<PAGE> 1
United States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Consolidated Capital of North America, Inc.
(Name of Issuer)
Common Stock, par value $.0001 per share
(Title of Class of Securities)
208892208
(CUSIP Number)
Thomas P. Gallagher, Esq., Gallagher, Briody & Butler
212 Carnegie Center, Suite 402, Princeton, New Jersey 08540
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
JANUARY 21, 1997
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13D-1(b)(3) or (4), check the following box [].
Note: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE> 2
SCHEDULE 13D
CUSIP No. 208892208
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Stone Pine Colorado, LLC
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (see instructions)
OO
- --------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS [ ]
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
Not Applicable
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION
Colorado
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 8,638,003
BENEFICIALLY ------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH -0-
REPORTING ------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 8,638,003
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
8,638,003
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES (See Instructions) [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
55.00%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
- --------------------------------------------------------------------------------
<PAGE> 3
SCHEDULE 13D
CUSIP No. 208892208
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Stone Pine Capital, LLC
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (see instructions)
OO
- --------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS []
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
Not Applicable
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION
Colorado
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY ------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 8,638,003
REPORTING ------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH -0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
8,638,003
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
8,638,003
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES (See Instructions) [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
55.00%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
00
- --------------------------------------------------------------------------------
<PAGE> 4
SCHEDULE 13D
CUSIP No. 208892208
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Stone Pine Atlantic Equities, LLC
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (see instructions)
OO
- --------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS []
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
Not Applicable
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION
Colorado
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY ------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 8,638,003
REPORTING ------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH -0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
8,638,003
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
8,638,003
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES (See Instructions) [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
55.00%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
- --------------------------------------------------------------------------------
<PAGE> 5
SCHEDULE 13D
CUSIP No. 208892208
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Thompson H. Rogers
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (see instructions)
OO
- --------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS []
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
Not Applicable
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OR ORGANIZATION
United States of America
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY ------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 8,638,003
REPORTING ------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH -0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
8,638,003
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
8,638,003
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES (See Instructions) [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
55.00%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE> 6
Item 1 Security and Issuer.
This statement on Schedule 13D relates to the common stock,
par value $.0001 per share of Consolidated Capital of North America, Inc. (the
"Issuer"). The address of the principal executive office of the Issuer is 410
17th Street, Suite 400, Denver, Colorado 80202.
Item 2 Identity and Background.
(a) This statement is being filed jointly by Stone Pine
Colorado, LLC ("Stone Pine Colorado"), the entity which directly owns 8,638,003
of the Issuer's outstanding common stock (the "Shares"), and the following
entities and individuals who are members of Stone Pine Colorado (the "Members")
and each own an equal voting interest in Stone Pine Colorado: Stone Pine
Capital, LLC ("Stone Pine Capital"); Stone Pine Atlantic Equities, LLC ("Stone
Pine Atlantic"); and Thompson H. Rogers. Stone Pine Colorado, Stone Pine
Capital, Stone Pine Atlantic and Thompson H. Rogers are referred to herein as
the Reporting Persons. Each Member may be deemed a member of a group that shares
voting and dispositive power over the Shares and may be deemed to beneficially
own the Shares. Paul Bagley, III and W. Duke DeGrassi (the "Voting Persons")
have been designated as the voting person for Stone Pine Capital and Stone Pine
Atlantic, respectively.
(b) The business address of each of the Reporting Persons and
Voting Persons are set forth in Schedule A hereto and are incorporated herein by
reference.
(c) The present principal occupation or employment and the
name, principal business and address of any corporation or other organization in
which such employment is conducted for each of the individuals set forth in Item
2(a) is set forth in Schedule A hereto and incorporated herein by reference.
(d) and (e) None of the Reporting Persons or Voting Persons
have, during the last five years, been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or were a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
as a result of which any such person was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
(f) The citizenship of each of the Reporting Persons and
Voting Persons is set forth in Schedule A hereto and incorporated herein by
reference.
Item 3 Source and Amount of Funds or Other Consideration.
On January 21, 1997, Consolidated Land & Cattle Company, a wholly owned
subsidiary of the Issuer, merged with and into Angeles Acquisition Corp.
("Angeles Acquisition"), a company privately held
<PAGE> 7
by Stone Pine Colorado (the "Merger"). Prior to the Merger, Angeles Acquisition
had acquired Angeles Metal Trim Co.("Angeles Metal"), a privately-held company
headquartered in Los Angeles, California which fabricates and sells steel
framing for commercial and residential structures. In the Merger, the Issuer
issued to Stone Pine Colorado 8,638,003 shares of the Issuer's common stock.
Item 4 Purpose of Transaction.
(a), (b), (d) As described in Item 3, Stone Pine Colorado
acquired 8,638,003 shares of the Issuer's common stock pursuant to the terms of
the Merger. Immediately following the Merger, the Issuer sold 5,496,911 shares
of its common stock in a private transaction exempt from registration under
Regulation S of the Securities Act of 1933, as amended, to certain parties
unrelated to Stone Pine Colorado (the "Share Issuance"). Upon completion of the
Merger, the Issuer's current directors resigned and were replaced by new
directors designated by Stone Pine Colorado. The change in the membership of the
Board of Directors of the Issuer was described in an Information Statement filed
with the United States Securities and Exchange Commission on December 19, 1996,
pursuant to Section 14(f) of the Securities Exchange Act of 1934 and Rule 14f-1
thereunder. None of the Reporting Persons have any plans or proposals which
relate to Items 4(c), or any plans or proposal with that relate to Items 4(e)
through and including (j).
Item 5 Interest in Securities of the Issuer.
(a) With the consummation of the Merger and the Share
Issuance, there are 15,705,460 shares of the Issuer's common stock outstanding.
Stone Pine Colorado directly owns 8,638,003 shares of the Issuer's common stock,
or 55%. Each Member may be deemed a member of a group that shares voting and
dispositive power over the Shares and may be deemed to beneficially own the
Shares.
(b) The Shares are directly owned by Stone Pine Colorado. J.
Paul Bagley, III as the Manager of Stone Pine Colorado, has the right to vote
the Shares. The Members together have the right to dispose or direct the
disposition of the Shares.
(c) Other than the Shares acquired in the Merger, Stone Pine
Colorado did not effect any transaction in the common stock of the Issuer during
the past sixty days.
(d), (e) Not applicable.
Item 6 Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
Not applicable.
<PAGE> 8
Item 7 Material to Be filed as Exhibits.
Exhibit 1 -- Agreement and Plan of Merger dated January
16, 1997 (Exhibits and Schedules omitted).
<PAGE> 9
Signature
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: January 28, 1997 STONE PINE COLORADO, LLC
By: /s/ J. Paul Bagley, III
_________________________________
Name: J. Paul Bagley, III
Title: Manager, Chairman of the
Board and Chief Executive
Officer
<PAGE> 10
Signature
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: January 28, 1997 STONE PINE CAPITAL, LLC
By: /s/ J. Paul Bagley, III
_________________________________
Name: J. Paul Bagley, III
Title: Manager
<PAGE> 11
Signature
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: January 28, 1997 STONE PINE ATLANTIC EQUITIES, LLC
By: /s/ J. Paul Bagley, III
_________________________________
Name: J. Paul Bagley, III
Title: Manager
<PAGE> 12
Signature
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: January 28, 1997 /s/ Thompson H. Rogers
________________________________
Thompson H. Rogers
<PAGE> 13
SCHEDULE A
TO
SCHEDULE 13D
MANAGER AND MEMBERS
OF STONE PINE COLORADO, LLC ("Stone Pine Colorado")
The individuals and entities named in Item 2(a) and the entities listed
below have business addresses of 410 17th Street, Suite 400, Denver, CO 80202.
For the individuals named in Item 2(a), the following table lists their present
principal occupation or employment, and for the entities named in Item 2(a),
the following table lists the principal business of each. Each of the following
is a citizen or business organized under the laws of the United States of
America. Stone Pine Colorado, LLC, Stone Pine Capital, LLC ("Stone Pine
Capital") and Stone Pine Atlantic Equities, LLC ("Stone Pine Atlantic") are
each organized under the laws of the State of Colorado.
<TABLE>
<CAPTION>
Name Principal Business/Present Occupation
- ---- -------------------------------------
<S> <C>
Stone Pine Colorado Investment related
Stone Pine Capital, Investment related
Member
Stone Pine Atlantic, Investment related
Member
Thompson H. Rogers, Member of Stone Pine Capital
Member Chairman of Affiliated
Holdings,Inc.
J. Paul Bagley, III Manager of Stone Pine Capital
Chairman of FCM Fiduciary
Capital Management Company
W. Duke DeGrassi President of FCM Fiduciary
Capital Management Company
</TABLE>
<PAGE> 1
EXHIBIT 1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of January 16, 1997
among CONSOLIDATED CAPITAL OF NORTH AMERICA, INC., a Colorado corporation
("Consolidated Capital"); CONSOLIDATED LAND & CATTLE COMPANY, a Colorado
corporation and a wholly owned subsidiary of Consolidated Capital
("Consolidated Acquisition"); MESSRS. RAYMOND E. MCELHANEY, BILL M. CONRAD and
RONALD R. MCGINNIS (each a "Management Shareholder" and collectively the
"Management Shareholders"); ANGELES ACQUISITION CORP., a Delaware corporation
("Angeles Acquisition"), which is the holder of 100% of the outstanding shares
of ANGELES METAL TRIM CO., a California corporation ("Angeles Metal") which in
turn owns 100% of the outstanding shares of CALIFORNIA BUILDING SYSTEMS, INC.,
a Nevada Corporation ("CBS"); and STONE PINE COLORADO, L.L.C., a Colorado
limited liability company ("Stone Pine").
