SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
August 31, 1997
CHARTWELL CABLE FUND, INC.
(Exact name of registrant as specified in its charter)
COLORADO 33-18174 84-1067172
(State or other (Commission File Number) (IRS Employer I.D.
jurisdiction of Number)
of incorporation)
405 SOUTH PLATTE RIVER DRIVE
DENVER, COLORADO 80203
(Address of principal executive offices)
Registrant's telephone number, including area code: (303) 733-9673
20 Chase Street
Lakewood, Colorado 80226
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(Former name and former address, if changed since last report)
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ITEM 1. CHANGES IN CONTROL OF REGISTRANT.
As a result of the transaction described in Item 5, below, the
Registrant's executive officers resigned, and the following
individuals were elected to fill the vacant positions:
NAME POSITION
Paul T. Siemann President, Chief Executive Officer,
Treasurer and Director
Joseph Chulupa Vice President and Director
Barbara Siemann Secretary and Director
As a result of the transaction described in Item 5, below,
Paul T. Siemann and Christian Business Advisory Services, Inc.
acquired 2,650,000 shares (71.6%) and 500,000 shares (13.5%),
respectively, of the Registrant's 3,700,000 currently outstanding
shares of $.10 par value common stock ("Common Stock").
ITEM 5. OTHER EVENTS.
On August 31, 1997, the Registrant entered into an Agreement
and Plan of Reorganization ("Agreement") with Siemann Educational
Systems, Inc. ("Siemann") pursuant to which the Registrant acquired
all of the outstanding capital stock of Siemann in exchange for
400,000 shares of the Registrant's Common Stock.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Business Acquired: The required
financial statements of Siemann will be filed with the
Commission within 60 days from the date hereof.
(c) Exhibits:
10.01 Agreement and Plan of Reorganization
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
CHARTWELL CABLE FUND, INC.
(Registrant)
By /s/ Paul T. Siemann
---------------------------------
Paul T. Siemann
Chief Executive Officer
Dated: September 8, 1997
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement is made as of the 4th day of June, 1997 by and
among Chartwell Cable Fund, Inc., a Colorado corporation
(hereinafter referred to as "Chartwell") and Siemann Educational
Systems, Inc., a corporation and Paul T. Siemann, Individually and
Sole Shareholder of Siemann Educational Systems, Inc.(hereinafter
referred to as "SES"), and is based on the following:
PREMISES
A. This Agreement provides for the exchange of all of the
outstanding common stock of SES for shares of common voting stock
of Chartwell, all for the purpose of effecting a tax-free
reorganization pursuant to Sections 354, 368(a)(1)(A) and
368(a)(2)(E) of the Internal Revenue Code of 1986, as amended.
B. The Boards of Directors of SES and Chartwell have agreed,
subject to the conditions set forth in this Agreement, and by these
premises do hereby evidence their agreement, that it is desirable
and in the best interests of said corporations and their
stockholders, that SES be held as a wholly-owned subsidiary of
Chartwell. This Agreement is being entered into for the purposes
of setting forth the terms and conditions of the exchange of the
shares of SES into shares of Chartwell.
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, it is hereby agreed as follows:
ARTICLE 1
REPRESENTATIONS, COVENANTS AND WARRANTIES OF CHARTWELL
As an inducement to, and to obtain the reliance of SES,
Chartwell represents and warrants as follows:
1.1 ORGANIZATION, GOOD STANDING, POWER, ETC. Chartwell (i)
is a corporation duly organized, validly existing and in good
standing under the law of the State of Colorado; (ii) is qualified
or authorized to do business as foreign corporations and are in
good standing in all jurisdictions in which qualification or
authorization may be required; and (iii) has all requisite
corporate power and authority, licenses and permits to own or lease
and operate their properties and carry on their business as
presently being conducted and to execute, deliver and perform this
Agreement and consummate the transactions contemplated hereby.
