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EXHIBIT 2.2
SHARE PURCHASE AGREEMENT
AMONG
GAMPADONA LIMITED, ODADALE PORTFOLIO, INC., BOSHOF HOLDING, INC.,
SEBIRA FINANCIAL, INC., CUMBRIAN TRADING LTD., XXX LEZARD,
XXXX XXXXXXXX, XXXXX XXXX, XXX XXXXXX, XXXXXXX XXXXXXX,
XXXX XXXXXXX, XXXX XXXXXXX, G. XXXXX XXXXXXX,
NORTH AMERICAN SECURITY & FIRE ACQUISITIONS, INC.,
AND
INTREPID INTERNATIONAL, S.A.
JUNE 18, 1999
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TABLE OF CONTENTS
ARTICLE I - SHARE PURCHASE........................................................................................1
Section 1.1 Share Purchase.........................................................................1
Section 1.2 Purchase Price.........................................................................1
Section 1.3 Closing................................................................................1
Section 1.4 Transactions at the Closing............................................................1
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF THE SELLER.........................................................2
Section 2.1 Organization, Standing and Qualification...............................................2
Section 2.2 Capitalization.........................................................................2
Section 2.3 Validity of Stock and Tradeability.....................................................2
Section 2.4 Subsidiaries...........................................................................2
Section 2.5 Financial Statements...................................................................3
Section 2.6 No Material Changes....................................................................3
Section 2.7 Business, Operations and Properties....................................................3
Section 2.8 Authorization; Approvals...............................................................3
Section 2.9 No Conflict with Other Instruments.....................................................3
Section 2.10 Compliance with Law and Other Instruments..............................................4
Section 2.11 Taxes..................................................................................4
Section 2.12 Contracts and Promissory Notes.........................................................4
Section 2.13 Litigation.............................................................................4
Section 2.14 Fees and Commissions...................................................................4
Section 2.15 Interested Party Transactions..........................................................4
Section 2.16 ERISA..................................................................................5
Section 2.17 Environmental and Safety Laws..........................................................5
Section 2.18 SEC Reports............................................................................5
Section 2.19 Full Disclosure........................................................................5
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF THE BUYERS........................................................5
Section 3.1 Corporate Authority and Legal Capacity.................................................5
Section 3.2 No Conflict with Other Instruments.....................................................5
Section 3.3 Investment Representations.............................................................5
Section 3.4 Fees and Commissions...................................................................6
Section 3.5 Authorization; Approvals...............................................................6
ARTICLE IV - COVENANTS OF THE SELLER AND NASFA....................................................................6
Section 4.1 Confidentiality........................................................................6
Section 4.2 NASFA's Filing Obligations.............................................................6
Section 4.3 Removal of Legend on Certificates Representing the NASFA Shares........................6
Section 4.4 Officers and Directors.................................................................7
Section 4.5 Access to Information..................................................................7
Section 4.6 Cooperation............................................................................7
Section 4.7 No New Agreements......................................................................7
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Section 4.8 Compensation...........................................................................7
Section 4.9 Indebtedness...........................................................................7
Section 4.10 No Securities Issued...................................................................7
Section 4.11 Repurchase; Dividends..................................................................7
ARTICLE V - COVENANTS OF THE BUYERS...............................................................................8
Section 5.1 Restrictions on Transfer...............................................................8
Section 5.2 Transfer Instructions..................................................................8
Section 5.3 Cooperation............................................................................8
ARTICLE VI - CONDITIONS TO THE CLOSING OF THE SELLER AND NASFA....................................................8
ARTICLE VII - CONDITIONS TO THE CLOSING OF THE BUYERS.............................................................9
ARTICLE VIII - SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION....................................10
Section 8.1 Survival of Representations and Warranties............................................10
Section 8.2 Obligations of the Seller.............................................................10
Section 8.3 Obligations of the Buyers.............................................................10
Section 8.4 Notice of Loss or Asserted Liability..................................................11
Section 8.5 Opportunity to Contest................................................................11
ARTICLE IX - TERMINATION.........................................................................................11
Section 9.1 Termination of Agreement..............................................................11
Section 9.2 Termination of Obligations............................................................12
ARTICLE X - SELLER'S OPTION......................................................................................12
ARTICLE XI - MISCELLANEOUS.......................................................................................12
Section 11.1 Entire Agreement......................................................................12
Section 11.2 Survival of Representations and Warranties............................................12
Section 11.3 Notices...............................................................................13
Section 11.4 Amendments............................................................................14
Section 11.5 Waiver and Consent....................................................................14
Section 11.6 Successors and Assigns................................................................14
Section 11.7 Execution and Counterparts............................................................14
Section 11.8 No Third Party Beneficiaries..........................................................14
Section 11.9 Severability..........................................................................14
Section 11.10 GOVERNING LAW.........................................................................15
Exhibit A List of Buyers.......................................................................................A-1
Exhibit B Sellers of NASFA Shares..............................................................................B-1
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SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT, dated as of June 11, 1999, among
GAMPADONA LIMITED, ODADALE PORTFOLIO, INC., BOSHOF HOLDING, INC., SEBIRA
FINANCIAL, INC., CUMBRIAN TRADING LTD., XXX LEZARD, XXXX XXXXXXXX, AJMAL XXXX,
XXX BREADLE, XXXXXXX XXXXXXX, XXXX XXXXXXX, XXXX XXXXXXX, G. XXXXX XXXXXXX
(collectively, the "Buyers"), NORTH AMERICAN SECURITY & FIRE ACQUISITIONS, INC.,
a Nevada corporation ("NASFA"), and INTREPID INTERNATIONAL S.A. (the "Seller").