W I T N E S S E T H:
WHEREAS, the Management Shareholders beneficially own 66.97%
of the outstanding shares of Consolidated Capital;
WHEREAS, the respective Boards of Directors of Consolidated
Capital, Consolidated Acquisition and Angeles Acquisition have approved the
merger of Consolidated Acquisition and Angeles Acquisition;
WHEREAS, to effect such transaction, the respective Boards of
Directors of Consolidated Capital, Consolidated Acquisition and Angeles
Acquisition, and Consolidated Capital acting as the sole shareholder of
Consolidated Acquisition and Stone Pine acting as the sole shareholder of
Angeles Acquisition, have approved the merger of Consolidated Acquisition and
Angeles Acquisition (the "Merger"), pursuant and subject to the terms and
conditions of this Agreement;
WHEREAS, the parties desire to make certain representations,
warranties and agreements in connection with the Merger and also to prescribe
various conditions to the Merger;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties agree
as follows:
<PAGE> 2
ARTICLE I
THE MERGER
1.1 THE MERGER. At the Effective Time (as hereinafter defined),
Consolidated Acquisition shall be merged with and into Angeles Acquisition
(Consolidated Acquisition and Angeles Acquisition are sometimes referred to
herein as the "Constituent Corporations"), the separate corporate existence of
Consolidated Acquisition shall cease and Angeles Acquisition shall continue as
the surviving corporation under the corporate name "Angeles Acquisition" (the
"Surviving Corporation") all upon the terms and subject to the conditions
provided for in this Agreement and pursuant to the Delaware General Corporation
Law (the "DGCL") and the Colorado Business Corporation Act (the "CBCA"). For
federal income tax purposes, it is intended that the Merger shall constitute a
reorganization within the meaning of Section 368 of the Internal Revenue Code
of 1986, as amended (the "Code").
1.2 CLOSING AND EFFECTIVE TIME. Subject to the provisions of this
Agreement, the parties shall hold a closing (the "Closing") on (i) the first
business day on which the last of the conditions set forth in Article V to be
fulfilled prior to the Closing is fulfilled or waived or (ii) such other date
as the parties hereto may agree (the "Closing Date"), at such time and place as
the parties hereto may agree. The Merger shall become effective upon the
filing of a Certificate of Merger with the Secretary of the State of Delaware
and the Secretary of State of the State of Colorado or at such later time on
the Closing Date as is provided in the Certificate of Merger (the "Effective
Time"). As a result of the Merger, Angeles Acquisition shall become a
wholly-owned subsidiary of Consolidated Capital.
1.3 EFFECTS OF THE MERGER. The Merger shall have the effects
specified in the DGCL and the CBCA and, at and after the Effective Time, the
Surviving Corporation shall possess all the rights, privileges, powers and
franchises, and be subject to all the restrictions, disabilities and duties of
each of the Constituent Corporations; and all singular rights, privileges,
powers and franchises of each of the Constituent Corporations, and all
property, real, personal and mixed, and all debts due to either of the
Constituent Corporations on whatever account, and all other things in action or
belonging to each of the Constituent Corporations, shall be vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest shall be thereafter the property
of the Surviving Corporation as they were of the Constituent Corporations; but
all rights of creditors and all liens upon any property of either of the
Constituent Corporations shall be preserved unimpaired, and all debts,
liabilities and duties of the Constituent Corporations shall thenceforth attach
to the Surviving Corporation, and may be enforced against it to the same extent
as if said debts and liabilities had been incurred by it.
1.4 CERTIFICATE OF INCORPORATION, BY-LAWS AND DIRECTORS AND
OFFICERS. The Certificate of Incorporation of the Surviving Corporation in
effect immediately prior to the Effective Time shall be and remain the
Certificate of Incorporation of the Surviving Corporation, until thereafter
amended in accordance with the provisions therein and as provided by the DGCL.
The By-Laws of the Surviving Corporation in effect immediately prior to the
Effective Time shall
-2-
<PAGE> 3
be the By-Laws of the Surviving Corporation until thereafter amended in
accordance with its terms. The initial directors and officers of the Surviving
Corporation shall be the directors and officers of the Surviving Corporation
immediately prior to the Effective Time, in each case until their successors
are duly elected and qualified.
1.5 CONVERSION AND CANCELLATION OF SHARES IN THE MERGER. As of
the Effective Time, by virtue of the Merger and without any action on the part
of Consolidated Capital, Consolidated Acquisition, Angeles Acquisition or the
holder of any shares of Consolidated Acquisition or Angeles Acquisition:
(a) CAPITAL STOCK OF CONSOLIDATED ACQUISITION. Each issued and
outstanding share of the capital stock of Consolidated Acquisition
shall be converted into and become one fully paid and nonassessable
share of Common Stock, par value $.01, of the Surviving Corporation.
(b) CAPITAL STOCK OF ANGELES ACQUISITION. Each issued and
outstanding share of the capital stock of Angeles Acquisition shall be
converted into the right to receive 86,380.03 shares of Common Stock,
par value $.0001 per share, of Consolidated Capital (the "Merger
Shares") with the result that after the Effective Time, Angeles
Acquisition will become a wholly owned subsidiary of Consolidated
Capital and Angeles Metal Trim will be a wholly owned subsidiary of
Angeles Acquisition. All such converted shares of Angeles Acquisition
shall no longer be outstanding and shall automatically be canceled and
retired and shall cease to exist, and each holder of a certificate
representing any such shares shall cease to have any rights with
respect thereto, except the right to receive the Merger Shares.
1.6 STOCK ISSUANCE. Contemporaneously with the Closing,
Consolidated Capital shall issue and sell 5,496,911 shares of Common Stock of
Consolidated Capital (the "Investor Shares").
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF CONSOLIDATED CAPITAL AND
CONSOLIDATED ACQUISITION. Consolidated Capital, Consolidated Acquisition and
the Management Shareholders jointly and severally represent and warrant to
Angeles Acquisition as follows:
(a) ORGANIZATION, STANDING AND POWER. (i) Consolidated Capital
is a corporation duly organized, validly existing and in good standing
under the laws of the State of Colorado, has all requisite power and
authority to own, lease and operate its properties and to carry on its
business as now being conducted, and is duly qualified and in good
standing to do business in each jurisdiction in which the nature of
its business or the ownership or leasing of its properties makes such
qualification necessary other than in
-3-
<PAGE> 4
such jurisdictions where the failure so to qualify would not have a
material adverse affect on Consolidated Capital and the Consolidated
Entities (as hereinafter defined) taken as a whole.
(ii) Schedule 2.1(a) hereto lists each of the direct and indirect
subsidiaries of Consolidated Capital and each association,
partnership, joint venture, limited liability company or other entity
in which Consolidated Capital has an interest, either of record,
beneficially or equitably along with a description of the interest
held by Consolidated Capital in such entity (individually, a
"Consolidated Entity" and together, the "Consolidated Entities"). All
shares of capital stock or ownership interests of each Consolidated
Entity held by Consolidated Capital or another Consolidated Entity
have been duly authorized, are fully paid and nonassessable, and are
lawfully owned of record and beneficially by Consolidated Capital or
another Consolidated Entity free and clear of all pledges, liens,
claims, security interests and other charges or defects in title of
any nature whatsoever.
(iii) Each Consolidated Entity is duly organized, validly existing,
in good standing and qualified to do business in each jurisdiction in
which the nature of its business or the ownership or leasing of its
properties makes such qualification necessary other than in such
jurisdictions where the failure so to qualify would not have a
material adverse effect on Consolidated Capital and the Consolidated
Entities taken as a whole.
(b) CAPITAL STRUCTURE. The authorized capital stock of
Consolidated Capital consists of 50,000,000 shares of Common Stock,
par value $.0001 per share and 10,000,000 shares of Preferred Stock,
par value $.01 per share. As of the close of business on December 31,
1996, 1,570,546 shares of Consolidated Capital Common Stock were
outstanding; no shares of Consolidated Capital Common Stock were held
by Consolidated Capital in its treasury, and no shares of Consolidated
Capital Preferred Stock were issued or outstanding. All outstanding
shares of Consolidated Capital Common Stock are, and the Merger Shares
to be issued pursuant to this Agreement will be when issued pursuant
to the terms of the resolution of the Board of Directors of
Consolidated Capital approving such issuance, validly issued, fully
paid and nonassessable and not subject to preemptive rights. All of
the issued and outstanding shares of Consolidated Capital Common Stock
were issued in compliance with all Federal and state securities laws.
Except for options described in Schedule 2.1(b) hereto, there are no
options, warrants, calls, agreements or other rights to purchase or
otherwise acquire from Consolidated Capital at any time, or upon the
happening of any stated event, any shares of the capital stock of
Consolidated Capital or any Consolidated Entity, whether or not
presently issued or outstanding.
(c) CERTIFICATE OF INCORPORATION, BY-LAWS, AND MINUTE BOOKS. The
copies of the Certificate of Incorporation and of the By-Laws of
Consolidated Capital and Consolidated Acquisition and the
organizational documents of each Consolidated Entity which have been
delivered to Angeles Acquisition are true, correct and complete copies
thereof. The minute books of Consolidated Capital and Consolidated
Acquisition which have been
-4-
<PAGE> 5
made available for inspection contain accurate minutes of all meetings
and accurate consents in lieu of meetings of the Board of Directors
(and any committee thereof) and of the shareholders of Consolidated
Capital and Consolidated Acquisition since the respective dates of
incorporation and accurately reflect all transactions referred to in
such minutes and consents in lieu of meetings.
(d) AUTHORITY. (i) Consolidated Capital and Consolidated
Acquisition have all requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the
Boards of Directors of Consolidated Capital and Consolidated
Acquisition and Consolidated Capital as the sole shareholder of
Consolidated Acquisition. No other corporate or shareholder
proceedings on the part of Consolidated Capital or Consolidated
Acquisition are necessary to authorize the Merger, the sale of assets
pursuant to the Asset Agreement (as herein defined) or the other
transactions contemplated hereby.
(ii) Each of the Management Shareholders has the capacity, power,
authority and legal right to execute, deliver and perform this
Agreement.
(iii) This Agreement has been duly executed and delivered by
Consolidated Capital, Consolidated Acquisition and each of the
Management Shareholders and constitutes a valid and binding obligation
of each of them enforceable in accordance with its terms.
(e) CONFLICT WITH OTHER AGREEMENTS; APPROVALS. The execution and
delivery of this Agreement and the Asset Agreement does not, and the
consummation of the transactions contemplated hereby will not result
in any violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or the loss of a
material benefit under, or the creation of a lien, pledge, security
interest or other encumbrance on assets (any such conflict, violation,
default, right of termination, cancellation or acceleration, loss or
creation, a "Violation") pursuant to any provision of the Certificate
of Incorporation or By-laws or any organizational document of
Consolidated Capital or any Consolidated Entity or, result in any
Violation of any loan or credit agreement, note, mortgage, indenture,
lease, benefit plan or other agreement, obligation, instrument,
permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Consolidated
Capital or any Consolidated Entity or their respective properties or
assets which Violation would have a material adverse effect on
Consolidated Capital and the Consolidated Entities taken as a whole.