1.2 CERTIFICATE OF INCORPORATION AND BYLAWS. Prior to
execution of this Agreement by both parties Chartwell has furnished
to SES's representatives complete and correct copies of (i)
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their Certificate of Incorporation, as amended to date, and (ii)
their Bylaws, as amended to date. Chartwell's Certificate of
Incorporation and Bylaws are in full force and effect, and they are
not in violation of any of the provisions thereof.
1.3 CAPITALIZATION. The authorized capital stock of
Chartwell consists solely of 100,000,000 shares of Common Stock,
$.10 par value, (the "Chartwell Common Stock"), of which, on the
date hereof 3,250,000 shares are issued and outstanding and no
shares are held in the treasury of Chartwell. At the Closing of
this Agreement, 400,000 shares of Chartwell Common Stock will have
been lawfully and validly issued to the Shareholders of SES. All
of such issued and outstanding shares of the Chartwell Common Stock
have been duly authorized and validly issued and are fully paid and
non-assessable with no personal liability attaching to the
ownership thereof. Chartwell also has authorized 10,000,000 shares
of preferred stock, $.10 par value, of which none is nor has ever
been issued. All issued and outstanding shares are legally issued,
fully paid and nonassessable, and were not issued in violation of
the preemptive or other rights of any person.
1.4 OPTIONS, WARRANTS, RIGHTS, ETC. Chartwell does not have
outstanding any option, warrant or other right to purchase or
convert any obligation into, any shares of Chartwell Common Stock,
nor any instruments or obligations to confer or create such rights.
1.5 SUBSIDIARIES. Chartwell has no subsidiaries and
Chartwell does not own a controlling interest in any capital stock
of any corporation.
1.6 AUTHORIZATION OF AGREEMENT. This Agreement has been or
will be at Closing duly and validly authorized, executed and
delivered by Chartwell.
1.7 TAX MATTERS. On or before Closing, Chartwell will have
prepared and filed with the appropriate United States, state and
local governmental agencies, and all foreign countries and
political subdivisions thereof, all tax returns required to be
filed; Chartwell will have paid all taxes shown on such tax returns
to be payable or which have become due pursuant to any assessment,
deficiency, notice, 30-day letter or similar notice received by it;
and the provisions for income taxes payable in the Balance Sheets
of Chartwell delivered to SES are sufficient for all accrued and
unpaid taxes, whether or not disputed and for all periods to and
including the date of such Balance Sheet. On or before Closing,
Chartwell will provide true and accurate copies of all tax returns
filed for the last three fiscal years, together with a balance
sheet and income statement as of the date of this Agreement. The
balance sheet and income statement of Chartwell shall be updated
through Closing.
1.8 COMPLIANCE WITH APPLICABLE LAWS. The conduct by
Chartwell of their business does not violate or infringe on any
domestic (federal, state or local) or foreign law, statute,
ordinance or regulation now in effect, or, to the knowledge of
Chartwell proposed to be adopted, the enforcement of which would
materially and adversely affect its business or the value of its
properties or assets.
1.9 LITIGATION. There is no material claim, action, suit,
proceeding, arbitration, investigation or inquiry pending before
any federal, state, municipal, foreign or other court or
governmental or administrative body or agency, or any private
arbitration tribunal, or to the knowledge of Chartwell, threatened,
against, relating to or affecting Chartwell or any of their
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properties or business, or the transactions contemplated by this
Agreement; nor to the knowledge of Chartwell is there any basis for
any such material claim, action, suit, proceeding, arbitration,
investigation or inquiry which may have any adverse effect upon the
assets, properties or business of Chartwell , or the transactions
contemplated by this Agreement. Neither Chartwell nor any officer,
director, partner or employee of Chartwell , have been permanently
or temporarily enjoined by order, judgment or decree of any court
or other tribunal or any agency from engaging in or continuing any
conduct or practice in connection with the business engaged in by
Chartwell. There is not in existence at present any order,
judgment or decree of any court or other tribunal or any agency
enjoining or requiring Chartwell to take any material action of any
kind or to which Chartwell or their respective business, properties
or assets are subject or bound. Chartwell is not in default under
any order, license, regulation or demand of any federal, state or
municipal or other governmental agency or with respect to any
order, writ, injunction or decree or any court which would have a
materially adverse impact upon Chartwell's operations or affairs.
