equitable action or proceedings arising
under or in connection with this Agreement shall be brought exclusively in the
federal courts of the United States. By execution and delivery of this
Agreement, each party hereto irrevocably submits to and accepts, with respect to
any such action or proceeding, generally and unconditionally, the jurisdiction
of the aforesaid court, and irrevocably waives any and all rights such party may
now or hereafter have to object to such jurisdiction.
B-16
EXHIBIT
A
Section
8.03 Notices. Any
notice or other communications required or permitted hereunder
shall be in writing and shall be sufficiently given if personally
delivered to it or sent by telecopy, overnight courier or registered mail or
certified mail, postage prepaid, addressed as follows:
|
|
If
to ASEC, to:
|
American
Standard Energy, Corp.
|
|
|
Attn:
Chief Executive Officer
|
|
|
▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|
|
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
With
copies to (which shall not constitute notice):
|
|
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
|
|
|
▇▇▇▇▇▇
& ▇▇▇▇▇▇, LLP
|
|
|
▇▇▇
▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
|
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If
to Famous Al’s, to:
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Famous
Uncle Al’s Hot Dogs & Grille,
Inc.
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Attn:
Chief Executive Officer
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or such
other addresses as shall be furnished in writing by any party in the manner for
giving notices hereunder, and any such notice or communication shall be deemed
to have been given (i) upon receipt, if personally delivered, (ii) on the day
after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three (3)
days after mailing, if sent by registered or certified mail.
Section
8.04 Attorney’s
Fees. In the
event that either party institutes any action or suit to enforce this Agreement
or to secure relief from any default hereunder or breach hereof, the prevailing
party shall be reimbursed by the losing party for all costs, including
reasonable attorney’s fees, incurred in connection therewith and in enforcing or
collecting any judgment rendered therein.
Section
8.05 Confidentiality. Each
party hereto agrees with the other that, unless and until the transactions
contemplated by this Agreement have been consummated, it and its representatives
will hold in strict confidence all data and information obtained with respect to
another party or any subsidiary thereof from any representative, officer,
director or employee, or from any books or records or from personal inspection,
of such other party, and shall not use such data or information or disclose the
same to others, except (i) to the extent such data or information is published,
is a matter of public knowledge, or is required by law to be published; or (ii)
to the extent that such data or information must be used or disclosed in order
to consummate the transactions contemplated by this Agreement. In the
event of the termination of this Agreement, each party shall return to the other
party all documents and other materials obtained by it or on its behalf and
shall destroy all copies, digests, work papers, abstracts or other materials
relating thereto, and each party will continue to comply with the
confidentiality provisions set forth herein.
B-17
EXHIBIT
A
Section
8.06 Public Announcements and
Filings. Unless
required by applicable law or regulatory authority, none of the parties will
issue any report, statement or press release to the general public, to the
trade, to the general trade or trade press, or to any third party (other than
its advisors and representatives in connection with the transactions
contemplated hereby) or file any document, relating to this Agreement and the
transactions contemplated hereby, except as may be mutually agreed by the
parties. Copies of any such filings, public announcements or
disclosures, including any announcements or disclosures mandated by law or
regulatory authorities, shall be delivered to each party at least one (1)
business day prior to the release thereof.
Section
8.07 Schedules;
Knowledge. Each
party is presumed to have full knowledge of all information set forth in the
other party’s schedules delivered pursuant to this Agreement.
Section
8.08 Third Party
Beneficiaries. This
contract is strictly between Famous Al’s and ASEC, and, except as specifically
provided, no director, officer, stockholder (other than the ASEC Shareholders),
employee, agent, independent contractor or any other person or entity shall be
deemed to be a third party beneficiary of this Agreement.
Section
8.09 Expenses. Subject
to Article VI and VII above, whether or not the Exchange is consummated, each of
Famous Al’s and ASEC will bear their own respective expenses, including legal,
accounting and professional fees, incurred in connection with the Exchange or
any of the other transactions contemplated hereby.
Section
8.10 Entire
Agreement. This
Agreement represents the entire agreement between the parties relating to the
subject matter thereof and supersedes all prior agreements, understandings and
negotiations, written or oral, with respect to such subject matter.
Section
8.11 Survival;
Termination. The
representations, warranties, and covenants of the respective parties shall
survive the Closing Date and the consummation of the transactions herein
contemplated for a period of two years.
Section
8.12 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument. A signed copy of this Agreement delivered by facsimile, e-mail or
other means of electronic transmission shall be deemed to have the same legal
effect as delivery of an original signed copy of this Agreement.
Section
8.13 Amendment or
Waiver. Every
right and remedy provided herein shall be cumulative with every other right and
remedy, whether conferred herein, at law, or in equity, and may be enforced
concurrently herewith, and no waiver by any party of the performance of any
obligation by the other shall be construed as a waiver of the same or any other
default then, theretofore, or thereafter occurring or existing. At
any time prior to the Closing Date, this Agreement may by amended by a writing
signed by all parties hereto, with respect to any of the terms contained herein,
and any term or condition of this Agreement may be waived or the time for
performance may be extended by a writing signed by the party or parties for
whose benefit the provision is intended.
Section
8.14 Best
Efforts. Subject
to the terms and conditions herein provided, each party shall use its best
efforts to perform or fulfill all conditions and obligations to be performed or
fulfilled by it under this Agreement so that the transactions contemplated
hereby shall be consummated as soon as practicable. Each party also
agrees that it shall use its best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
this Agreement and the transactions contemplated herein.
B-18
EXHIBIT
A
B-19
EXHIBIT
A
IN WITNESS WHEREOF, the
corporate parties hereto have caused this Agreement to be executed by their
respective officers, hereunto duly authorized, as of the date first-above
written.
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FAMOUS
UNCLE AL’S HOT DOGS & GRILLE,
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INC.
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By:
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/s/▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Chief
Executive Officer
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AMERICAN
STANDARD ENERGY, CORP.
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By:
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/s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: Chief
Executive Officer
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ASEC
Shareholders:
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By:
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By:
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By:
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By:
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By:
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By:
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B-20
EXHIBIT
A
Table
1: Exchange Shares to be
Issued
B-21