Merger and Reorganization Agreement entered into the 28th day of February 2007, by and among American Ethanol, Inc., a Nevada Corporation, Clifford Bradley and Bob Kearns, and Renewable Technology Corporation, a Delaware Corporation

(1) All shares of RTC Stock issued and outstanding immediately prior to the Effective Time, other than any shares of RTC Stock to be canceled pursuant to Section 3(c)(2), and the holders shall have right to receive the Merger Consideration (as defined below) in accordance with the terms hereof.  All such shares of RTC Stock shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each certificate previously evidencing any such shares shall thereafter represent the right to receive, upon the surrender of such certificate in accordance with the provisions of Article 4 hereof, certificates evidencing such number of shares of AE Stock, respectively, into which such shares of RTC Stock were converted.  No fractional shares of AE Stock will be issued in the Merger.  The holders of such certificates previously evidencing shares of RTC Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of RTC Stock, except as expressly otherwise provided herein or by law; and

(2) Any shares of RTC capital stock held in the treasury of RTC immediately prior to the Effective Time shall automatically be canceled and extinguished without any conversion thereof and no payment shall be made with respect thereto.

(d) Merger Consideration; Earnout.  The term “Merger Consideration” shall mean (i) that number of restricted shares of AE Stock applicable for achievement of the Merger Milestone giving rise to the Closing, as specified on Exhibit B (the “AE Closing Shares”), and (ii) the right to receive that number of shares of AE Stock applicable upon achievement of each Earnout Milestone during the Earnout Period, as specified on Exhibit B (the “AE Earnout Shares”).

(e) Payment of Merger Consideration.  The AE Closing Shares shall be delivered within 30 days after on the Closing Date, and (ii) the AE Earnout Shares shall be delivered within thirty (30) days after the applicable Earnout Milestone is achieved as set forth on Exhibit B.

 

(f) No Other Rights.  Upon consummation of the Merger, until surrendered to the Surviving Corporation, each certificate for shares of RTC stock which immediately prior to the Effective Time represented outstanding shares shall represent solely the right to receive the Merger Consideration relating thereto at and after the Effective Time.

 

4. Exchange of Certificates.

 

(a) Escrow Agent.  Crone Rozynko, LLP shall act as the exchange and escrow agent (the “Escrow Agent”) in the Merger, pursuant to the terms and condition of the Escrow Agreement, attached hereto as Exhibit H.

 

(b) Earnout Share Fund.  Promptly at the Effective Time, AE shall make available to the Escrow Agent for exchange in accordance with this Article 4, the AE Earnout Shares  (such shares of AE Stock, are hereinafter referred to as the “Earnout Share Fund”) issuable pursuant to Article 3 in exchange for outstanding shares of RTC Stock.

 

(c) Exchange Procedures.  Promptly after the Effective Time, AE shall instruct the Escrow Agent to mail to each holder of record of a certificate or certificates (“Certificates”) which, immediately prior to the Effective Time, represented all outstanding shares of RTC Stock whose shares were converted into the right to receive shares of AE Stock pursuant to Article 3: (i) a letter of transmittal in customary form (that shall specify that delivery shall be effec ted, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Escrow Agent and shall contain such other provisions as AE may reasonably specify); and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of AE Stock.  Upon surrender of Certificates for cancellation to the Escrow Agent, together with such letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Escrow Agent, the holders of such Certificates shall be entitled to receive in exchange therefore certificates representing the number of whole shares of AE Stock (after aggregating all Certificates surrendered by such holder) into which such holder is entitled pursuant to Article 3 and any dividends or distributions payable pursuant to Section 4(d).  The Certificates so surrendered shall forthwith be canc eled.  Until so surrendered, outstanding Certificates will be deemed from and after the Effective Time, for all corporate purposes, to evidence only the ownership of the number of full shares of AE Stock into which such shares of RTC Stock shall have been so converted and any dividends or distributions payable pursuant to Section 4(d). No interest will be paid or accrued on any unpaid dividends or distributions payable to holders of Certificates.  In the event of a transfer of ownership of shares of RTC Stock that is not registered in the transfer records of a RTC, a certificate representing the proper number of shares of AE Stock may be issued to a transferee if the Certificate representing such shares of RTC Stock is presented to the Escrow Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid.