1.10 OTHER INFORMATION. Chartwell does not presently have any
material contractual commitments, non-executive officer employees
or employee benefit commitments. In addition, none of the
information and documents made or to be made available by Chartwell
or any of its representatives to SES or any of its representatives
in connection with the transactions contemplated by this Agreement
is materially false or misleading or contains any material
misstatements of fact or omits any material fact necessary to be
stated in order to make the statements therein not misleading.
1.11 NO ADVERSE CHANGES. Since the date of Chartwell's most
recent audited financial statements, there has been no material
adverse change in Chartwell's financial condition, assets,
liabilities, or business.
1.12 EXCHANGE ACT FILINGS AND FINANCIAL STATEMENTS. On or
before Closing, Chartwell has delivered to SES true and accurate
copies of all Financial Statements and reports filed by Chartwell
with the United States Securities and Exhange Commission (the SEC)
pursuant to Section 15(d) of the Securities Exchange Act of 1934
(the 1934 Act) including without limitation, registration
statements, 10-K's, 10-Q's, Form 8's, etc. for each of the annual,
quarterly or other fiscal periods from the first to latest such
filings since Chartwell first so registered as a public company.
Chartwell financial statements have been prepared in accordance
with generally accepted accounting principles applied on a basis
consistent with that of prior years or periods and fairly present
the financial position and results of operations of Chartwell as of
the respective dates and for the periods indicated in such
statements. The Balance Sheets of Chartwell included in the
statements make full and adequate provision for all obligations,
liabilities or commitments (fixed and contingent) of Chartwell as
of their respective dates. As of the date of such financial
statements, Chartwell had no material obligations, liabilities or
commitments (fixed or contingent) not required to be reserved
against in the foregoing financial statements or disclosed in the
notes thereto in accordance with generally accepted accounting
principles, and since the date of the most recent balance sheet has
not incurred any material obligations, liabilities or commitments
except the transactions contemplated by this Agreement. Chartwell
will file all reports required of it under the 1934 Act as a result
of this transaction, including a Form 8-K.
1.13 SHAREHOLDER LIST. Upon the closing of this Agreement,
Chartwell shall furnish to SES a true and complete list of all
shareholders of Chartwell, including name, address, telephone
number, and relationship of any beneficial or indirect interests
known to Chartwell or its officers,
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directors, or advisors, of greater than 5,000 shares individually
and/or in the aggregate of such beneficial or indirect interests.
ARTICLE 2
REPRESENTATIONS, COVENANTS AND WARRANTIES OF SES
As an inducement to, and to obtain the reliance of Chartwell,
SES represents and warrants as follows:
2.1 ORGANIZATION, GOOD STANDING, POWER, ETC. SES (i) is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Colorado, and (ii) has all requisite
corporate power and authority, licenses, permits and franchises to
own or lease and operate its properties and carry on its business
as presently being conducted and to execute, deliver and perform
this Agreement and consummate the transactions contemplated hereby.
2.2 CERTIFICATE OF INCORPORATION AND BYLAWS. Upon execution
of this Agreement by both parties, SES will furnish to Chartwell's
representatives a complete and correct copy of (i) SES's
Certificate of Incorporation, as amended to date; and (ii) SES's
Bylaws, as amended to date. SES's Certificate of Incorporation and
Bylaws are in full force and effect, and SES is not in violation of
any of the provisions thereof.
2.3 CAPITALIZATION. By Closing the authorized capital stock
of SES will consist solely of 1,000,000 shares of Common Stock, no
par value, (the "SES Common Stock"), of which, on the date hereof
10,000 shares are issued and outstanding and no shares are held in
the treasury of SES. All of such issued and outstanding shares of
SES Common Stock have been duly authorized and validly issued and
are fully paid and non-assessable with no personal liability
attaching to the ownership thereof.