WHEREAS, the Seller owns or represents 11,003,296 shares of the
11,661,628 total issued and outstanding shares of capital stock of NASFA.
WHEREAS, the Seller desires to sell to the Buyers and the Buyers desire
to purchase from the Seller part of the shares owned or represented by the
Seller upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the Parties hereby agree as follows:
ARTICLE I - SHARE PURCHASE
Section 1.1 Share Purchase. Subject to the terms and provisions of this
Agreement, at the Closing (as hereinafter defined), the Buyers shall acquire
from the Seller an aggregate of 6,222,527 shares (the "NASFA Shares") of NASFA's
Common Stock, US$0.001 par value (the "NASFA Common Stock"), which represent
approximately 90.71% of the issued and outstanding capital stock of NASFA.
Section 1.2 Purchase Price. Subject to the terms and conditions set
forth in this Agreement, and in consideration of the sale, assignment, transfer
and delivery of the NASFA Shares, the Buyers will pay by wire transfer in
immediately available funds to a bank account specified by the Seller in writing
to the Buyer, the amount of US$150,000 (the "Cash Purchase Price").
Section 1.3 Closing. The share purchase pursuant to Section 1.1 hereof
(the "Closing") shall take place by means of a telephone conference call and the
mutual exchange of documents by Federal Express. The telephone conference call
shall take place at 3 p.m., Dallas local time, on June 23, 1999 or at such other
time and date as may be agreed upon by the Buyers and the Seller (the "Closing
Date").
Section 1.4 Transactions at the Closing. At the Closing, the Buyers
shall deliver to the Seller evidence of a wire transfer to the bank account(s)
specified by the Seller in writing to the Buyers for the Cash Purchase Price,
against delivery by the Seller to the Buyers of certificates representing the
NASFA Shares, duly registered in the names of the Buyers, in the amount set
forth in Exhibit A to this Agreement, and bearing the restrictive legend set
forth in Section 5.1 hereof.
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At the Closing, the Buyers shall own beneficially and of record approximately
90.71% of the issued and outstanding capital stock of NASFA.
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyers the following:
Section 2.1 Organization, Standing and Qualification. NASFA is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada and has all requisite corporate power and authority to
own, lease and operate its property and assets and to conduct its business as
presently conducted and as proposed to be conducted by it. NASFA has all
requisite corporate power and authority to enter into and perform its
obligations under this Agreement and to carry out the transactions contemplated
hereby. NASFA is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in which the failure to so qualify would
have a material adverse effect on its assets, properties, condition (financial
or otherwise), operating results or business. Complete and correct copies of the
Articles of Incorporation and Bylaws of NASFA have been delivered to the Buyers.