(d) Distributions With Respect to AE Earnout Shares. No dividends or other distributions declared or made after the date of this Agreement with respect to AE Stock with a record date after the Effective Time will be paid to the holders of any RTC Certificates with respect to the shares of AE Stock represented thereby until the holders of record of such Certificates shall surrender such Certificates under the terms of the “Escrow Agreement,” attached hereto as Exhibit H.  Subject to applicable law, following surrender of any such Certificates, the Escrow Agent shall deliver to the record holders thereof, without interest: (i) promptly after such surrender the amount of dividends or other distributions with a record date after the Effective Time heretofore paid with respect to such whole shares of AE Stock; and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such whole shares of AE Stock.

 

(e) Required Withholding.  Each of the Escrow Agent and AE as the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of RTC Stock such amounts as may be required to be deducted or withheld therefrom under the Code or under any provision of state, local or foreign tax law or under any other applicable Legal Requirement.  To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under thi s Agreement as having been paid to the person to whom such amounts would otherwise have been paid.

 

(f) Lost, Stolen or Destroyed Certificates.  In the event that any Certificates shall have been lost, stolen or destroyed, the Escrow Agent shall issue in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit of that fact by the holder thereof, certificates representing the shares of AE Stock into which the shares of RTC Stock represented by such Certificates were converted pursuant to Article 3 and any dividends or distributions payable pursuant to Section 4(d); provided, however, that AE may, in its discretion and as a condition precedent to the issuance of such certificates representing shares of AE Stock, cash and other distributions, require the owner of such lost, stolen or destroyed Certificates to deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against AE, the Surviving Corporation or the Escrow Agent with respect to the Certificates alleged to have been lost, stolen or destroyed.

 

(g) No Liability.  Notwithstanding anything to the contrary in this Article 4, neither the Escrow Agent, AE, RTC, the Surviving Corporation nor any party hereto shall be liable to a holder of shares of AE Stock or RTC Stock for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law.

 

(h) No Further Ownership Rights in RTC Stock.  All shares of AE Stock issued in accordance with the terms shall be deemed to have been issued in full satisfaction of all rights pertaining to such shares of RTC Stock. There shall be no further registration of transfers on the records of the Surviving Corporation of shares of RTC Stock that were outstanding immediately prior to the Effective Time.

5. Representations and Warranties of RTC and the Minority Stockholders.

 

RTC and the Minority Stockholders hereby represent and warrant as follows:

 

(a) Organization, Standing and Authority of Purchaser.  RTC is a duly incorporated corporation, validly existing and in good standing under the laws of the State of Delaware with full corporate power and authority to carry on its business as now conducted and is duly qualified to do business in any jurisdiction where its ownership or leasing of property or the conduct of its business requires such qualification.

 

(b) RTC owns Four Hundred and Ninety (4,90) shares of EEI common stock (the “EEI Shares”), free and clear of all liens and Encumbrances, and the EEI Shares constitute 49% of the fully diluted total capitalization of EEI.  All outstanding EEI Shares are, and shall be at Closing, validly issued, fully paid and nonassessable.  There are no existing Rights, options, convertible or exchangeable securities, calls, claims, warrants, preemptive rights, registration rights or commitments of any character relating to the EEI Shares.  There are no outstanding stock appreciation, phantom stock or sim ilar rights with respect to the EEI Shares.  There are no outstanding obligations to repurchase, redeem or otherwise acquire the EEI Shares.

 

(c) Authorized and Effective Agreement.

 

(1) RTC has all requisite corporate power and authority to enter into and perform all of its obligations under this Agreement.  The execution, delivery and performance of this Agreement and the Transaction Documents by RTC and the consummation of the Merger and the other transactions contemplated hereby have been duly authorized by the board of directors of RTC, which authorization constitutes all necessary corporate action in respect thereof and which have not been rescinded, revoked or otherwise adversely modified.

 

(2) This Agreement constitutes the legal, valid and binding obligations of RTC, enforceable against it in accordance with its terms subject, as to enforceability, to bankruptcy, insolvency and other Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles.

 

(3) Neither the execution and delivery of this Agreement and the Transaction Documents, nor consummation of the Merger and the other transactions contemplated hereby, nor compliance by RTC with any of the provisions hereof shall (i) conflict with or result in a breach of any provision of the certificate of incorporation or bylaws of RTC or (ii) violate any Legal Requirements applicable to RTC.