2.4 OPTIONS, WARRANTS, RIGHTS, ETC. SES does not have
outstanding any option, warrant or other right to purchase or
convert any obligation into, any shares of the SES Common Stock,
nor any instruments or obligations to confer or create such rights.
2.5 SUBSIDIARIES. SES does not have any subsidiaries and
does not own a controlling interest in any capital stock of any
corporation.
2.6 AUTHORIZATION OF AGREEMENT. This Agreement has been or
will be at Closing duly and validly authorized, executed and
delivered by SES.
2.7 FINANCIAL STATEMENTS. SES has delivered or will deliver
prior to Closing, to Chartwell audited financial statements for its
most recent fiscal year, together with unaudited interim financial
statements for the four months ended April 30, 1997. These
financial statements have been prepared in accordance with
generally accepted accounting principles applied on a basis
consistent with that of prior years or periods, are correct and
complete and fairly present the financial position and results of
operations of SES as of the respective dates and for the periods
indicated in such statements. The Balance Sheets of SES included
in the statements make full and adequate provisions for all
obligations, liabilities or commitments (fixed and contingent) of
SES as
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of their respective dates. As of the date of such financial
statements, SES has no obligations, liabilities or commitments
(fixed or contingent) not required to be reserved against in the
foregoing financial statements or disclosed in the notes thereto in
accordance with generally accepted accounting principles, except
the transactions contemplated by this Agreement.
2.8 MATERIAL CONTRACTS. There has not occurred any default
by SES or any event which with the lapse of time or the election of
any person other than SES, or any combination thereof, will become
a default, except defaults, if any, which will not result in any
material loss to or liability of SES.
2.9 PERMITS, LICENSES, ETC. SES has all permits, licenses,
orders and approvals of federal, state, local or foreign
governmental or regulatory bodies that are required in order to
permit it to carry on its business as presently conducted.
2.10 COMPLIANCE WITH APPLICABLE LAWS. The conduct by SES of
its business does not violate or infringe upon any domestic
(federal, state or local) or foreign law, statute, ordinance or
regulation now in effect, or, to the knowledge of SES, proposed to
be adopted, the enforcement of which would materially and adversely
affect its business or the value of its properties or assets.
2.11 LITIGATION. There is no material claim, action, suit,
proceeding, arbitration, investigation or inquiry pending before
any federal, state, municipal, foreign or other court or
governmental or administrative body or agency, or any private
arbitration tribunal, or to the knowledge of SES threatened,
against, relating to or affecting SES or any of its properties or
business, or the transactions contemplated by this Agreement; nor
to the knowledge of SES is there any basis for any such material
claim, action, suit, proceeding, arbitration, investigation or
inquiry which may have any adverse effect upon the assets,
properties or business of SES, or the transactions contemplated by
this Agreement. Neither SES nor any officer, director, partner or
employee of SES, has been permanently or temporarily enjoined by
order, judgment or decree of any court or other tribunal or any
agency from engaging in or continuing any conduct or practice in
connection with the business engaged in by SES. There is not in
existence at present any order, judgment or decree of any court or
other tribunal or any agency enjoining or requiring SES to take any
material action of any kind or to SES or its respective business,
properties or assets are subject or bound. SES is not in default
under any order, license, regulation or demand of any federal,
state or municipal or other governmental agency or with respect to
any order, writ, injunction or decree of any court which would have
a materially adverse impact upon SES's operations or affairs.
2.12 OTHER INFORMATION. None of the information and documents
which have been furnished or made available by SES or any of its
representatives to Chartwell or any of their representatives in
connection with the transactions contemplated by this Agreement is
materially false or misleading or contains any material
misstatements of fact or omits any material fact necessary to be
stated in order to make the statements therein not misleading.