Section 2.2 Capitalization. On the Closing Date, the authorized capital
stock of NASFA shall consist of 50,000,000 shares of Common Stock, US$0.001 par
value, of which 6,859,781 shares are issued and outstanding, after giving effect
to the reverse stock split described in Article VII, Section (g) hereof. There
are no shares reserved for issuance pursuant to outstanding options, warrants,
debentures and preferred stock as of the date hereof. The outstanding shares of
NASFA Common Stock are duly authorized and validly issued, fully paid and
nonassessable. Holders of shares of NASFA's capital stock have no preemptive
rights or rights of first refusal. There are (i) no outstanding warrants,
options, convertible securities or rights to subscribe for or purchase any
capital stock or other securities of NASFA, (ii) no agreements between
shareholders or otherwise that place restrictions on stock transfers, (iii) no
existing rights of security holders to require NASFA to register any securities
of NASFA or to participate with NASFA in any registration by NASFA of its
securities, (iv) no voting trusts or agreements, (v) to the best knowledge of
the Seller and NASFA, no agreements among stockholders providing for the
purchase or sale of NASFA's capital stock, and (vi) no obligations (contingent
or otherwise) of NASFA to purchase, redeem or otherwise acquire any shares of
its capital stock or any interest therein or to pay any dividend or make any
other distribution in respect thereof.
Section 2.3 Validity of Stock and Tradeability. NASFA Common Stock,
when issued, sold and delivered in accordance with the terms of this Agreement,
will be duly authorized and validly issued, fully paid and nonassessable, and
will be free of restrictions on transfer, other than restrictions on transfer
under applicable state and federal securities laws, and not subject to
preemptive rights. In accordance with the provisions of Rule 144(k) of the
Securities Exchange Act of 1933, as amended, the NASFA Shares will be freely
tradeable 90 days from the Closing Date.
Section 2.4 Subsidiaries. NASFA (i) does not own or control, directly
or indirectly, any corporation, partnership, association or business entity, and
(ii) is not a participant in any joint venture or partnership.
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Section 2.5 Financial Statements. The Seller has furnished the Buyers
with NASFA's unaudited financial statements for the fiscal years ended December
31, 1997 and December 31, 1998 (the "Financial Statements"). The Financial
Statements are true and correct in all material respects, are in accordance with
the books and records of NASFA and have been prepared in accordance with
generally accepted accounting principles ("GAAP") consistently applied, and
fairly and accurately present in all material respects the financial position of
NASFA as of such date and the results of its operations for the period then
ended. NASFA has no material liabilities, debts or obligations, whether accrued,
absolute or contingent, other than liabilities reflected or reserved for in the
Balance Sheet or disclosed in the notes to the Financial Statements. NASFA is
not a guarantor or indemnitor of any indebtedness of any other person, firm or
corporation.
Section 2.6 No Material Changes. Subsequent to January 1, 1999, there
has been no material adverse change or any fact known to the Seller or NASFA and
not disclosed in writing to the Buyers that could reasonably be expected to
result in a material adverse change in the business or financial condition of
NASFA, and there is no litigation or governmental proceeding to which NASFA is a
party or to which any property of NASFA is subject or that is pending or, to the
knowledge of the Seller or NASFA, contemplated against NASFA that the Seller or
NASFA reasonably expects to result in any material adverse change in the
business or financial condition of NASFA.
Section 2.7 Business, Operations and Properties. NASFA has had no
business, operations or properties.
Section 2.8 Authorization; Approvals. All corporate action on the part
of NASFA and its stockholders necessary for the authorization, execution,
delivery and performance of all its obligations under this Agreement and for the
authorization, issuance and delivery of NASFA Shares being purchased under this
Agreement has been or will be taken prior to the Closing. The Seller has been
duly authorized by the entities listed in Exhibit B to this Agreement to sell
the NASFA Shares held by each entity. This Agreement, when executed and
delivered by or on behalf of NASFA and the Seller, shall constitute the valid
and binding obligation of NASFA and the Seller, enforceable against NASFA and
the Seller in accordance with its terms. NASFA and the Seller have obtained or
will obtain prior to the Closing Date all necessary consents, authorizations,
approvals and orders, and have made all registrations, qualifications,
designations, declarations or filings with all authorities required on the part
of NASFA and the Seller in connection with the consummation of the transactions
contemplated by this Agreement.
Section 2.9 No Conflict with Other Instruments. The execution, delivery
and performance of this Agreement will not result in any violation of, be in
conflict with, or constitute, with or without the passage of time or giving of
notice or both, a default under any terms or provisions of (i) the Articles of
Incorporation or Bylaws of NASFA or the Seller; (ii) any judgment, decree or
order of any court or government agency or body having jurisdiction over NASFA
or the Seller or their respective properties; (iii) any agreement, contract,
understanding, indenture or other instrument to which NASFA or the Seller is a
party or by which one or both of them is bound, the effect of which would have a
material adverse effect on the assets, properties, condition (financial or
otherwise), operating results or business of NASFA; or (iv) any statute, rule or
governmental regulation applicable to NASFA or the Seller.