 

(4) Other than the filing of the Articles of Merger with the Nevada Secretary of State and consent of RTC’s Stockholders, no consent, approval or authorization of, or declaration, notice, filing or registration with, any Governmental Entity, or any other Person, is required to be made or obtained by RTC on or prior to the Effective Time in connection with the execution, delivery and performance of this Agreement and the Plan of Merger or the consummation of the transactions contemplated hereby or thereby.

 

(2) All outstanding shares of RTC Stock are, and shall be at Closing, validly issued, fully paid and nonassessable, free and clean of all liens and Encumbrances.  There are no existing Rights, options, convertible or exchangeable securities, calls, claims, warrants, preemptive rights, registration rights or commitments of any character relating to the issued or unissued capital stock or other securities of RTC.  There are no outstanding stock appreciation, phantom stock or similar rights with respect to any capital stock of RTC.  There are no outstanding obligations of RTC to repurchase, redeem or otherwise acquire any shares of capital stock of RTC.

 

(e) Absence of Undisclosed Liabilities.

 

(1) At the Closing, RTC has no material assets and will not have any liabilities or Indebtedness of any kind.

 

(2) There is no basis for any assertion against RTC of any material liabilities, Indebtedness or obligations of any nature, whether absolute, accrued, contingent or otherwise and whether due or to become due, known or unknown, including, without limitation, any liability for taxes (including e-commerce sales or other taxes), interest, penalties and other charges payable with respect thereto.  Neither the execution and delivery of this Agreement or the Transaction Documents nor the consummation of the transactions contemplated hereby will (a) result in any payment (whether severance pay, unemployment compensation or otherwise) becoming due from RTC to any person or entity, including w ithout limitation any employee, director, officer or affiliate or former employee, director, officer or affiliate of RTC, (b) increase any benefits otherwise payable to any person or entity, including without limitation any employee, director, officer or affiliate or former employee, director, officer or affiliate of RTC, or (c) result in the acceleration of the time of payment or vesting of any such benefits.

 

(f) Litigation.  RTC is not a party to, or the subject of, any pending litigation, claims, or governmental investigation or proceeding, and to the Knowledge of RTC, there are no lawsuits, claims, assessments, investigations, or similar matters, threatened or contemplated against or affecting RTC or the management or properties of RTC.

 

(g) Minute Books and Records.  RTC has made its corporate financial records, minute books, and other corporate documents and records available for review to present management of AE prior to the Closing, during reasonable business hours and on reasonable notice.  The RTC minute books and other corporate records made available to AE prior to the date of this Agreement, are complete and accurate in all material respects.

 

(2) RTC hereby represents and warrants that it is not a party to any Contract or commitment other than this Agreement, the RTC Technology Assignment Agreement, and the EEI Technology Assignment Agreement.

 

(3) Other than as listed in 5(h)(2) above, RTC has no Contracts, commitments, arrangements, or understandings relating to its business, operations, financial condition, prospects or otherwise

 

(i) Tax Matters.  RTC has, or by the Closing will have, filed all federal Tax, governmental or related forms and reports (or extensions thereof) due or required to be filed in the ordinary course of business and has (or will have) paid or made adequate provisions for all Taxes, Tax Returns or assessments which have or shall become due as of the Closing.

 

(j) Subsidiary Entities.  RTC has no Subsidiary entities other than EEI.

 

(k) Disclosure.  All information regarding RTC which has been delivered by RTC to AE for use in connection with the Merger is true and accurate in all material respects.

 

(l) Governmental Authorizations:  Compliance with Laws.

 

(1) Up to the Closing, RTC is currently and has complied with, and RTC has conducted any business previously owned or operated by it in compliance with, all applicable laws, orders, rules and regulations of all Governmental Entities and agencies, including applicable securities laws and regulations and environmental laws and regulations.

 

(2) Up to the Closing, RTC has not received notice of any noncompliance with the foregoing, nor to its Knowledge are there any claims or threatened claims in connection therewith.  RTC has never conducted any operations or engaged in any business transactions whatsoever other than as disclosed in Section 5(h) hereto.