2.13 INVESTMENT REPRESENTATION. The SES shareholder is
acquiring the shares of Chartwell Common Stock issuable hereunder
for his own account and agrees not to distribute such Shares within
the meaning of the Securities Act of 1933 (the 1933 Act) unless an
appropriate registration statement has been filed with the SEC or
unless an exemption from registration under the 1933 Act is
available according to opinion of counsel for Chartwell. Each
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certificate for Shares shall be stamped or otherwise imprinted with
the following or a substantially similar legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act")
nor any state securities laws. These shares may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the
Act or pursuant to an opinion of counsel acceptable to
Chartwell that an exemption from such registration is
available."
On or before Closing, SES will obtain from all SES
shareholders information and representations that said shareholders
have sufficient investment sophistication and ability to take the
financial risks associated with this transaction and those
representations contained in this Section 2.13, which meet the
standards for availability of an exemption from the registration
requirements of the 1933 Act and from the registration and/or
qualification requirements of any other applicable securities law.
The foregoing notwithstanding, the Shares issuable hereunder may be
registered in the name of or transfered to family members, trusts
and other related parties.
ARTICLE 3
PLAN OF EXCHANGE
3.1 THE EXCHANGE. The issued and outstanding shares of
common stock of SES shall be converted into shares of Chartwell
Common Stock as follows:
(a) Each share of SES Common Stock outstanding on the
Closing Date shall be converted into 40 shares of Chartwell
Common Stock; or a total of 400,000 shares of Chartwell Common
Stock for all of the issued and outstanding shares of SES.
Chartwell shall not issue or exchange any fractional shares or
interests in the Chartwell Common Stock in connection with the
foregoing conversion. If any holder of SES common stock would
otherwise be entitled to a fractional share on exchange of
such shares, Chartwell shall round the number of shares of the
Chartwell Common Stock to be issued to such stockholder to the
nearest whole share. The exchanged Chartwell Common Stock
shall thereupon be validly issued and outstanding, fully paid,
and nonassessable and shall not be liable to any further call,
nor shall the holder thereof be liable for any further
payments with respect thereto.
(b) After the Closing Date, each holder of an
outstanding certificate which prior thereto represented shares
of SES Common Stock shall be entitled, on surrender thereof to
receive in exchange therefor a certificate or certificates
representing the number of whole shares of Chartwell Common
Stock into which the shares of Common Stock so surrendered
shall have been converted as aforesaid in such denominations
as such holder may request. Until so surrendered, each such
outstanding certificate (which prior to the Effective Date of
the exchange represented shares of Common Stock of SES) shall
for all purposes evidence the ownership of the shares of
Chartwell Common Stock into which such shares shall have been
converted; provided, that dividends or other distributions
which are payable in respect of shares of Chartwell Common
Stock into which shares of SES shall not be paid to holders of
certificates representing such shares of SES Common
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Stock until such certificates shall have been surrendered in
exchange for certificates representing Chartwell Common Stock.
On such surrender, the holder(s) of such shares shall be
entitled to receive such dividends or other distributions
without interest.
3.2 CLOSING. The closing of the transactions contemplated by
this Agreement shall take place on such date as may be agreed upon
by the parties, but no sooner than July 1, 1997, and after receipt
by SES of written notice from the Department of Education that SES
has been recertified under the Title IV program (herein called the
"Closing Date"), at the offices of One Capital Corporation, 410
Seventeenth Street, Suite 1940, Denver Colorado 80202 or such other
time and location as the parties may mutually agree. The estimated
date SES will receive such notice is June 15, 1997. The parties
agree that if the closing has not taken place on or before August
1, 1997, this Agreement shall be voidable by either party.
3.3 CLOSING EVENTS. At the Closing, each of the respective
parties hereto shall execute, acknowledge, and deliver (or shall
cause to be executed, acknowledged, and delivered) any agreements,
resolutions, 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.
3.4 DIRECTORS OF CHARTWELL. Effective on the Closing Date of
this transaction, the Board of Directors of Chartwell shall consist
of the individuals named by SES in Section 3.5 hereof, and the
existing directors of Chartwell and any others shall have submitted
their resignations to take effect at closing.