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Section 2.10 Compliance with Law and Other Instruments. NASFA is not in
violation in any material respect of any provision of (i) its Articles of
Incorporation or its Bylaws, or (ii) any judgment, decree, order, statute, rule
or governmental regulation applicable to it, the violation of which would
materially and adversely affect the assets, properties, condition (financial or
otherwise), operating results or business of NASFA. NASFA is not in material
violation or material default in any material respect of any provision of any
mortgage, indenture, agreement, instrument or contract to which it is a party or
by which it is bound.
Section 2.11 Taxes. NASFA has accurately and timely filed all federal
income tax returns and all state and municipal tax returns that are required to
be filed by it and has paid or made adequate provision for the payment of all
amounts due pursuant to such returns. The federal income tax returns of NASFA
have not been audited by the Internal Revenue Service, and there are no waivers
in effect of the applicable statute of limitations for any period. No deficiency
assessment or proposed adjustment of federal income taxes or state or municipal
taxes of NASFA is pending, and neither NASFA nor the Seller has knowledge of any
proposed liability for any tax to be imposed.
Section 2.12 Contracts and Promissory Notes. NASFA is not a party to
any contract, lease, mortgage, notes, obligations or commitments. NASFA has no
employment or consulting contracts, deferred compensation agreements or bonus,
incentive, profit-sharing or pension plans.
Section 2.13 Litigation. There is no action, proceeding or governmental
inquiry or investigation pending or, to the best knowledge of NASFA and the
Seller, threatened against NASFA or any of its officers, directors or employees
(in their capacity as such) or any of NASFA's assets or properties before any
court, arbitration board or tribunal or administrative or other governmental
agency. NASFA is not a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or governmental agency or
instrumentality. There is no action, suit or proceeding by NASFA currently
pending.
Section 2.14 Fees and Commissions. Neither NASFA nor the Buyers nor
their affiliates shall be liable for any fees payable to any finder, broker,
agent, financial advisor or other intermediary (collectively "Intermediary") in
connection with the transactions contemplated by this Agreement.
Section 2.15 Interested Party Transactions. Except as disclosed in its
SEC Filings, no executive officer or director of NASFA or holder of more than
five percent (5%) of the capital stock of NASFA or, to the best of NASFA's and
the Seller's knowledge, any "affiliate" or "associate" (as these terms are
defined in Rule 405 promulgated under the Securities Act) of any such person or
entity or NASFA has or has had, either directly or indirectly, (a) an interest
in any person or entity which (i) furnishes or sells services or products which
are furnished or sold or are proposed to be furnished or sold by NASFA, or (ii)
purchases from or sells or furnishes to NASFA any goods or services, or (b) a
beneficial interest in any material contract or agreement to which NASFA is a
party or by which it may be bound or affected. Except as disclosed in its SEC
Filings, there are no existing material arrangements or proposed material
transactions between NASFA and any officer, director or holder of more than five
percent (5%) of the capital stock of NASFA, or, to the best knowledge of NASFA
and the Seller, any affiliate or associate of any such person.
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Section 2.16 ERISA. NASFA does not maintain, sponsor, or contribute to
any program or arrangement that is an "employee pension benefit plan," an
"employee welfare benefit plan," or a "multi-employer plan", as those terms are
defined in Sections 3(2), 3(l), and 3(37) of the Employee Retirement Income
Security Act of 1974, as amended.
Section 2.17 Environmental and Safety Laws. To the best knowledge of
NASFA and the Seller, NASFA is not in violation of any applicable statute, law
or regulation relating to the environment or occupational health and safety, and
no material expenditures are or will be required in order to comply with any
such existing statute, law or regulation.
Section 2.18 SEC Reports. NASFA has filed all periodic reports with the
Securities and Exchange Commission (the "SEC") that it has been required to file
(the "SEC Filings"), all of which have complied in all material respects with
all applicable requirements of the Securities Act and the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). As of their respective dates, each
of the SEC Filings, including, without limitation, any financial statements or
schedules included therein, did not contain any untrue statement of a material
fact or omit 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.
Section 2.19 Full Disclosure. The representations and warranties of the
Seller do not contain and will not contain, as of the date hereof and the
Closing Date, any untrue statement of a material fact or omission to state any
material fact necessary to keep the statements contained herein from being
misleading.