 

(3) Assuming all corporate consents and approvals have been obtained and assuming the appropriate filings and mailings are made by RTC under applicable Securities Laws, and with the Secretaries of State of Delaware and of Nevada, the execution and delivery by RTC of this Agreement and the closing documents and the consummation by RTC of the transactions contemplated hereby do not and will not (i) require the consent, approval or action of, or any filing or notice to, any corporation, firm, person or other entity or any public, Government Entity or judicial authority; or (ii) violate any order, writ, injunction, decree, judgment, ruling, law, rule or regulation of any federal, state, county, mu nicipal, or foreign court or Governmental Entity applicable to RTC, or its business or assets.  RTC is not subject to, or a party to, any mortgage, lien, lease, agreement, Contract, instrument, order, Encumbrance, judgment or decree or any other material restriction of any kind or character.

 

6. Representations and Warranties of AE.

 

AE hereby represents and warrants, to its current an accurate Knowledge, as follows:

 

(a) Organization, Standing and Authority of Purchaser.  AE is duly organized, validly existing and in good standing under the laws of the State of Nevada, with the full corporate power to own, lease and operate its property and to carry on its business.

 

(b) Capital Structure of AE.

 

(1) As of the Closing, the shares of AE Stock to be issued and delivered to the Minority Stockholders hereunder and in connection herewith will, when so issued and delivered, constitute duly authorized, validly and legally issued, fully-paid, nonassessable shares of AE capital stock, will not be issued in violation of any preemptive or similar rights and will be issued free and clear of all liens and Encumbrances, except as described herein.

 

(c) Authorized and Effective Agreement.

 

(1) AE has the corporate power to enter into this Agreement and to perform its obligations under this Agreement.  The execution, delivery and performance of this Agreement and the consummation of the Merger and the other transactions contemplated hereby (i) have been duly authorized by the Board of Directors of AE; and (ii) as of the Closing, will have been duly authorized and approved by the stockholders of AE.

 

(2) This Agreement has been duly executed and delivered by AE and constitutes a legal, valid and binding obligation of AE, enforceable against AE in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency or other Legal Requirements of general applicability relating to or affecting creditor’s rights generally and to general equity principles.

 

(3) Neither the execution nor the delivery of this Agreement will constitute a material breach of any agreement, indenture, mortgage, license or other instrument or document to which AE is a party or to which it is otherwise subject and will not violate any judgment, decree, order, writ, law, rule, statute, or regulation applicable to AE or its properties.

 

(d) Minute Books and Records.  Except as otherwise indicated in the AE Disclosure Documents, the AE minute books and other corporate records made available to RTC prior to the date of this Agreement, are complete and accurate in all material respects.

 

(e) AE owns Five Hundred and Ten (510) shares of EEI common stock (the “EEI Shares”), free and clear of all liens and Encumbrances, and the EEI Shares constitute 51% of the fully diluted total capitalization of EEI.  All outstanding EEI Shares are, and shall be at Closing, validly issued, fully paid and nonassessable.  There are no existing Rights, options, convertible or exchangeable securities, calls, claims, warrants, preemptive rights, registration rights or commitments of any character relating to the EEI Shares.  There are no outstanding stock appreciation, phantom stock or similar rights with respect to the EEI Shares.  There are no outstanding obligations to repurchase, redeem or otherwise acquire the EEI Shares.

 

7. Closing.

 

The Closing of the transactions contemplated herein shall take place at the offices of American Ethanol, Inc., 10600 N. De Anza Blvd., Suite 250, Cupertino, CA 95014, on such date (the "Closing") as mutually determined by the Parties when all conditions precedent have been met and all required documents have been delivered, which Closing shall occur on or before February 28, 2012.  In connection with the Closing, RTC and AE shall execute a Certificate of Merger in accordance with the NRS and DGCL, and AE shall cause it to be delivered and filed as soon as practicable on the Closing Date with the Delaware and Nevada Secretaries of State in accordance with the NRS and the DGCL.  The Merger shall become effective at the time and on the date (the  220;Effective Time”) specified in the Certificate of Merger.