3.5 OFFICERS OF CHARTWELL. Effective on the Closing Date of
this transaction all existing executive officers and employees of
Chartwell shall have submitted their resignations effective on
Closing, and the Board shall have elected new officers of Chartwell
to consist of the following persons:
NAME OFFICE
Paul T. Siemann President, Chief Executive Officer,
Treasurer and Director
Joe Chulupa Vice President and Director
Barbara Siemann Secretary and Director
ARTICLE 4
SPECIAL COVENANTS
4.1 DUE DILIGENCE. The parties hereto shall have up to and
including July 1, 1997 within which to complete their due diligence
investigations on the other party and the transaction contemplated
hereunder. In the event either party hereto decides, in its sole
discretion, not to proceed with the Closing based on its due
diligence investigation, it shall notify the other in writing on or
before 5:00 P.M. Mountain Time, July 1, 1997 of such decision and
this Agreement,
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except Sections 4.4, 4.5 and 6.11 shall become null and void, and
no liability shall occur to any of the parties herein.
4.2 EXCHANGE OF INFORMATION. Each party shall cooperate
fully by exchanging information requested by the other party in a
timely manner. Without in any manner reducing or otherwise
mitigating the representations contained herein, each party and/or
its attorneys shall have the opportunity to meet with the
accountants and attorneys of the other party to discuss its
respective legal and financial condition and this transaction. If
this transaction is not completed, all documents received by each
party and/or its attorney shall be returned to the other party and
all such information so received shall be treated as confidential
in accordance with Section 6.11.
4.3 CONDUCT OF BUSINESS. Prior to Closing, Chartwell and SES
shall each conduct its business in the normal course, and shall not
sell, pledge, or assign any assets, without the prior written
approval of the other party, except in the regular course of
business. Neither Chartwell or SES shall amend its Articles of
Incorporation or Bylaws, declare dividends, redeem or sell stock or
other securities, incur additional or newly-funded liabilities,
acquire or dispose of fixed assets, change employment terms, enter
into any material or long-term contract, guarantee obligations of
any third party, settle or discharge any balance sheet receivable
for less than its stated amount, pay more on any liability than its
stated amount, or enter into any other transaction other than in
the regular course of business and with notice to the other party.
4.4 NASDAQ QUOTATION. After Closing, Chartwell (by its new
management) agrees to use its best efforts to cause the outstanding
shares of the Chartwell Common Stock to be listed on the NASD OTC
Bulletin Board and subsequently on the NASDAQ Stock Market as soon
as reasonably possible upon meeting NASDAQ requirements.
ARTICLE 5
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARTIES
5.1 SES'S CLOSING CONDITIONS. The obligations of SES
hereunder are subject to fulfillment prior to or at the Closing of
each of the following conditions:
(a) CLOSING DATE. The transactions contemplated by this
Agreement shall be closed on or before August 1, 1997.
(b) REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Chartwell made pursuant to Article 1 above,
shall be true and accurate in all material respects as of the
Closing Date.
(c) PERFORMANCE. Chartwell shall have performed and
complied with all agreements and conditions required by this
Agreement to be performed or complied with by it prior to or
at the Closing.
(d) NO ADVERSE CHANGES. There shall not have been,
since the date of the latest audited financial statements of
Chartwell, any materially adverse change in Chartwell's
financial condition, assets, liabilities or business.