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF THE BUYERS
Each of the Buyers represents and warrants to the Seller the following:
Section 3.1 Corporate Authority and Legal Capacity. Each of the Buyers
has all requisite corporate power and authority, or individual legal right and
capacity, to enter into and perform its obligations under this Agreement and to
carry out the transactions contemplated hereby.
Section 3.2 No Conflict with Other Instruments. The execution, delivery
and performance of this Agreement will not result in any violation of, be in
conflict with, or constitute, with or without the passage of time or giving of
notice or both, a default under any terms or provisions of (i) the Articles of
Incorporation or Bylaws of any Buyer; (ii) any judgment, decree or order of any
court or government agency or body having jurisdiction over any Buyer or their
respective properties; (iii) any agreement, contract, understanding, indenture
or other instrument to which any Buyer is a party or by which it is bound; or
(iv) any statute, rule or governmental regulation applicable to either any.
Section 3.3 Investment Representations. The Buyers are acquiring the
NASFA Shares for their own accounts, for investment purposes and not with a view
to, or for sale in connection with, any distribution of such shares.
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Section 3.4 Fees and Commissions. Neither the Buyers nor their
affiliates have incurred any fees payable to Intermediaries in connection with
the transactions contemplated by this Agreement.
Section 3.5 Authorization; Approvals. This Agreement, when executed and
delivered by or on behalf of the Buyers, shall constitute the valid and binding
obligation of the Buyers, enforceable against the Buyers in accordance with its
terms. The Buyers have obtained or will obtain prior to the Closing Date all
necessary consents, authorizations, approvals and orders, and have made all
registrations, qualifications, designations, declarations or filings with all
federal, state or other relevant governmental authorities required on the part
of the Buyers in connection with the consummation of the transactions
contemplated by this Agreement.
ARTICLE IV - COVENANTS OF THE SELLER AND NASFA
The Seller and NASFA hereby covenant and agree with the Buyers that:
Section 4.1 Confidentiality. The Seller and NASFA will maintain in
confidence and neither disclose to any third party nor make commercial use of
all or any part of any information disclosed by the Buyers in connection with
the transactions contemplated hereunder.
Section 4.2 NASFA's Filing Obligations. With a view to making available
the benefits of certain rules and regulations of the SEC which may at any time
permit the sale of any of the NASFA Shares which may be restricted as defined in
Rule 144 to the public without registration pursuant to the Securities Act,
NASFA agrees to use its best lawful efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 at all times during which NASFA is
subject to the reporting requirements of the Exchange Act;
(b) File with the SEC in a timely manner all reports and other
documents required of NASFA under the Securities Act and the Exchange Act (at
all times during which NASFA is subject to such reporting requirements); and
(c) So long as the Buyers own any of the NASFA Shares and such
shares are restricted securities as defined in Rule 144, furnish to the Buyers
upon written request a written statement to NASFA as to its compliance with the
reporting requirements of Rule 144 and with regard to the Securities Act and the
Exchange Act (at all times during which NASFA is subject to such reporting
requirements), a copy of the most recent annual or quarterly report of NASFA and
such other reports and documents of NASFA and other information in the
possession of or reasonably obtainable by NASFA as the Buyers may reasonably
request in availing themselves of any rule or regulation of the SEC allowing the
Buyers to sell any of the NASFA Shares without registration pursuant to the
Securities Act.
Section 4.3 Removal of Legend on Certificates Representing the NASFA
Shares. NASFA shall promptly remove the legend on any certificates representing
the NASFA Shares once the provisions of the Securities Act are satisfied, upon
the written request of the Buyers. In addition,
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NASFA shall notify its transfer agent that any stop transfer instructions with
respect to the NASFA Shares have been rescinded.
Section 4.4 Officers and Directors. Promptly after the Closing, NASFA
will take such action as may be necessary to cause the officers and directors of
NASFA proposed by the Buyers to be elected and for all of its incumbent officers
and directors to resign, effective as of the Closing.
Section 4.5 Access to Information. From the date hereof to the Closing
Date, the Seller and NASFA will afford the Buyers reasonable access during
regular business hours to the books and records of NASFA and the opportunity to
ask questions of, and to receive answers from, NASFA and to obtain any
additional information, written and oral, to the extent the Seller, NASFA or any
of NASFA's agents, representatives, accountants or legal counsel has such
information or could acquire it without unreasonable effort or expense.