No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality,
domestic or foreign (a "Governmental Entity") is required by or with
respect to Consolidated Capital or any Consolidated Entity in
connection with the execution and delivery of this Agreement by
Consolidated Capital and Consolidated Acquisition or the consummation
by Consolidated Capital and Consolidated Acquisition of the
transactions contemplated hereby, the failure to obtain
-5-
<PAGE> 6
which would have a material adverse effect on Consolidated Capital and
the Consolidated Entities, taken as a whole, except for (i) the filing
of such documents with, and the obtaining of such orders from, the
Securities and Exchange Commission (the "SEC"), the various state
authorities, including state securities authorities, that are required
in connection with the transactions contemplated by this Agreement;
and (ii) the filing of Certificates of Merger with the Secretary of
State of Delaware and the Secretary of State of Colorado.
(f) SEC DOCUMENTS. Consolidated Capital has furnished Angeles
Acquisition with a true and complete copy of each report, schedule,
registration statement and definitive proxy statement filed by
Consolidated Capital with the SEC since January 1, 1995 (as such
documents have since the time of their filing been amended, the
"Consolidated Capital SEC Documents") and since that date Consolidated
Capital has filed with the SEC all documents required to be filed
pursuant to Section 15(d) of the Exchange Act of 1934, as amended (the
"Exchange Act"). As of their respective dates, the Consolidated
Capital SEC Documents complied in all material respects with the
requirements of the Securities Act of 1933, as amended (the
"Securities Act"), or the Exchange Act, as the case may be, and the
rules and regulations of the SEC thereunder applicable to such
Consolidated Capital SEC Documents, and none of the Consolidated
Capital SEC Documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
financial statements of Consolidated Capital included in the
Consolidated Capital SEC Documents comply as to form in all material
respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto, are
accurate, complete and in accordance with the books and records of
Consolidated Capital, have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis during
the periods involved (except as may be indicated in the notes thereto
or, in the case of the unaudited statements, as permitted by Form 10-Q
of the SEC) and fairly present (subject, in the case of the unaudited
statements, to normal, recurring audit adjustments) the consolidated
financial position of Consolidated Capital as at the dates thereof and
the consolidated results of its operations and cash flows for the
periods then ended.
(g) BOOKS AND RECORDS. Consolidated Capital has made and will
make available for inspection by Angeles Acquisition upon reasonable
request all the books of Consolidated Capital and the Consolidated
Entities, relating to the business of Consolidated Capital and the
Consolidated Entities. Such books of Consolidated Capital and the
Consolidated Entities have been maintained in the ordinary course of
business. All documents furnished or caused to be furnished to
Angeles Acquisition by Consolidated Capital are true and correct
copies, and there are no amendments or modifications thereto except as
set forth in such documents.
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(h) COMPLIANCE WITH LAWS. Consolidated Capital and the
Consolidated Entities are and have been in compliance in all material
respects with all laws, regulations, rules, orders, judgments, decrees
and other requirements and policies imposed by any Governmental Entity
applicable to it, its properties or the operation of its businesses.
(i) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in
the Consolidated Capital SEC Documents filed prior to the date of this
Agreement or in the audited consolidated balance sheets of
Consolidated Capital and the related consolidated statements of
income, cash flows and changes in shareholders' equity as of and for
the period ended December 31, 1995 (the "Consolidated Capital 1995
Financials"), true and correct copies of which have been delivered to
Angeles Acquisition, or except as contemplated by this Agreement or
the Asset Agreement or except as set forth on Schedule 2.1(i), since
the date of the Consolidated Capital 1995 Financials, Consolidated
Capital and the Consolidated Entities have conducted their respective
businesses only in the ordinary course, and, as of the date of this
Agreement, there has not been (i) any material adverse change, alone
or in the aggregate, in the business, assets, liabilities, condition
(financial or otherwise), results of operations or prospects of
Consolidated Capital or any Consolidated Entity; or (ii) any
declaration, setting aside or payment of any dividend or other
distribution (whether in cash, stock or property) with respect to any
of Consolidated Capital's capital stock.
(j) NOTES RECEIVABLE. The notes receivable of Consolidated
Capital as set forth on the consolidated balance sheet of Consolidated
Capital and the related consolidated statements of income, cash flows
and changes in shareholders' equity as of and for the period ended
September 30, 1996 (the "Consolidated Capital Interim Financial
Statements") or arising since the date thereof are valid and genuine;
are not subject to valid defenses, set-offs or counterclaims. All
currently outstanding notes receivable of Consolidated Capital are
listed on Schedule 2.1(j).
(k) LIABILITIES AND OBLIGATIONS. None of Consolidated Capital or
the Consolidated Entities have any material liabilities or obligations
(direct or indirect, contingent or otherwise) except (i) liabilities
that are reflected and reserved against on the Consolidated Capital
Interim Financial Statements that have not been paid or discharged
since the date thereof and (ii) liabilities incurred since September
30, 1996 in the ordinary course of business consistent with past
practice and in accordance with this Agreement.
(l) LITIGATION. There is no suit, action or proceeding pending,
or, to the knowledge of Consolidated Capital, threatened against or
affecting Consolidated Capital or any Consolidated Entity which is
reasonably likely to have a material adverse effect on Consolidated
Capital or any Consolidated Entity, nor is there any judgment, decree,
injunction, rule or order of any Governmental Entity or arbitrator
outstanding against Consolidated Capital or any Consolidated Entity
having, or which, insofar as reasonably can be foreseen, in the future
could have, any such effect.
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<PAGE> 8
(m) TAXES. Each of Consolidated Capital and the Consolidated
Entities has filed or will file within the time prescribed by law and
(including extension of time approved by the appropriate taxing
authority) all tax returns and reports required to be filed with the
United States Internal Revenue Service and with all other
jurisdictions where such filing is required by law; and Consolidated
Capital and the Consolidated Entities have paid, or have made adequate
provision in the Consolidated Capital Interim Financial Statements for
the payment of all taxes, interest, penalties, assessments or
deficiencies shown due and payable on, and with respect to all periods
ending prior to September 30, 1996. Consolidated Capital knows of (i)
no other tax returns or reports which are required to be filed which
have not been so filed and (ii) no unpaid assessment for additional
taxes for any fiscal period or any basis therefor.
(n) ASSETS. Consolidated Capital and the Consolidated Entities
have good and marketable title to all their real and personal
properties and assets reflected in the Consolidated Capital Interim
Financial Statements free and clear of all mortgages, liens, pledges,
charges or encumbrances or other third party interests of any nature
whatsoever, except (i) as otherwise disclosed in the Consolidated
Capital Interim Financial Statements, (ii) the lien of current taxes
not yet due and payable, (iii) properties, interests, and assets
disposed of by Consolidated Capital or any Consolidated Entity since
September 30, 1996 solely in the ordinary course of business
consistent with past practice other than pursuant to the Asset
Agreement and (iv) such imperfections of title, easements and
encumbrances, if any, as are not substantial in character, amount or
extent and do not materially detract from the value, or interfere with
the present or proposed use, of the properties subject thereto.
(o) CONTRACTS. All written or oral contracts, agreements, loan
agreements, leases, mortgages or commitments ("Contracts"), excluding
Contracts involving payments of less than $10,000 over the term
thereof, to which Consolidated Capital or any Consolidated Entity is a
party or may be bound and which cannot be terminated by Consolidated
Capital or any Consolidated Entity without penalty within 30 days
after written notice are listed on Schedule 2.1(o). Except as
described in Schedule 2.1(o) hereto, all Contracts are valid and in
full force and effect on the date hereof, and neither Consolidated
Capital nor any Consolidated Entity has violated any provision of, or
committed or failed to perform any act which with notice, lapse of
time or both would constitute a default under the provisions of, any
Contract, the termination or violation of which might have a
materially adverse effect upon the business, assets, liabilities,
condition (financial or otherwise), results of operations or prospects
of Consolidated Capital or any Consolidated Entity. True and complete
copies of all Contracts, together with all amendments thereto,
disclosed in Schedule 2.1(o) have been delivered to Angeles
Acquisition or made available for inspection. Schedule 2.1(o)
identifies all Contracts which require the consent or approval of
third parties to the execution and delivery of this Agreement or to
the consummation and performance of the transactions contemplated
hereby.
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<PAGE> 9
(p) BENEFIT PLANS. Schedule 2.1(p) hereto lists all employee
benefit plans, contracts, agreements or arrangements sponsored,
maintained or contributed to by Consolidated Capital or any
Consolidated Entity (collectively, the "Consolidated Capital Employee
Benefit Plans"). Neither Consolidated Capital nor any Consolidated
Entity has incurred any obligation to contribute any material amount
to any multi-employer plan, as defined in Section 3(37) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA");
neither Consolidated Capital nor any Consolidated Entity has incurred
any material liability under Title IV of ERISA arising in connection
with the termination of, or complete or partial withdrawal from, any
plan covered or previously covered by Title IV of ERISA, and each
Consolidated Capital Employee Benefit Plan is in compliance with all
applicable laws and regulations in all material respects.
(q) LICENSES, PERMITS; INTELLECTUAL PROPERTY (i) Consolidated
Capital and each Consolidated Entity own or possess in the operation
of their business all material franchises, licenses, permits,
consents, approvals, rights, waivers and other authorizations,
governmental or otherwise ("Authorization"), which are necessary for
them to conduct their business as now conducted. Neither Consolidated
Capital nor any Consolidated Entity is in material default, or has
received any notice of any claim of default, with respect to any such
Authorization or any notice of any other claim or proceeding or
threatened proceeding relating to any such Authorization or claimed
lack of any necessary Authorization. Except as described in Schedule
2.1(q), neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby will require any
notice or consent under or have any material adverse effect upon any
such Authorization.
(ii) Consolidated Capital does not hold or use any patents or use any
trade names, trademarks, servicemarks.
(r) ENVIRONMENTAL MATTERS. To the knowledge of Consolidated
Capital:
(i) Except as set forth on Schedule 2.1(r), Consolidated Capital
and the Consolidated Entities are in compliance with all Environmental
Laws (as defined below);
(ii) Except as set forth on Schedule 2.1(r), Consolidated Capital
has no knowledge of an existing or potential Environmental Claim (as
defined below), nor has Consolidated Capital or any Consolidated
Entity received any notification or knowledge of alleged, actual or
potential responsibility for, or any inquiry or investigation
regarding, any disposal, release, or threatened release at any
location of any Hazardous Substance (as defined below) stored,
generated or transported by Consolidated Capital or any Consolidated
Entity.
(iii) Except as set forth on Schedule 2.1(r), (x) no underground
tank or other underground storage receptacle for Hazardous Substances
has leaked from any underground tank or related piping at any time;
and (y) there have been no releases of
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<PAGE> 10
Hazardous Substances by Consolidated Capital or any Consolidated
Entity on, upon or into any properties of Consolidated Capital or any
Consolidated Entity.