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(e) OPINION OF CHARTWELL'S COUNSEL. Chartwell shall
have delivered to SES an opinion of Chartwell's counsel,
Dennis Brovarone, Attorney at Law, dated the Closing Date to
the effect that: (i) Chartwell is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Colorado, has all requisite power to
carry on its business as now being conducted and to execute,
deliver and perform this Agreement and to perform its
obligations thereunder; (ii) Chartwell is duly qualified to do
business as a foreign corporation and is good standing in each
jurisdiction in which the nature of the business conducted by
it or the property owned, operated or leased by it makes such
qualification necessary; (iii) this Agreement has been duly
authorized by all necessary corporate action on the part of
Chartwell, has been duly executed and delivered by Chartwell
and constitutes the legal, valid and binding obligation of
Chartwell enforceable in accordance with its terms except as
enforceability thereof may be limited by the insolvency or
other laws affecting the rights of creditors and the
enforcement of remedies; (iv) Chartwell has prepared and filed
with the SEC all periodic reports required of it under the
1934 Act; (v) the Shares issuable hereunder have been duly
authorized and will be validly issued; fully paid and non-
assessable with no personal liability attaching to the
ownership thereof; (vi) neither the execution, delivery and
performance by Chartwell of this Agreement, nor compliance by
Chartwell with the terms and provisions hereof, will conflict
with, or result in a breach of the terms, conditions or
provisions of, or will constitute a default under, the
Articles of Incorporation or Bylaws of Chartwell or any
agreement or instrument known to such counsel to which
Chartwell is a party or by which Chartwell or any of its
properties or assets are bound; (vii) there are no actions,
suits or proceedings pending or, to the knowledge of such
counsel, threatened against Chartwell before any court or
administrative agency, which have, in the opinion of such
counsel, if adversely decided, will have any material adverse
effect on the business or financial condition of Chartwell or
which questions the validity of this Agreement or the Shares
issuable hereunder. In rendering his opinion, counsel shall
be allowed to rely on written representations of officers and
directors of the Company as to factual matters without
independent verification thereof.
(f) CURRENT STATUS WITH SECURITIES AND EXCHANGE
COMMISSION. Chartwell shall have prepared and filed with the
SEC all periodic reports required under the 1934 Act pursuant
to Section 15(d) thereof.
(g) DUE DILIGENCE. SES shall have completed and be
satisfied with its due diligence investigation of Chartwell
pursuant to Article 4.1.
(h) TITLE IV RECERTIFICATION. SES shall have received
written notice of recertification pursuant to Title IV of The
Higher Education Act from the Department of Education.
5.2 CHARTWELL'S CLOSING CONDITIONS. The obligations of
Chartwell hereunder are subject to fulfillment prior to or at the
Closing of each of the following conditions:
(a) CLOSING DATE. The transactions contemplated by this
Agreement shall be closed on or before August 1, 1997.
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(b) REPRESENTATIONS AND WARRANTIES. The representations
and warranties of SES made pursuant to Article 2 above, shall
be true and accurate in all material respects as of the
Closing Date.
(c) PERFORMANCE. SES shall have performed and complied
with all agreements and conditions required by this Agreement
to be performed or complied with by it prior to or at the
Closing.
(d) NO ADVERSE CHANGES. There shall not have been,
since the date of the latest audited financial statements of
SES, any materially adverse change in SES's financial
condition, assets, liabilities or business.
(e) OPINION OF SES'S COUNSEL. SES shall have delivered
to Chartwell, an opinion of SES's counsel, James Soren,
Attorney at Law, dated the Closing Date to the effect that:
(i) SES is a corporation duly organized, validly existing and
in good standing under the laws of the State of Colorado has
all requisite power to carry on its business as now being
conducted and to execute, deliver and perform this Agreement
and to perform its obligations thereunder; (ii) SES is duly
qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which the nature of the
business conducted by it or the property owned, operated or
leased by it makes such qualification necessary; (iii) this
Agreement has been duly authorized by all necessary corporate
action on the part of SES, has been duly executed and
delivered by SES and constitutes the legal, valid and binding
obligation of SES, enforceable in accordance with its terms
except as enforceability thereof may be limited by the
insolvency or other laws affecting the rights of creditors and
the enforcement of remedies; (iv) neither the execution,
delivery and performance by SES of this Agreement, nor
compliance by SES with the terms and provisions hereof, will
conflict with, or result in a breach of the terms, conditions
or provisions of, or will constitute a default under, the
Articles of Incorporation or Bylaws of SES or any agreement or
instrument known to such counsel to which SES is a party or by
which SES or any of its properties or assets is bound; (v)
there are no actions, suits or proceedings pending or, to the
knowledge of such counsel, threatened against SES before any
court or administrative agency, which, in the opinion of such
counsel, if adversely decided, will have any material adverse
effect on the business or financial condition of SES or which
questions the validity of this Agreement. In rendering their
opinion, counsel shall be allowed to rely on written
representations of officers and directors of the Company as to
factual matters without independent verification thereof.