Section 4.6 Cooperation. Prior to the Closing, the Seller and NASFA
will cooperate with the Buyers in taking any and all actions or executing any
and all documents appropriate to consummate the transactions contemplated by
this Agreement.
Section 4.7 No New Agreements. Prior to the Closing, the Seller and
NASFA will not enter into any contracts, agreements, leases, mortgages,
instruments or promissory notes that could reasonably be expected to bound
NASFA, its business or its assets.
Section 4.8 Compensation. Prior to the Closing, NASFA will cancel and
terminate any bonus, incentive compensation, deferred compensation, profit
sharing, retirement, pension, group insurance, death benefit or other fringe
benefit plan, and any employment, compensation or consulting agreement or
arrangement.
Section 4.9 Indebtedness. Prior to the Closing, NASFA will not create,
incur, assume, guarantee or otherwise become liable with respect to any
indebtedness for money borrowed or voluntarily create, incur, assume or
guarantee any other indebtedness or obligation other than in the ordinary course
of business.
Section 4.10 No Securities Issued. Prior to the Closing, NASFA will not
issue any shares of its capital stock or enter into any contract or grant any
option, warrant or right calling for the issuance of any shares and will not
create any securities convertible into any such shares or convertible into
securities in turn so convertible or enter into any contract or grant any
option, warrant or right calling for the issuance of any such convertible
security.
Section 4.11 Repurchase; Dividends. Prior to the Closing, NASFA will
not redeem, repurchase or otherwise acquire any capital stock of NASFA or
declare or apply any dividend in cash, securities or other property.
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ARTICLE V - COVENANTS OF THE BUYERS
The Buyers hereby covenant and agree with the Seller and NASFA that:
Section 5.1 Restrictions on Transfer. The Buyers (a) will not offer,
sell, transfer, give, pledge, hypothecate or otherwise dispose of the NASFA
Common Stock, unless such offer, sale, transfer, gift, pledge, hypothecation or
other disposition is in compliance with the Securities Act and applicable state
securities laws, and (b) subject to the obligations of NASFA pursuant to Section
4.3 hereof, the certificate(s) representing the NASFA Shares shall bear a legend
stating in substance:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS AND ARE
"RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144
UNDER THE ACT. NEITHER THE SHARES NOR ANY INTEREST THEREIN MAY
BE OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND SUCH STATE SECURITIES LAWS OR AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS.
Section 5.2 Transfer Instructions. NASFA may provide for appropriate
transfer instructions to implement the provisions of Section 5.1 hereof.
Section 5.3 Cooperation. Prior to the Closing, the Buyers will
cooperate with the Seller and NASFA in taking any and all actions or executing
any and all documents appropriate to consummate the transactions contemplated by
this Agreement.
ARTICLE VI - CONDITIONS TO THE CLOSING OF THE SELLER AND NASFA
The obligation of the Seller and NASFA on the Closing Date to sell,
transfer and assign to the Buyers the NASFA Shares and to perform the additional
covenants set forth in this Agreement shall be subject to each of the following
conditions precedent, any one or more of which may be waived by the Seller and
NASFA:
(a) Representations and Warranties. The representations and
warranties made by the Buyers herein shall be true and accurate in all material
respects on and as of the Closing Date as if made on the Closing Date.
(b) Performance. The Buyers shall have performed and complied
with all agreements and conditions contained herein required to be performed or
complied with by them prior to or at the Closing.
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(c) Consents. The Buyers shall have secured all permits,
consents and authorizations that shall be necessary or required lawfully to
consummate the transactions contemplated by this Agreement.
(d) Compliance Certificates. The Buyers shall have delivered
to the Seller and NASFA at the Closing certificates to the effect that all
conditions specified in Article VI, Sections (a) to (c) hereof, inclusive, have
been fulfilled.
(e) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions shall be
reasonably satisfactory in substance and form to the Seller and NASFA.
ARTICLE VII - CONDITIONS TO THE CLOSING OF THE BUYERS
The obligation of the Buyers on the Closing Date to purchase the NASFA
Shares shall be subject to each of the following conditions precedent, any one
or more of which may be waived by the Buyers:
(a) Representations and Warranties. The representations and
warranties made by the Seller and NASFA herein shall be true and accurate in all
material respects on and as of the Closing Date as if made on the Closing Date.