(iv) Except as set forth on Schedule 2.1(r), there are no PCBs or
asbestos located at or on any owned or leased property of Consolidated
Capital or any Consolidated Entity.
(v) No environmental lien has attached to any real property owned
or leased by Consolidated Capital or any Consolidated Entity.
(vi) Definitions. For purposes of this Agreement, "Environmental
Laws" shall mean all federal, state, district, local, and foreign
laws, all rules or regulations promulgated thereunder, and all orders,
consent orders, judgments, notices, permits, or demand letters issued,
promulgated, or entered pursuant thereto, relating to pollution or
protection of the environment (including without limitation ambient
air, surface water, ground water, land surface, or subsurface strata),
including without limitation (x) laws relating to emissions,
discharges, releases, or threatened releases of pollutants,
contaminants, chemicals, materials, wastes or other substances into
the environment and (y) laws relating to the identification,
generation, manufacture, processing, distribution, use, treatment,
storage, disposal, recovery, transport, or other handling of
pollutants, contaminants, chemicals, industrial materials, wastes, or
other substances.
For purposes of this Agreement, "Environmental Claims" shall mean all
accusations, allegations, notice of violations, liens, claims,
demands, suits, or causes of action or any damage, including without
limitation, personal injury, property damage (including any
depreciation of property values), lost use of property, or
consequential damages, arising directly or indirectly out of
Environmental Conditions or Environmental Laws.
For purposes of this Agreement, "Environmental Conditions" shall mean
the state of the environment, including natural resources (e.g., flora
and fauna), soil, surface water, ground water, any present or
potential drinking water supply, subsurface strata, or ambient air,
relating to or arising out of the use, handling, storage, treatment,
recycling, generation, transportation, release, spilling, leaking,
pumping, pouring, emptying, discharging, injecting, escaping,
leaching, disposal, dumping, or threatened release of Hazardous
Substances by any Consolidated Entity or its predecessors or such
predecessors in interest, agents, representatives, employees, or
independent contractors.
For purposes of this Agreement, "Hazardous Substances" shall mean all
pollutants, contaminants, chemicals, wastes, and any other
carcinogenic, ignitable, corrosive, reactive, toxic, or otherwise
hazardous substances or materials (whether solids, liquids or gases),
including but not limited to any substances, materials, or wastes
subject to regulation, control, or remediation under Environmental
Laws.
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<PAGE> 11
(s) INTERIM OPERATIONS OF CONSOLIDATED ACQUISITION Consolidated
Acquisition has engaged in no other business activities and has
conducted its operations only as contemplated hereby.
(t) TRANSACTIONS AND AFFILIATES. Except as described in Schedule
2.1(t) or the Consolidated Capital SEC Documents, no director or
officer of Consolidated Capital or any member of his or her immediate
family, is a party to any Contract or other business arrangement or
relationship of any kind with Consolidated Capital or any Consolidated
Entity or, except for the ownership of not more than 1% of the stock
of a company having a class of securities registered pursuant to the
Exchange Act, has an ownership interest in any business, corporate or
otherwise, which is a party to, or in any property which is the
subject of, business arrangements or relationships of any kind with
Consolidated Capital or any Consolidated Entity.
(u) BROKERAGE. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection
with the Merger based upon arrangements made by or on behalf of
Consolidated Capital or Consolidated Acquisition.
2.2 REPRESENTATIONS AND WARRANTIES OF ANGELES ACQUISITION.
Angeles Acquisition and Stone Pine represent and warrant to Consolidated
Capital and Consolidated Acquisition as follows:
(a) ORGANIZATION, STANDING AND POWER. (i) Angeles Acquisition is
a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, has all requisite power and
authority to own, lease and operate its properties and to carry on its
business as now being conducted, and is duly qualified and in good
standing to do business in each jurisdiction in which the nature of
its business or the ownership or leasing of its properties makes such
qualification necessary other than in such jurisdiction where the
failure so to qualify would not have a material adverse effect on
Angeles Acquisition and the Angeles Entities (as hereinafter defined)
taken as a whole.
(ii) Schedule 2.2(a) hereto lists each of the direct and indirect
subsidiaries of Angeles Acquisition and each association, partnership,
joint venture, limited liability company or other entity in which
Angeles Acquisition has an interest, either of record, beneficially or
equitably, including Angeles Metal Trim, along with a description of
the interest held by Angeles Acquisition in such entity (individually,
an "Angeles Entity" and together, the "Angeles Entities"). All shares
of capital stock or ownership interests of each Angeles Entity held by
Angeles Acquisition or another Angeles Entity have been duly
authorized, are fully paid and nonassessable, and, are lawfully owned
of record and beneficially by Angeles Acquisition or another Angeles
Entity free and clear of all pledges, liens, claims, security
interests and other charges or defects in title of any nature
whatsoever.
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<PAGE> 12
(iii) Each Angeles Entity is duly organized, validly existing, in
good standing and qualified to do business in each jurisdiction in
which the nature of its business or the ownership or leasing of its
properties makes such qualification necessary other than in such
jurisdictions where the failure so to qualify would not have a
material adverse effect on Angeles Acquisition and the Angeles
Entities taken as a whole.
(b) CAPITAL STRUCTURE. The authorized capital stock of Angeles
Acquisition consists of 2,500 shares of Common Stock, no par value.
As of the close of business on December 31, 1996, 100 shares of
Angeles Acquisition Common Stock were outstanding and no shares of
Angeles Common Stock were held by Angeles Acquisition in treasury.
All outstanding shares of Angeles Acquisition Common Stock are validly
issued, fully paid and nonassessable and not subject to preemptive
rights or other restrictions on transfer. All of the issued and
outstanding shares of Angeles Acquisition Common Stock were issued in
compliance with all Federal and State Securities Laws. There are no
options, warrants, calls, agreements or other rights to purchase or
otherwise acquire from Angeles Acquisition at any time, or upon the
happening of any stated event, any shares of the capital stock of
Angeles Acquisition or any Angeles Entity, whether or not presently
issued or outstanding.
(c) CERTIFICATE OF INCORPORATION, BY-LAWS, AND MINUTE BOOKS. The
copies of the Certificate of Incorporation and of the By-Laws of
Angeles Acquisition and each Angeles Entity which have been delivered
to Consolidated Capital are true, correct and complete copies thereof.
The minute books of Angeles Acquisition and each Angeles Entity which
have been made available for inspection contain accurate minutes of
all meetings and accurate consents in lieu of meetings of the Board of
Directors (and any committee thereof) and of the shareholders of
Angeles Acquisition and each Angeles Entity since the respective dates
of incorporation and accurately reflect all transactions referred to
in such minutes and consents in lieu of meetings.
(d) AUTHORITY. (i) Angeles Acquisition has all requisite power
and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the Board of Directors and sole
shareholder of Angeles Acquisition, and no other corporate or
shareholder proceedings on the part of Angeles Acquisition are
necessary to authorize the Merger and the other transactions
contemplated hereby. This Agreement has been duly executed and
delivered by Angeles Acquisition and constitutes a valid and binding
obligation of Angeles Acquisition enforceable in accordance with its
terms.
(ii) Stone Pine has all requisite power and authority to enter into
this Agreement and this Agreement constitutes a valid and binding
obligation of Stone Pine enforceable in accordance with its terms.
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<PAGE> 13
(e) CONFLICT WITH AGREEMENTS; APPROVALS. The execution and
delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, conflict with, or result in
any Violation pursuant to any provision of the Certificate of
Incorporation or By-laws of Angeles Acquisition or any Angeles Entity
or, except as set forth on Schedule 2.2(e) hereto, result in any
Violation of any loan or credit agreement, note, mortgage, indenture,
lease, benefit plan or other agreement, obligation, instrument,
permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Angeles
Acquisition or any Angeles Entity or their respective properties or
assets which Violation would have a material adverse effect on Angeles
Acquisition and the Angeles Entities taken as a whole. Except as set
forth on Schedule 2.2(e) hereto, no consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to Angeles
Acquisition or any Angeles Entity in connection with the execution and
delivery of this Agreement by Angeles Acquisition or the consummation
by Angeles Acquisition of the transactions contemplated hereby, the
failure to obtain which would have a material adverse effect on
Angeles Acquisition and the Angeles Entities taken as a whole except
for the filing of Certificates of Merger with the Secretary of State
of Delaware and the Secretary of State of Colorado.
(f) FINANCIAL STATEMENTS. Angeles Acquisition has furnished
Consolidated Capital with reviewed consolidated balance sheets of
Angeles Metal Trim as at December 31, 1995 (the "Angeles Metal 1995
Financials"), December 31, 1994, and December 31, 1993, respectively,
and the related statements of income and cash flows for the periods
then ended, accompanied by the report of Grant Thorton, along with an
unaudited balance sheet of Angeles Metal Trim as of November 30, 1996,
and the related unaudited statements of income and cash flows for the
period then ended (the "Angeles Metal Interim Financial Statements").
The Angeles Metal 1995 Financials including the footnotes thereto,
except as indicated therein, have been prepared as set forth in the
report of the auditors which is a part of the same. The Angeles Metal
Financials as of December 31, 1995, 1994 and 1993 and the Angels Metal
Interim Financial Statements are substantially complete and correct in
all material respects and fairly present in all material respects the
financial condition and results of the operations of Angeles Metal and
the changes in its financial position at such dates and for such
periods and show all material liabilities absolute or contingent of
Angeles Metal. Notwithstanding anything in this Agreement to the
contrary, Angeles Acquisition makes no representations or warranties
to Consolidated Capital as to the adequacy or sufficiency of any
reserves set forth in the Angeles Metal 1995 Financials.
(g) BOOKS AND RECORDS. Angeles Acquisition has made and will make
available for inspection by Consolidated Capital upon reasonable
request all the books of account, relating to the business of the
Angeles Entities. Such books of account of the Angeles Entities have
been maintained in the ordinary course of business. All documents
furnished or caused to be furnished to Consolidated Capital by Angeles
Acquisition are
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<PAGE> 14
true and correct copies, and there are no amendments or modifications
thereto except as set forth in such documents.
(h) COMPLIANCE WITH LAWS. Angeles Acquisition and the Angeles
Entities are and have been in compliance in all material respects with
all laws, regulations, rules, orders, judgments, decrees and other
requirements and policies imposed by any Governmental Entity
applicable to it, its properties or the operation of its businesses.