 

8. Actions Prior to Closing.

 

(a) Prior to the Closing, RTC and AE will be entitled to make such investigations of the assets, properties, business and operations of the other party, and to examine the books, records, Tax Returns, financial statements and other materials of the other party as such investigating party deems reasonably necessary in connection with this Agreement and the transactions contemplated hereby.  Any such investigation and examination shall be conducted at reasonable times and under reasonable circumstances, and the Parties shall cooperate fully therein.  Until the Closing, and if the Closing shall not occur, thereafter, each party shall keep confidential and shall not use in any manner inconsistent with the transactions contemplated by this Agreement, and shall not disclose, nor use for their own benefit, any information or documents obtained from the other party concerning the assets, properties, business and operations of such party, unless such information (i) is readily ascertainable from public or published information, (ii) is received from a third party not under any obligation to keep such information confidential, or (iii) is required to be disclosed by any law or order (in which case the disclosing party shall promptly provide notice thereof to the other party in order to enable the other party to seek a protective order or to otherwise prevent such disclosure).  If this transaction is not consummated for any reason, each party shall return to the other all such confidential information, including notes and compilations thereof, promptly after the date of such termination.  The representations and warranties contained in this Agreement shall not be affe cted or deemed waived by reason of the fact that either Party discovered or should have discovered any representation or warranty is or might be inaccurate in any respect.

 

(c) Immediately after the execution of this Agreement, AE shall enter into the “Consulting Agreement,” attached hereto as Exhibit C, the “RTC Technology Assignment Agreement,” attached hereto as Exhibit D, the “EEI Technology Assignment Agreement,” attached hereto as Exhibit E and the “Shareholders Agreement,” attached hereto as Exhibit F; the “Escrow Agreement,” attached hereto as Exhibit H, collectively the Consulting Agreement, the RTC Technology Assignment Agreement, the EEI Technology Assignment Agreement, the Shareholders Agreement, and the Escrow Agreement shall be referred to hereinafter as the “Transaction Documents.”

 

9. Conditions Precedent to the Obligations of RTC.

 

All obligations of RTC under this Agreement are subject to the fulfillment, prior to or as of the Closing, of each of the following conditions:

 

(a) The representations and warranties by or on behalf of AE contained in this Agreement or in any certificate or document delivered pursuant to the provisions hereof or in connection herewith shall be true at and as of the Closing as though such representations and warranties were made at and as of such time.

 

(b) AE shall have performed and complied with all covenants, agreements, and conditions set forth or otherwise contemplated in, and shall have executed and delivered all documents required by, this Agreement to be performed or complied with or executed and delivered by them prior to or at the Closing.

 

(c) On or before the Closing, the Board of Directors of AE and the shareholders of AE shall have approved in accordance with applicable state corporation law the execution and delivery of this Agreement and the consummation of the transactions contemplated herein.

 

(d) The Merger shall be permitted by applicable state law and otherwise and AE shall have sufficient shares of its capital stock authorized to complete the Merger and the transactions contemplated hereby.

 

(e) The shares of restricted AE capital stock to be issued to RTC Stockholders at the Closing will be validly issued, nonassessable and fully paid under Nevada corporation law and will be issued in a nonpublic offering in compliance with all federal, state and applicable securities laws.

 

(j)  All Transaction Documents shall have been executed by the requisite Parties.

 

(a) The determination by the board of directors of AE, in the exercise of their reasonable discretion, that EEI shall have successfully achieved one of the Merger Milestones, as described in Exhibit B attached hereto.

 

(b) The representations and warranties by RTC and the Minority Shareholders contained in this Agreement or in any certificate or document delivered pursuant to the provisions hereof shall be true at and as of the Closing as though such representations and warranties were made at and as of such times;

 

(c) RTC shall have performed and complied with, in all material respects, all covenants, agreements, and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing;

 

(d) On or before the Closing Date, RTC shall have delivered certified copies of resolutions of the 100% of the RTC stockholders and the directors of RTC approving and authorizing the execution, delivery and performance of this Agreement and authorizing all of the necessary and proper action to enable RTC to comply with the terms of this Agreement;

 

(e) Clifford Bradley and Bob Kearns have been and remain the sole directors, officers and shareholders of RTC; provided however, that Clifford Bradley and Bob Kearns may assign their respective shares of RTC to family members by gift, will or intestate, subject to applicable Securities Laws;

 

(f) The Merger shall be permitted by applicable state law and otherwise and AE shall have sufficient shares of its capital stock authorized to complete the Merger and the transactions contemplated hereby.

 

(g) At the Closing, all instruments and documents delivered by RTC pursuant to the provisions hereof, shall be reasonably satisfactory to legal counsel for RTC.