(f) DUE DILIGENCE. Chartwell shall have completed and
be satisfied with its due diligence investigation of SES
pursuant to Article 4.1.
ARTICLE 6
MISCELLANEOUS
6.1 EXPENSES AND FURTHER ASSURANCES. The parties hereto
shall each bear their respective costs and expenses incurred in
connection with the transactions contemplated by this Agreement.
Each party hereto will use its best efforts provide any and all
additional information,
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execute and deliver any and all documents or other written material
and perform any and all acts necessary to carry-out the intent of
this Agreement.
6.2 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
All of the representations, warranties and covenants made as of the
date of this Agreement and as of Closing, shall survive the closing
of this transaction.
6.3 SUCCESSORS AND ASSIGNS. All representations, warranties,
covenants and agreements in this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective heirs, representatives, successors and assigns whether
so expressed or not.
6.4 GOVERNING LAW. This Agreement is to be governed by and
interpreted under the laws of the State of Colorado, without giving
effect to the principles of conflicts of laws thereof.
6.5 NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to
have been duly given (a) on date of delivery if delivered
personally or (b) on the fifth day after being sent by certified
mail, return receipt requested, with postage prepaid as follows:
If to Chartwell addressed to: A. Clinton Ober
20 Chase St.
Lakewood, CO 80226
with a copy to: Dennis Brovarone, Esq.
11249 West 103rd Drive
Westminster, CO 80021
If to SES, addressed to: Paul T. Siemann
Siemann Educational Systems, Inc.
405 South Platte River Drive, Suite 3A
Denver, CO 80223
with a copy to: James Soren
Montgomery Little & McGrew
5445 DTC Parkway
Greenwood Village, CO 80111
6.6 SECTION AND OTHER HEADINGS. The section and other
headings herein contained are for convenience only and shall not be
construed as part of this Agreement.
6.7 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and each counterpart shall constitute an
original instrument, but all such separate counterparts shall
constitute but one and the same instrument.
6.8 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior
agreements, understandings and arrangements, oral or
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written, between the parties hereto with respect to the subject
matter hereof. This Agreement may not be amended or modified,
except by a written agreement signed by all parties hereto.
6.9 SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffectual to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction.
6.10 ATTORNEYS' FEES. In the event that any party institutes
any action or suit to enforce this Agreement or to secure relief
from any default hereunder or breach hereof, the breaching party or
parties shall reimburse the non-breaching party or parties for all
costs, including reasonable attorneys' fees, incurred in connection
therewith and in enforcing or collecting any judgment rendered
therein.
6.11 CONFIDENTIALITY. Each party hereto agrees with the other
parties that, unless and until this Agreement has been consummated,
or for a period of one (1) year from the date of this Agreement if
the transaction contemplated by this Agreement is not consummated
it and its representatives will hold in strict confidence all data
and information obtained with respect to the other party 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 has theretofore
been publicly disclosed, is a matter of public knowledge or is
required by law to be publicly disclosed; and (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 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.
CHARTWELL CABLE FUND, INC.
By: /s/ A. CLINTON OBER
A. Clinton Ober, President
By: /s/ DANIEL BULLER
Daniel Buller, Secretary
Siemann Educational Systems, Inc.
/s/ PAUL T. SIEMANN
By: Paul T. Siemann, President
By: /s/ BARBARA SIEMANN
Barbara Siemann, Secretary
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