(i) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in
the Angeles Metal 1995 Financials or except as contemplated by this
Agreement, the Angeles Metal Trim Purchase Agreement (as herein
defined) or as set forth on Schedule 2.2(i), since the date of the
Angeles Metal 1995 Financials, Angeles Metal has conducted its
business only in the ordinary course, and, as of the date of this
Agreement, there has not been (i) any material adverse change, alone
or in the aggregate, in the business, assets, liabilities, condition
(financial or otherwise), results of operations or prospects; or (ii)
any declaration, setting aside or payment of any dividend or other
distribution (whether in cash, stock or property) with respect to any
of Angeles Metal's capital stock.
(j) ACCOUNTS RECEIVABLE. The accounts receivable appearing on the
Angeles Metal Interim Balance Sheet and all accounts receivable
created since that date represent valid obligations (subject to the
effects of bankruptcy, insolvency, reorganization or other similar
laws affecting the rights of creditors generally) owing to Angeles
Metal, subject to the reserve for doubtful accounts appearing on the
Angeles Metal Interim Balance Sheet which reserve may be adjusted for
the passage of time through the Effective Time in accordance with the
past custom and practice of Angeles Metal.
(k) INVENTORY. The values at which the inventories of Angeles
Metal Trim and CBS as shown on the Angeles Metal Interim Financial
Statements have been determined in accordance with the normal
valuation policy of Angeles Metal Trim and CBS, consistently applied.
All inventory of each of Angeles Metal Trim and CBS, whether reflected
in the Angeles Metal Interim Financial Statements or otherwise,
consists of a quality and quantity usable and saleable in the ordinary
course of business except for items of obsolete materials and
materials of below standard quality, all of which have been written
down in the Angeles Metal Interim Financial Statements to realizable
market value or for which reasonably adequate reserves have been
provided therein. Except as specifically indicated in the Angeles
Metal Interim Financial Statements, the present quantities of all
inventory of the Angeles Metal Trim and CBS are reasonable and
warranted in the present circumstances of the business of the Angeles
Metal Trim and CBS.
(l) LIABILITIES AND OBLIGATIONS. None of Angeles Acquisition or
the Angeles Entities have any material liabilities or obligations
(absolute, accrued, contingent or otherwise) except (i) those
liabilities incurred in connection with the transaction contemplated
by the Angeles Metal Trim Purchase Agreement, (ii) liabilities that
are reflected and reserved
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<PAGE> 15
against on the Angeles Metal Interim Financial Statements that have
not been paid or discharged since the date thereof and (iii)
liabilities incurred since November 30, 1996 in the ordinary course of
business consistent with past practice and in accordance with this
Agreement.
(m) LITIGATION. Except as described in Schedule 2.2(m), there is
no suit, action or proceeding pending, or, to the knowledge of Angeles
Acquisition, threatened against or affecting Angeles Acquisition or
any Angeles Entity which is reasonably likely to have a material
adverse effect on Angeles Acquisition or any Angeles Entity, nor is
there any judgment, decree, injunction, rule or order of any
Governmental Entity or arbitrator outstanding against Angeles
Acquisition or any Angeles Entity having, or which, insofar as
reasonably can be foreseen, in the future could have, any such effect.
(n) TAXES. Each of the Angeles Entities has filed or will file
within the time prescribed by law (including extension of time
approved by the appropriate taxing authority) all tax returns and
reports required to be filed with the United States Internal Revenue
Service and with all other jurisdictions where such filing is required
by law; and the Angeles Entities have paid, or have made adequate
provision in the Angeles Metal Interim Financial Statements for the
payment of all taxes, interest, penalties, assessments or deficiencies
due and payable on, and with respect to all periods ending prior to
September 30, 1996. Angeles Acquisition knows of (i) no other tax
returns or reports which are required to be filed which have not been
so filed and (ii) no unpaid assessment for additional taxes for any
fiscal period or any basis therefor.
(o) ASSETS. Except as described in Schedule 2.2(o), the Angeles
Entities have good and marketable title to all their real and personal
properties and assets reflected in the Angeles Metal Interim Financial
Statements free and clear of all mortgages, liens, pledges, charges or
encumbrances or other third party interests of any nature whatsoever,
except (i) the lien of current taxes not yet due and payable, (ii)
properties, interests, and assets disposed of by Angeles Metal Trim or
any Angeles Entity since November 30, 1996 solely in the ordinary
course of business consistent with past practice and (iii) such
imperfections of title, easements and encumbrances, if any, as are not
substantial in character, amount or extent and do not materially
detract from the value, or interfere with the present or proposed use,
of the properties subject thereto.
(p) CONTRACTS. All Contracts, excluding purchase or sales orders
placed in the ordinary course of business and other Contracts
involving payments of less than $10,000 over the term thereof, to
which Angeles Acquisition or any Angeles Entity is a party or may be
bound and which cannot be terminated by Angeles Acquisition or any
Angeles Entity without penalty within 30 days after written notice are
listed on Schedule 2.2(p). Except as described in Schedule 2.2(p)
hereto, all Contracts are valid and in full force and effect on the
date hereof, and neither Angeles Acquisition nor any Angeles Entity
has violated any provision of, or committed or failed to perform any
act which with notice, lapse of time or both would constitute a
default under the provisions of, any Contract, the
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termination or violation of which might have a materially adverse
effect upon the business, assets, liabilities, condition (financial or
otherwise), results of operations or prospects of Angeles Acquisition
or any Angeles Entity. True and complete copies of all Contracts,
together with all amendments thereto, disclosed in Schedule 2.2(p)
have been delivered to Consolidated Capital or made available for
inspection. Schedule 2.2(p) identifies all Contracts which require the
consent or approval of third parties to the execution and delivery of
this Agreement or to the consummation and performance of the
transactions contemplated hereby.
(q) BENEFIT PLANS. Schedule 2.2(q) hereto lists all employee
benefit plans, contracts, agreements or arrangements sponsored,
maintained or contributed to by any Angeles Entity (collectively, the
"Angeles Employee Benefit Plans"). Neither Angeles nor any Angeles
Entity has incurred any obligation to contribute any material amount
to any multi-employer plan, as defined in Section 3(37) of ERISA;
neither Angeles nor any Angeles Entity has incurred any material
liability under Title IV of ERISA arising in connection with the
termination of, or complete or partial withdrawal from, any plan
covered or previously covered by Title IV of ERISA, and each Angeles
Employee Benefit Plan is in compliance with all applicable laws and
regulations in all material respects.
(r) LICENSES, PERMITS; INTELLECTUAL PROPERTY. Angeles
Acquisition and each Angeles Entity owns or possesses in the operation
of their business all material Authorizations which are necessary for
them to conduct their business as now conducted. Neither Angeles
Acquisition nor any Angeles Entity is in material default, or has
received any notice of any claim of default, with respect to any such
Authorization or any notice of any other claim or proceeding or
threatened proceeding relating to any such Authorization or claimed
lack of any necessary Authorization. Except as described in Schedule
2.2(r), neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby will require any
notice or consent under or have any material adverse effect upon any
such Authorization.
(ii) Set forth in Schedule 2.2(r) is a list of the material
domestic and foreign patents, patent applications, patent licenses,
software, corporate or other names, trade names, trademarks, service
marks, trademark registrations and applications, service mark
registrations and applications, copyright registrations and
applications licensed or owned by the Angeles Entities, (collectively
the "Intellectual Property"). Schedule 2.2(r) sets forth any
Intellectual Property licenses from the Angeles Entities to third
parties. Except for the trade names "Gripper," "Stitcher" and
"Driller", which one Douglas Cable has the right to use, unless
otherwise indicated in Schedule 2.2(r), the Angeles Entities own the
entire right, title and interest in and to the Intellectual Property
and each item constituting part of the Intellectual Property has been,
to the extent indicated in Schedule 2.2(r), duly registered with,
filed in or issued by, as the case may be, the United States Patent
and Trademark Office or such other government entity, domestic or
foreign, as is indicated in Schedule 2.2(r) and, to the knowledge of
Angeles Acquisition, such registrations, filings and issuances remain
in full force and effect and there are no pending proceedings
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or litigation or other adverse claims made in writing affecting or
with respect to the Intellectual Property.
(s) ENVIRONMENTAL MATTERS. To the knowledge of Angeles Acquisition
Co.:
(i) All underground storage tanks have been removed from the
premises leased to an Angeles Entity by D.K. Cable (the "Cable
Premises").
(ii) No Angeles Entity has received any actual written notification
of any investigation regarding any disposal, release or threatened
release at any of the Cable Premises of any Hazardous Substances
stored, generated or transported by the Angeles Entities.
(iii) The Angeles Entities in the ordinary course of their business
utilize petroleum products and generate waste water in the
manufacturing process at the Cable Premises in accordance with
applicable governmental permits issued therefore.
(iv) Except as set forth on Schedule 2.2(s), there are no PCBs or
asbestos located at or on the Premises or any other owned or leased
property of the Angeles Entities.
(v) No environmental lien has attached to any real property owned
or leased the Angeles Entities.
(t) REAL PROPERTY. (i) Schedule 2.2(t) constitutes a true and
complete list of all real property owned or leased by any Angeles
Entity or to which any Angeles Entity may have any ownership or
leasehold rights (the "Premises"). With respect to the Premises, all
appurtenant rights, privileges and easements belonging or appertaining
thereto and all buildings, structures and improvements thereon:
(w) except for the matter set forth on Schedule 2.2(t)
hereto, no person, firm or corporation other than any Angeles Entity
has any rights, (including rights arising under an installment
contract, option to purchase, easement, right of way, or otherwise)
with respect to the Premises or any part or parts thereof;
(x) except for the matter set forth on Schedule 2.2(t)
hereto, no person, firm or corporation other than any Angeles Entity
has any rights, (including rights arising under an installment
contract, option to purchase, easement, right of way, or otherwise)
with respect to the Premises or any part or parts thereof;
(y) each of the buildings and other improvements constituting
part of the Premises is of reasonably sound structural integrity and
is able and adequate for its intended purpose and to conduct Angeles
Business as it is now being conducted; and
(z) the present zoning for the City of Commerce property is
C-M.
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(ii) Schedule 2.2(t) contains a list of all real property leases to
which any Angeles Entity is a party (the "Scheduled Leases"). The
Scheduled Leases are (x) in full force and effect and no Angeles
Entity has received any notice of default and does not possess any
knowledge of or notice of a material event, occurrence, condition or
act (including the entering into of this Agreement) which, with the
giving of notice, the lapse of time or the happening of any further
event or condition, would become a default by the Angeles Entity
pursuant to the terms of the Scheduled Leases; and (y) all rents and
additional rents due to date on each Scheduled Lease have been paid.
To the knowledge of Angeles Acquisition, the property subject to the
Scheduled Leases are not subject to any immediate eminent domain
proceeding.