 

(h) The shares of restricted RTC capital stock to be transferred to AE at the Closing will be validly issued, nonassessable and fully paid under Delaware corporation law and will be issued in compliance with all federal, state and applicable securities laws.

 

(j)  All Transaction Documents shall have been executed by the requisite Parties.

 

(i) At the Closing, RTC shall have delivered to AE an opinion of RTC’s legal counsel, dated as of the Closing, and in a form reasonably acceptable to AE to the effect that:

(1) RTC is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation;

 

(2) This Agreement has been duly authorized, executed and delivered by RTC and is a valid and binding obligation of RTC enforceable in accordance with its terms;

 

(3) RTC each through its Board of Directors and stockholders have taken all corporate action necessary for its performance under this Agreement; and

 

(4) RTC has the corporate power to execute, deliver and perform under this Agreement.

Notwithstanding any investigation conducted by any Party hereto or any information any party may receive, all representations, warranties, covenants and agreements contained in this Agreement (or in any schedule, certificate, document or statement delivered pursuant hereto) shall survive five (5) years after the Closing.  Further, the parties hereto agree to the Indemnification Provisions, as provided in Exhibit G, attached hereto.

 

12. Nature of Representations.

 

All of the parties hereto are executing and carrying out the provisions of this Agreement in reliance solely on the representations, warranties and covenants and agreements contained in this Agreement and the other documents delivered at the Closing and not upon any representation, warranty, agreement, promise or information, written or oral, made by the other party or any other person other than as specifically set forth herein.

 

13. Documents at Closing.

 

At the Closing, the following documents shall be delivered:

 

(a) RTC will deliver, or will cause to be delivered, to AE the following:

 

(1) a certificate executed by the President of RTC to the effect that all representations and warranties made by RTC under this Agreement are true and correct as of the Closing, the same as though originally given to AE on said date;

 

(2) a certificate from the state of RTC's incorporation dated within five business days of the Closing to the effect that RTC is in good standing under the laws of said state;

 

(3) such other instruments, documents and certificates, if any, as are required to be delivered pursuant to the provisions of this Agreement;

 

(4) executed copy of the Articles of Merger for filing in Delaware and Nevada;

 

(6) all other items, the delivery of which is a condition precedent to the obligations of AE, as set forth herein; and

 

(b) AE will deliver, or cause to be delivered, to RTC (or the Escrow Agent, as applicable), the following:

 

(1) stock certificates representing the AE Closing Shares as described in Article3 hereof;

 

(2) the AE Earnout Shares to the Escrow Agent as directed in Article 3 hereof.

 

(3) a certificate of the President of AE to the effect that all representations and warranties of AE made under this Agreement are true and correct as of the Closing, the same as though originally given to RTC on said date;

 

(4) certified copies of resolutions adopted by AE's Board of Directors authorizing the Merger and all related matters;

 

(5) certificates from the jurisdiction of incorporation of AE dated within five business days of the Closing Date that said corporations is in good standing under the laws of Delaware;

 

(6) executed copy of the Certificate of Merger for filing in Delaware and Nevada;

 

(7) such other instruments and documents as are required to be delivered pursuant to the provisions of this Agreement;

 

(8) all other items, the delivery of which is a condition precedent to the obligations of RTC, as set forth in Article 9 hereof.

AE represents and warrants to RTC, and RTC represents and warrants to AE that none of them, or any party acting on their behalf, has incurred any liabilities, either express or implied, to any "broker" or "finder" or similar person in connection with this Agreement or any of the transactions contemplated hereby.

 

15. Confidentiality Covenants.

 

(a) Confidentiality.  RTC and the Minority Shareholders hereby agree that, after the Closing, it shall not publicly disclose any confidential information of AE or RTC or EEI, and that they shall not make any public statement or announcement regarding the Merger or the business, financial condition, prospects or operations of EEI, AE or RTC, without the prior written consent of AE.

 

(b) Waiver.  Any failure on the part of any Party to comply with any of its obligations, agreements or conditions hereunder may be waived in writing by the party (in its sole discretion) to whom such compliance is owed.

 

(c) Termination.  This Agreement and all obligations hereunder (other than those under Sections 8(b) 16(l) ) may be terminated: (i) after February 28, 2012 at the discretion of either party if the Closing has not occurred by February 28, 2012 for any reason other than the default hereunder by the terminating party; (ii) at any time by the non-breaching party if any of the representations and warranties or other agreements made herein by the other party have been materially breached; or (iii) by mutual written consent of AE and RTC.  Any proper termination of this Agreement under this Section will be effective immediately upon the delivery of written notice by the terminating party to the other parties.