(iii) There are no restrictions respecting availability of public
utilities, including, but not limited to, sewer, gas and electricity
and the Premises are served by all such utilities; all payments,
assessments, deposits and other charges relating to such utilities and
any other existing on-site improvements (including public or
quasi-public utilities or services) have been paid in full to the
extent the are due.
(u) INTERIM OPERATIONS OF ANGELES ACQUISITION Angeles Acquisition
was formed solely for the purpose of engaging in the transactions
contemplated hereby, has engaged in no other business activities and
has conducted its operations only as contemplated hereby.
(v) TRANSACTIONS AND AFFILIATES. Except as described in Schedule
2.2(v), no director or officer of Angeles Acquisition or any Angeles
Entity or any member of his or her immediate family, is a party to any
Contract or other business arrangement or relationship of any kind
with Angeles Acquisition or any Angeles Entity or, except for the
ownership of not more than 1% of the stock of a company having a class
of securities registered pursuant to the Exchange Act, has an
ownership interest in any business, corporate or otherwise, which is a
party to, or in any property which is the subject of, business
arrangements or relationships of any kind with any Angeles Acquisition
or Angeles Entity.
(w) BROKERS. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection
with the Merger based upon arrangements made by or on behalf of any
Angeles Entity.
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ARTICLE III
COVENANTS RELATING TO CONDUCT OF BUSINESS
3.1 COVENANTS OF ANGELES ACQUISITION AND CONSOLIDATED CAPITAL.
During the period from the date of this Agreement and continuing until the
Effective Time, Angeles Acquisition and Consolidated Capital each agree as to
itself and its related entities and subsidiaries that (except as expressly
contemplated or permitted by this Agreement, or to the extent that the other
party shall otherwise consent in writing):
(a) ORDINARY COURSE. Each party and their respective entities and
subsidiaries shall carry on their respective businesses in the usual,
regular and ordinary course in substantially the same manner as
heretofore conducted; provided, however, prior to the Closing, the
Management Shareholders shall acquire from Consolidated Capital
certain assets (the "Transferred Assets") and assume all of the
liabilities (the "PreClosing Liabilities") of Consolidated Capital on
the terms set forth in the Asset Purchase Agreement attached hereto as
Exhibit A and incorporated herein by reference (the "Asset
Agreement").
(b) DIVIDENDS; CHANGES IN STOCK. No party shall, nor shall any
party permit any of its subsidiaries to, nor shall any party propose
to, (i) declare or pay any dividends on or make other distributions in
respect of any of its capital stock, (ii) split, combine or reclassify
any of its capital stock or issue or authorize or propose the issuance
of any other securities in respect of, in lieu of or in substitution
for shares of its capital stock or (iii) repurchase or otherwise
acquire, or permit any subsidiary to purchase or otherwise acquire,
any shares of its capital stock.
(c) ISSUANCE OF SECURITIES. No party shall, nor shall any party
permit any of its subsidiaries to, issue, deliver or sell, or
authorize or propose the issuance, delivery or sale of, any shares of
its capital stock of any class, any voting debt or any securities
convertible into, or any rights, warrants or options to acquire, any
such shares, voting debt or convertible securities.
(d) GOVERNING DOCUMENTS. No party shall amend or propose to amend
its Certificate of Incorporation or By-laws.
(e) NO SOLICITATIONS. No party shall, nor shall any party permit
any of its related entities or subsidiaries to, nor shall it authorize
or permit any of its officers, directors or employees or any
investment banker, financial advisor, attorney, accountant or other
representative retained by it or any of its related entities or
subsidiaries to, solicit or encourage (including by way of furnishing
information), or take any other action to facilitate, any inquiries or
the making of any proposal which constitutes, or may reasonably be
expected to lead to, any takeover proposal, or agree to or endorse any
takeover proposal. Each party shall promptly advise the other orally
and in writing of
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any such inquiries or proposals. As used in this Agreement, "takeover
proposal" shall mean any tender or exchange offer, proposal for a
merger, consolidation or other business combination involving a party
hereto or any related entity or subsidiary of such party or any
proposal or offer to acquire in any manner a substantial equity
interest in, or a substantial portion of the assets of, such party or
related entity or any of its subsidiaries other than the transactions
contemplated by this Agreement.
(f) NO ACQUISITIONS. No party shall, nor shall any party permit
any of its related entities or subsidiaries to, acquire or agree to
acquire by merging or consolidating with, or by purchasing a
substantial equity interest in or a substantial portion of the assets
of, or by any other manner, any business or any corporation,
partnership, association or other business organization or division
thereof or otherwise acquire or agree to acquire any assets in each
case which are material, individually or in the aggregate, to such
party and related entities and its subsidiaries taken as a whole.
(g) NO DISPOSITIONS. Except for the transfer of assets pursuant
to the Asset Agreement or in the ordinary course of business
consistent with prior practice, no party shall, nor shall any party
permit any of its related entities or subsidiaries to, sell, lease,
encumber or otherwise dispose of, or agree to sell, lease, encumber or
otherwise dispose of, any of its assets, which are material,
individually or in the aggregate, to such party, its related entities
and its subsidiaries taken as a whole.
(h) INDEBTEDNESS. No party shall, nor shall any party permit any
of its related entities or subsidiaries to, incur any indebtedness for
borrowed money or guarantee any such indebtedness or issue or sell any
debt securities or warrants or rights to acquire any debt securities
of such party or related entities or any of its subsidiaries or
guarantee any debt securities of others other than in each case in the
ordinary course of business consistent with prior practice.
(i) COMPENSATION. No party shall grant any increase in the salary
or other compensation of its officers or other employees or grant any
bonus to any officer or other employee or enter into any employment
agreement or make any loan to or enter into any material transaction
of any other nature with any officer or other employee of such party.
(j) NO NEW SEVERANCE. No party shall take any action to institute
any new severance or termination pay practices with respect to any
directors or officers or other employees of such party or to increase
the benefits payable under its severance or termination pay practices.
(k) BENEFIT PLANS. No party shall adopt or amend, in any respect,
except as may be required by applicable law or regulation, any bonus,
profit sharing, compensation, stock option, restricted stock, pension,
retirement, deferred compensation, employment or other employee
benefit plan, agreement, trust, fund, plan or arrangement for the
benefit or
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welfare of any directors or officers or other employees except as
otherwise contemplated by this Agreement.
3.2 OTHER ACTIONS. No party shall, nor shall any party permit any
of its related entities subsidiaries to, take any action that would or is
reasonably likely to result in any of its representations and warranties set
forth in this Agreement being untrue as of the date made (to the extent so
limited), or in any of the conditions to the Merger set forth in Article V not
being satisfied. The parties hereto acknowledge and agree that certain
representations and warranties set forth in Section 2.1 of this Agreement shall
not be true as a result of and upon the consummation of the transactions
contemplated by the Asset Agreement and such effect shall not constitute a
breach of such representations and warranties.
3.3 ADVICE OF CHANGES; FILINGS. Each party shall confer on a regular
and frequent basis with the other, report on operational matters and promptly
advise the other orally and in writing of any change or event having, or which,
insofar as can reasonably be foreseen, could have, a material adverse effect on
such party and its related entities and subsidiaries taken as a whole. Each
party shall promptly provide the other (or its counsel) copies of all filings
made by such party with any State or Federal Governmental Entity in connection
with this Agreement and the transactions contemplated hereby and thereby.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 PURCHASE OF STOCK. On the Closing Date, Angeles Acquisition
shall acquire from the Management Shareholders or other shareholder of
Consolidated Capital an aggregate of 145,000 shares of Consolidated Capital
Common Stock and within 90 days of the Closing, 55,000 shares of Consolidated
Capital Stock, for an aggregate purchase price of $80,000 on the terms set
forth in the Stock Purchase Agreement attached hereto as Exhibit B. The
consummation of the stock purchase of the initial 145,000 shares shall be
conditioned on such shares being freely transferable by Angeles Acquisition
under the Securities Act and any applicable state securities laws and the
consummation of the Merger.
4.2 RESTRICTED CONSOLIDATED CAPITAL SHARES; REGISTRATION RIGHTS.
(a) The Merger Shares will not be registered under the Securities Act, and
accordingly, will constitute "restricted securities" for purposes of the
Securities Act and the Angeles Acquisition shareholder will not be able to
transfer such Merger Shares except upon compliance with the registration
requirements of the Securities Act and applicable state securities laws or an
exemption therefrom. The certificates evidencing the Merger Shares shall
contain a legend to the foregoing effect and Stone Pine shall deliver at
Closing an Investment Letter in substantially the form of Exhibit C hereto
acknowledging the fact that the Merger Shares are restricted securities and
agreeing to the foregoing transfer restrictions.
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(b) Consolidated Capital, shall upon the demand of any holder of
the Merger Shares, file a registration statement with the SEC to
permit the sale of the Merger Shares by the holders of such shares
from time to time. The holders of the Merger Shares shall also have
"piggyback" registration rights.
4.3 ACCESS TO INFORMATION. Upon reasonable notice, Consolidated
Capital and Angeles Acquisition shall each afford to the officers, employees,
accountants, counsel and other representatives of the other, access, during
normal business hours during the period prior to the Effective Time, to all its
properties, books, contracts, commitments and records and, during such period,
each of Consolidated Capital and Angeles Acquisition shall furnish promptly to
the other (a) a copy of each report, schedule, registration statement and other
document filed or received by it during such period pursuant to the
requirements of Federal or state securities laws and (b) all other information
concerning its business, properties and personnel as such other party may
reasonably request. Unless otherwise required by law, the parties will hold
any such information which is nonpublic in confidence until such time as such
information otherwise becomes publicly available through no wrongful act of
either party, and in the event of termination of this Agreement for any reason
each party shall promptly return all nonpublic documents obtained from any
other party, and any copies made of such documents, to such other party.
4.4 LEGAL CONDITIONS TO MERGER. Each of Consolidated Capital,
Consolidated Acquisition and Angeles Acquisition will take all reasonable
actions necessary to comply promptly with all legal requirements which may be
imposed on itself with respect to the Merger and will promptly cooperate with
and furnish information to each other in connection with any such requirements
imposed upon any of them or any of their related entities or subsidiaries in
connection with the Merger. Each of Consolidated Capital, Consolidated
Acquisition and Angeles Acquisition will, and will cause its related entities
or subsidiaries to, take all reasonable actions necessary to obtain (and will
cooperate with each other in obtaining) any consent, authorization, order or
approval of, or any exemption by, any Governmental Entity or other public or
private third party, required to be obtained or made by Consolidated Capital,
Angeles Acquisition or any of their related entities or subsidiaries in
connection with the Merger or the taking of any action contemplated thereby or
by this Agreement.