 

(d) Amendment.  This Agreement may be amended only in writing as agreed to by all parties hereto.

 

(e) Notices.  All notices and other communications hereunder shall be in writing and sufficient if delivered personally or sent and received by facsimile transmission or overnight express or by registered or certified mail, postage prepaid, at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this section):

 

(g) Counterparts.  This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

(h) Binding Effect.  This Agreement shall be binding upon the parties hereto and inure to the benefit of the parties, their respective heirs, administrators, executors, successors and assigns.

 

(i) Entire Agreement.  This Agreement and the attached Exhibits, including the Certificate of Merger, which is attached hereto as Exhibit "A," and the Merger Milestones attached as Exhibit B, and the Transaction Documents, are the entire agreement of the parties covering everything agreed upon or understood in the transaction.  There are no oral promises, conditions, representations, understandings, interpretations or terms of any kind as conditions or inducements to the execution hereof.

 

(j) Time.  Time is of the essence.

 

(k) Severability.  If any part of this Agreement is deemed to be unenforceable, the balance of the Agreement shall remain in full force and effect.

 

(l) Responsibility and Costs.  Whether the Merger is consummated or not, all Transaction Expenses incurred by the parties shall be borne solely and entirely by the party that has incurred such costs and expenses.

 

(m) Inapplicability of Indemnification Provisions.  The provisions contained in AE’s Articles of Incorporation and/or By-laws for indemnifying officers and directors of that company shall not apply for the purposes of this Agreement to the persons responsible for the representations and warranties made herein by AE.

 

(n) Applicable Law.  This Agreement shall be construed and governed by the internal laws of the State of California without reference to principles of conflicts of law.

(o) Legal Representation, Interpretation.  RTC and the Minority Stockholders acknowledge that they have been represented by independent legal counsel in the preparation and/or review of this Agreement, and the Steven D. Lee, Esq. has represented only the interests of AE and not RTC and the Minority Stockholders.  RTC and the Minority Shareholders represent that they have consulted with their own respective independent legal counsel and/or tax, financial and business advisors.  Each Party and its counsel cooperated in the drafting and preparation of this Agreement and the documents referred to herein, and any and all drafts relating thereto shall be deemed the work product of the parties and may not be construed against any party by reason of its preparation.  Accordingly, any rule of law, including but not limited to any decision that would require interpretation of any ambiguities in this Agreement against the party that drafted it, is of no application and is hereby expressly waived.  The provisions of this Agreement shall be construed as a whole and in accordance with its fair meaning to affect the intentions of the Parties and this Agreement.

 

(p) Successors and Assigns. This Agreement and the Transaction Documents contemplated hereby shall be binding upon, and shall inure to the benefit of, and shall be enforceable by, the Parties and their respective successors and permitted assigns.  Neither this Agreement, nor any Transaction Document contemplated hereby, nor any right hereunder or thereunder, may be assigned by the RTC or the Minority Stockholders, on the one hand, or the AE, on the other, without the prior written consent of the other; provided, however, that AE may freely assign this Agre ement, and any Transaction Document contemplated hereby and any right hereunder or thereunder to any wholly-owned subsidiary or successor in interest of AE without RTC or the Minority Stockholders’ prior written consent.

 

(q) Arbitration.  In the event of a dispute between the Parties related to or arising out of this Agreement, including without limitation any claim for breach of contract, shall be determined, settled and resolved by confidential arbitration in San Francisco, California.  Any and all questions as to whether or not an issue constitutes a dispute or other matter arbitrable under this section shall themselves be settled by arbitration in accordance with this section.  The arbitration shall be conducted pursuant to the procedures set forth in the California Code of Civil Procedure Section 1280, et seq.  Section 1283.05, thereof, authorizing discovery as applicable to any such arbitration.  Any award shall be final, binding and conclusive upon the parties, and a judgment rendered thereon may be entered in any court having jurisdiction thereof.  By signing this Agreement, all Parties confirm that they have read and understand this provision, and voluntarily agree to binding arbitration.  In doing so, all Parties voluntarily give up important constitutional rights to trial by judge or jury, as well as rights to appeal.