4.5 STOCK OPTIONS. At the Effective Time, each outstanding option
to purchase shares of Consolidated Capital, whether vested or unvested, shall
be cancelled.
4.6 CONSOLIDATED CAPITAL BOARD OF DIRECTORS AND OFFICERS. All of
the directors of Consolidated Capital shall resign as directors of Consolidated
Capital as of the Closing Date and the following persons shall be appointed as
directors of Consolidated Capital as of such date: Thompson H. Rogers, J. Paul
Bagley, III and L. Wayne Harber
4.7 EXPENSES. Subject to Section 6.2 and 7.2, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expense.
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4.8 SUBSEQUENT SEC FILINGS. After the Closing Date, the following
documents shall be filed by Consolidated Capital with the SEC and/or the
National Association of Securities Dealers, Inc.:
(a) Within seventy-five (75) days following the Closing Date,
Consolidated Capital shall file under cover of Form 8-K, audited
financial statements of Angeles Metal Trim, proforma financial
information and other disclosures as required by Form 8-K of the
Exchange Act and Regulation S-B of the 1933 Act;
(b) Consolidated Capital will make its reasonable best efforts to
comply with the initial listing requirements imposed by the Nasdaq
Stock Market and, provided that Consolidated Capital meets such
criteria (of which there can be no assurance) or believes in its sole
discretion that an exception from one or more criteria is likely,
Consolidated Capital shall file within ninety (90) days of the Closing
Date an application for listing of its Common Stock on the Nasdaq
Small Cap Market, pay the applicable fees, and file such other
documents which may be requested by Nasdaq and use its best efforts to
obtain such listing;
(c) Consolidated Capital shall cause to be filed such other
reports as may be required to be filed with the SEC or the Nasdaq by
Sections 13 or 15(d) of the Exchange Act or necessary to maintain
listing of the Common Stock on Nasdaq.
4.9 ANGELES METAL TRIM PURCHASE AGREEMENT. The parties hereto
acknowledge and agree that Angeles Acquisition acquired the shares of Angeles
Metal Trim pursuant to a Stock Purchase Agreement with the prior stockholders
of Angeles Metal Trim (the "Angeles Metal Trim Purchase Agreement") which
agreement provides for certain rights of Angeles Acquisition. In the event
that there is a breach of any of the representations and warranties of the
Angeles Metal Trim stockholders contained in the Angeles Metal Trim Purchase
Agreement, Angeles Acquisition shall enforce against such Angeles Metal Trim
stockholders any rights of Angeles Acquisition contained in such Angeles Metal
Trim Purchase Agreement.
ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
The respective obligation of each party to effect the Merger shall be subject
to the satisfaction prior to the Closing Date of the following conditions:
(a) NECESSARY APPROVALS. All authorizations, consents, orders or
approvals of, or declarations or filings with, or expirations of
waiting periods imposed by, any Governmental Entity the failure to
obtain which would have a material adverse effect on Consolidated
Capital and its subsidiaries and related entities, taken as a whole,
shall have been filed, occurred or been obtained. Consolidated
Capital shall have received all state
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securities or "Blue Sky" permits and other authorizations necessary to
issue the Merger Shares and to consummate the Merger.
(b) ASSET AGREEMENT. The Management Shareholders shall have
acquired certain assets of Consolidated Capital and assumed the
PreClosing Liabilities pursuant to the terms of the Asset Agreement
and as of the Effective Time Consolidated Capital shall have no
liabilities or obligations of any kind other than those arising from
this Agreement or the Merger.
5.2 CONDITIONS OF OBLIGATIONS OF CONSOLIDATED CAPITAL AND
CONSOLIDATED ACQUISITION. The obligations of Consolidated Capital and
Consolidated Acquisition to effect the Merger are subject to the satisfaction
of the following conditions unless waived by Consolidated Capital and
Consolidated Acquisition:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Angeles Acquisition set forth in this Agreement shall be
true and correct in all material respects as of the date of this
Agreement and (except to the extent such representations and
warranties speak as of an earlier date) as of the Closing Date as
though made on and as of the Closing Date, except as otherwise
contemplated by this Agreement, and Consolidated Capital shall have
received a certificate signed on behalf of Angeles Acquisition by the
President of Angeles Acquisition and the Manager of Stone Pine to such
effect.
(b) PERFORMANCE OF OBLIGATIONS OF ANGELES ACQUISITION. Angeles
Acquisition shall have performed in all material respects all
obligations required to be performed by it under this Agreement at or
prior the Closing Date, and Consolidated Capital shall have received a
certificate signed on behalf of Angeles Acquisition by the President
to such effect.
(c) OPINION OF COUNSEL FOR ANGELES ACQUISITION. Consolidated
Capital shall have received an opinion dated the Closing Date of
Gallagher, Briody & Butler, counsel for Angeles Acquisition, in form
and substance reasonably satisfactory to Consolidated Capital and its
counsel relating to such matters as are customarily delivered in
connection with a merger transaction.
(d) CLOSING DOCUMENTS. Consolidated Capital shall have received
such certificates and other closing documents as counsel for
Consolidated Capital shall reasonably request.
(e) CONSENTS. Angeles Acquisition shall have obtained the consent
or approval of each person whose consent or approval shall be required
in connection with the transactions contemplated hereby under any loan
or credit agreement, note, mortgage, indenture, lease or other
agreement or instrument, except those for which failure to obtain such
consents and approvals would not, in the reasonable opinion of
Consolidated Capital, individually or in the aggregate, have a
material adverse effect on Angeles Acquisition
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and its subsidiaries and related entities taken as a whole upon the
consummation of the transactions contemplated hereby.
(f) BUSINESS REVIEW. Consolidated Capital shall have completed to
its reasonable satisfaction a review of the business, operations,
finances, assets and liabilities of Angeles Acquisition and the
Angeles Entities and shall not have determined that any of the
representations or warranties of Angeles Acquisition contained herein
are, as of the date hereof or the Closing Date, inaccurate in any
material respect or that Angeles Acquisition is otherwise in violation
of any of the provisions of this Agreement.
(g) PENDING LITIGATION. There shall not be any litigation or
other proceeding pending or threatened to restrain or invalidate the
transactions contemplated by this Agreement, which, in the sole
reasonable judgment of Consolidated Capital, made in good faith, would
make the consummation of the Merger imprudent. In addition, there
shall not be any other litigation or other proceeding pending or
threatened against Angeles Acquisition or any Angeles Entity, the
consequences of which, in the judgment of Consolidated Capital, could
be materially adverse to Angeles Acquisition, or any Angeles Entity.
5.3 CONDITIONS OF OBLIGATIONS OF ANGELES ACQUISITION. The
obligation of Angeles Acquisition to effect the Merger is subject to the
satisfaction of the following conditions unless waived by Angeles Acquisition:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Consolidated Capital set forth in this Agreement shall
be true and correct in all material respects as of the date of this
Agreement and (except to the extent such representations speak as of
an earlier date) as of the Closing Date as though made on and as of
the Closing Date, except as otherwise contemplated by Sections 3.1(a)
and 3.2 of this Agreement with respect to the Asset Agreement, and
Angeles Acquisition shall have received a certificate signed on behalf
of Consolidated Capital by the Chief Executive Officer to such effect.
(b) PERFORMANCE OF OBLIGATIONS OF CONSOLIDATED CAPITAL AND
CONSOLIDATED ACQUISITION. Consolidated Capital and Consolidated
Acquisition shall have performed in all material respects all
obligations required to be performed by them under this Agreement at
or prior to the Closing Date, and Angeles Acquisition shall have
received a certificate signed on behalf of Consolidated Capital by the
Chief Executive Officer of Consolidated Capital to such effect.
(c) OPINION OF COUNSEL FOR CONSOLIDATED CAPITAL. Angeles
Acquisition shall have received an opinion dated the Closing Date of
Overton, Babiarz & Sykes, counsel for Consolidated Capital, in form
and substance reasonably satisfactory to Angeles Acquisition and its
counsel relating to (i) such matters as are customarily delivered in
connection with a merger transaction, (ii) that Consolidated Capital
is required to file reports, and has for a period of at least twelve
months prior to the Closing filed all
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material required to be filed, pursuant to Section 15(d) of the
Exchange Act and (iii) the transactions covered by the Asset Agreement
do not require the approval of the shareholders of Consolidated
Capital.
(d) CLOSING DOCUMENTS. Angeles Acquisition shall have received
such certificates and other closing documents as counsel for Angeles
Acquisition shall reasonably request.
(e) CONSENTS. Consolidated Capital shall have obtained the
consent or approval of each person whose consent or approval shall be
required in connection with the transactions contemplated hereby under
any loan or credit agreement, note, mortgage, indenture, lease or
other agreement or instrument, except those for which failure to
obtain such consents and approvals would not, in the reasonable
opinion of Angeles Acquisition, individually or in the aggregate, have
a material adverse effect on Consolidated Capital and its subsidiaries
and related entities, taken as a whole upon the consummation of the
transactions contemplated hereby.
(f) BUSINESS REVIEW. Angeles Acquisition shall have completed to
its reasonable satisfaction a review of the business, operations,
finances, assets and liabilities of Consolidated Capital and the
Consolidated Entities and shall not have determined that any of the
representations or warranties of Consolidated Capital contained herein
are, as of the date hereof or the Closing Date, inaccurate in any
material respect or that Consolidated Capital is otherwise in
violation of any of the provisions of this Agreement.
(g) PENDING LITIGATION. There shall not be any litigation or
other proceeding pending or threatened to restrain or invalidate the
transactions contemplated by this Agreement, which, in the sole
reasonable judgment of Angeles Acquisition, made in good faith, would
make the consummation of the Merger imprudent. In addition, there
shall not be any other litigation or other proceeding pending or
threatened against Consolidated Capital or any Consolidated Entity,
the consequences of which, in the judgment of Angeles Acquisition,
could be materially adverse to Consolidated Capital or any
Consolidated Entity.
(h) NO CONVERTIBLE SECURITIES OUTSTANDING. Consolidated Capital
shall have secured the cancellation, on terms and conditions
reasonably satisfactory to Angeles Acquisition, of all outstanding
stock options and no options, rights, convertible securities or other
instruments exercisable for equity securities of Consolidated Capital
shall be outstanding.
(i) RESIGNATION OF DIRECTORS. Each director of Consolidated
Capital shall have delivered his written resignation as a director of
Consolidated Capital effective as of the Closing Date of the Merger.
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ARTICLE VI
INDEMNIFICATION
6.1 INDEMNIFICATION OBLIGATIONS OF MANAGEMENT SHAREHOLDERS. From
and after the Effective Time the Management Shareholders jointly and severally,
shall reimburse, indemnify and hold harmless Consolidated Capital and Angeles
Acquisition and their directors, officers, shareholders, employees,
representatives and agents (each such person and its or his heirs, executors,
administrators, successors and assigns is referred to herein as an "Angeles
Indemnified Party") against and in respect of:
(a) Any and all damages, losses, settlement payments,
deficiencies, liabilities, costs, expenses and claims suffered,
sustained, incurred or required to be paid by any Angeles Indemnified
Party because of or that result from, relate to or arise out of:
(i) any asset of Consolidated Capital or any Assumed
Liability of Consolidated Capital which were transferred or
assumed by the Management Shareholders pursuant to the Asset
Agreement; or
(ii) the business, operations or assets of Consolidated
Capital or any Consolidated Entity prior to the Effective Time
or the actions or omissions of any officer, director,
shareholder, employee or agent of Consolidated Capital or any
Consolidated Entity prior to the Effective Time irrespective
of the date that any claim, suit or other cause of action
related to any of the foregoing is filed or otherwise
instituted against Consolidated Capital or any Angeles
Indemnified Party; and
(b) Any and all actions, suits, claims, or legal, administrative,
arbitration, governmental or other procedures or investigation against
any Angeles Indemnified Party that relate to the business, operations
or assets of Consolidated Capital or any Consolidated Entity in which
the event giving rise thereto occurred prior to the Effective Time or
which results from or arises out of any action or inaction prior to
the Effective Time of Consolidated Capital or any Consolidated Entity
or any director, officer, employee, agent, representative of
Consolidated Capital or any Consolidated Entity; and
(c) Any an all actions, suits, claims, proceedings,
investigations, allegations, demands, assessments, audits, fines,
judgments, costs and other expenses (including without limitation
reasonable legal fees and expenses) incident to any of the foregoing
or to the enforcement of this Section 6.1.
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6.2 INDEMNIFICATION OBLIGATIONS OF ANGELES ACQUISITION AND STONE
PINE. From and after the Effective Time Angles Acquisition and Stone Pine
jointly and severally shall reimburse, indemnify and hold harmless the
Management Shareholders and their representatives and agents (each such person
and its or his heirs, executors, administrators, successors and assigns is
referred to herein as a "Management Shareholder Indemnified Party") against and
in respect of:
(a) Any and all damages, losses, settlement payments,
deficiencies, liabilities, costs, expenses and claims suffered,
sustained, incurred or required to be paid by any Management
Shareholder Indemnified Party because of or that result from, relate
to or arise out of the business, operations or assets of Consolidated
Capital or any Consolidated Entity after the Effective Time or the
actions or omissions of any officer, director, shareholder, employee
or agent of Consolidated Capital or any Consolidated Entity after the
Effective Time; and
(b) Any and all actions, suits, claims, or legal, administrative,
arbitration, governmental or other procedures or investigation against
any Management Shareholder Indemnified Party that relate to the
business, operations or assets of Consolidated Capital or any
Consolidated Entity in which the event giving rise thereto occurred
after the Effective Time or which results from or arises out of any
action or inaction after the Effective Time of Consolidated Capital or
any Consolidated Entity or any director, officer, employee, agent,
representative of Consolidated Capital or any Consolidated Entity; and
(c) Any an all actions, suits, claims, proceedings,
investigations, allegations, demands, assessments, audits, fines,
judgments, costs and other expenses (including without limitation
reasonable legal fees and expenses) incident to any of the foregoing
or to the enforcement of this Section 6.2.
6.3 PAYMENT OF INDEMNIFICATION OBLIGATIONS. Each party agrees to
pay promptly to any other indemnified party the amount of all damages, losses,
settlement payments, deficiencies, liabilities, costs, expenses, claims and
other obligations to which the indemnity set forth in Section 6.1 or 6.2
relates. If all or part of any such obligation is not paid when due, then the
indemnifying party shall also pay the indemnified party interest on the unpaid
amount of the obligation for each day from the date the amount became due until
payment in full, payable on demand, at the fluctuating rate per annum which at
all times shall be four percentage points in excess of the "prime rate"
identified in The Wall Street Journal as the base rate on corporate loans at
large U.S. money center commercial banks.
6.4 OTHER REMEDIES. The indemnification rights of any indemnified
party under this Article VI are independent of and in addition to such rights
and remedies as such indemnified party may have at law, in equity or otherwise
for any misrepresentation, breach of warranty or failure to fulfill any
covenant or agreement under or in connection with this Agreement, including
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without limitation the right to seek specific performance, rescission or
restitution, none of which rights or remedies shall be affected or diminished
hereby.
ARTICLE VII
TERMINATION AND AMENDMENT
7.1 TERMINATION. This Agreement may be terminated at any time
prior to the Effective Time:
(a) by mutual consent of Consolidated Capital and Angeles
Acquisition;
(b) by either Consolidated Capital or Angeles Acquisition if there
has been a material breach of any representation, warranty, covenant
or agreement on the part of the other set forth in this Agreement
which breach has not been cured within 5 business days following
receipt by the breaching party of notice of such breach, or if any
permanent injunction or other order of a court or other competent
authority preventing the consummation of the Merger shall have become
final and non-appealable; or
(c) by either Consolidated Capital or Angeles Acquisition if the
Merger shall not have been consummated before January 30, 1997.
7.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either Angeles Acquisition or Consolidated Capital as provided in
Section 7.1, this Agreement shall forthwith become void and there shall be no
liability or obligation on the part of any party hereto other than the
obligation of Consolidated Capital to refund to Angeles Acquisition, within
five days of such termination, $10,000 of the $20,000 which has been paid to
Consolidated Capital as earnest money. Except as provided in the foregoing
sentence, and Section 6.2, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expenses.
7.3 AMENDMENT. This Agreement may be amended by the parties
hereto, by action taken or authorized by their respective Boards of Directors,
provided no amendment shall be made which by law requires approval by the
shareholders of any party without such further approval. This Agreement may
not be amended except by an instrument in writing signed on behalf of each of
the parties hereto.
7.4 EXTENSION; WAIVER. At any time prior to the Effective Time,
the parties hereto, by action taken or authorized by their respective Board of
Directors, may, to the extent legally allowed, (a) extend the time for the
performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (c) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall
be valid only if set forth in a written instrument signed on behalf of such
party.
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ARTICLE VIII
GENERAL PROVISIONS
8.1 NONSURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
None of the representations, warranties and agreements in this Agreement or in
any instrument delivered pursuant to this Agreement shall survive the Effective
Time, except for the agreements contained in Sections 4.2, 4.7, 4.8, 4.9, 6.1,
6.2, 6.3, 6.4, 7.2 and 8.1.
8.2 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, telecopied
(which is confirmed) or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) If to Consolidated Capital, Consolidated Acquisition or any
Management Shareholder, to
Consolidated Capital of North America, Inc.
5525 Erindale Drive, Suite 201
Colorado Springs, CO 80918
Attention: Raymond E. McElhaney, President
Facsimile No.: 719-260-8516
with a copy to
Overton, Babiarz & Sykes, P.C.
7720 East Belleview, Suite 200
Englewood, CO 80111
Attention: David Babiarz, Esq.
Facsimile No.: 303-779-6006
and
(b) if to Angeles Acquisition or Stone Pine, to
Angeles Acquisition Corp.
c/o Stone Pine Atlantic, LLC
410 17th Street, Suite 400
Denver, CO 80202
Attention: Jeffrey R. Leach, President
Facsimile No.: 303-446-5922
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with a copy to
Gallagher, Briody & Butler
212 Carnegie Center, Suite 402
Princeton, NJ 08540
Attn: Thomas P. Gallagher, Esq.
Facsimile No.: 609-452-0090
8.3 INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation". The phrase "made available" in this Agreement
shall mean that the information referred to has been made available if
requested by the party to whom such information is to be made available.
8.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each
of the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
8.5 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES; RIGHTS OF
OWNERSHIP. This Agreement (including the documents and the instruments
referred to herein) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the Consolidated Acquisition subject matter hereof, and is not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
8.6 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware without regard to
principles of conflicts of law. Each party hereby irrevocably submits to the
jurisdiction of any Colorado state court or any federal court in the State of
Colorado in respect of any suit, action or proceeding arising out of or
relating to this Agreement, and irrevocably accept for themselves and in
respect of their property, generally and unconditionally, the jurisdiction of
the aforesaid courts.
8.7 NO REMEDY IN CERTAIN CIRCUMSTANCES. Each party agrees that,
should any court or other competent authority hold any provision of this
Agreement or part hereof or thereof to be null, void or unenforceable, or order
any party to take any action inconsistent herewith or not to take any action
required herein, the other party shall not be entitled to specific performance
of such provision or part hereof or thereof or to any other remedy, including
but not limited to money damages, for breach hereof or thereof or of any other
provision of this Agreement or part hereof or thereof as a result of such
holding or order.
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8.8 PUBLICITY. Except as otherwise required by law or the rules
of the SEC, so long as this Agreement is in effect, no party shall issue or
cause the publication of any press release or other public announcement with
respect to the transactions contemplated by this Agreement without the written
consent of the other party, which consent shall not be unreasonably withheld.
8.9 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties, except that Consolidated Acquisition or Angeles
Acquisition may assign, in its sole discretion, any or all of its rights,
interests and obligations hereunder to any direct or indirect wholly owned
subsidiary of such company. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
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IN WITNESS WHEREOF, this Agreement has been signed by the parties set
forth below as of the date set forth above.
CONSOLIDATED CAPITAL OF NORTH
AMERICA, INC.
By: /s/ Raymond E. McElhany
------------------------------
Name: Raymond E. McElhany
Title: President
CONSOLIDATED LAND & CATTLE
COMPANY
By: /s/ Raymond E. McElhany
------------------------------
Name: Raymond E. McElhany
Title: President
MANAGEMENT SHAREHOLDERS:
/s/ Raymond E. McElhaney
---------------------------------
Raymond E. McElhaney
/s/ Bill M. Conrad
---------------------------------
Bill M. Conrad
/s/ Ronald R. McGinnis
---------------------------------
Ronald R. McGinnis
ANGELES ACQUISITION CORP.
/s/ Jeffrey R. Leach
---------------------------------
Jeffrey R. Leach
President
STONE PINE COLORADO, L.L.C.
/s/ J. Paul Bagley, III
---------------------------------
J. Paul Bagley, III
Manager
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