(b) Performance. The Seller and NASFA shall have performed and
complied with all agreements and conditions contained herein and other documents
incident to the transactions contemplated by this Agreement required to be
performed or complied with by any of them prior to or at the Closing.
(c) Consents. The Seller and NASFA shall have secured all
permits, consents and authorizations that shall be necessary or required
lawfully to consummate the transactions contemplated by this Agreement.
(d) Compliance Certificates. The Seller and NASFA shall have
delivered to the Buyers or their representative at the Closing certificates to
the effect that all conditions specified in Article VII, Sections (a) to (c)
hereof, inclusive, have been fulfilled.
(e) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions shall be
reasonably satisfactory in substance and form to the Buyers, and the Buyers
shall have received all such counterpart originals or certified or other copies
of such documents as the Buyers may reasonably request.
(f) Audited Financial Statements. The Seller and NASFA shall
have furnished the Buyers with NASFA's audited financial statements for the
fiscal years ended December 31, 1997 and December 31, 1998, and those financial
statements shall materially conform to the Financial Statements discussed in
Section 2.5 hereof with regards to preparation and contents.
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(g) Reverse Stock Split. NASFA shall have effected a reverse
stock split of the NASFA Common Stock at the ratio of 1.7 shares to 1 share.
(h) Corporate Name. The corporate name of NASFA shall have
been changed to Royal Holding Services Ltd.
(i) Cancellation of Indebtedness and Agreements. All
indebtedness and agreements of NASFA shall have been satisfied, discharged or
canceled, all agreements between NASFA and the Seller or its affiliates shall
have been terminated and all accrued compensation or other amounts payable shall
have been waived, and NASFA shall have delivered evidence thereof to the Buyers.
(j) Dissenters' Rights. No shareholders of NASFA shall have
exercised any dissenters' rights in connection with this Agreement.
(k) Corporate Documents, Stock Certificates and Stock Transfer
Records. NASFA's certified Articles of Incorporation, Bylaws, corporate minutes,
stock certificates and stock transfer records shall have been delivered to
counsel to the Buyers.
(l) Registration Rights Agreement. NASFA and the Buyers shall
have executed and delivered a Registration Rights Agreement.
ARTICLE VIII - SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND
INDEMNIFICATION
Section 8.1 Survival of Representations and Warranties. All
representations, warranties, covenants, and agreements made or to be performed
by NASFA, the Seller or the Buyers pursuant to this Agreement will survive the
execution and delivery hereof and the Closing hereunder, and will thereafter
terminate and expire on the date which is two (2) years after the Closing, with
respect to any "General Claim" (as herein defined) which has not occurred or
arisen on or before such date. As used in this Agreement, "General Claim" means
any claim based upon, arising out of or otherwise related to any material
inaccuracy in any representation or warranty or any breach of any covenant or
agreement made by any of the parties in or pursuant to this Agreement.
Section 8.2 Obligations of the Seller. The Seller agrees to indemnify,
defend and hold the Buyers (and each of their beneficiaries, affiliates and
assigns) harmless from and against all losses, costs, deficiencies, damages,
consequential damages (including, but not limited to, interruptions of business
and costs of remedial actions), fines, penalties and liabilities incurred, and
all expenses (including, but not limited to reasonable attorneys' fees) arising
out of or otherwise related to any General Claim (collectively, "Losses," and
individually, a "Loss"), net of any insurance recovery actually received
relating to such Loss.
Section 8.3 Obligations of the Buyers. The Buyers agree to indemnify,
defend and hold the Seller (and each of its beneficiaries, affiliates and
assigns) harmless from and against all Losses, net of any insurance recovery
actually received relating to such Loss.
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Section 8.4 Notice of Loss or Asserted Liability. Promptly after (a)
becoming aware of circumstances that have resulted in a Loss for which any
indemnified party (the "Indemnitee") intends to seek indemnification, or (b)
receipt by the Indemnitee of written notice of any demand, claim or
circumstances which, with or without the lapse of time, the giving of notice or
both, would give rise to a claim or the commencement (or threatened
commencement) of any action, proceeding or investigation (an "Asserted
Liability") that may result in a Loss, the Indemnitee will give notice thereof
to any other party (or parties) obligated to provide indemnification (the
"Indemnifying Party").
Section 8.5 Opportunity to Contest. The Indemnifying Party may elect to
compromise or contest, at its own expense and by its own counsel, any Asserted
Liability. If the Indemnifying Party elects to compromise or contest such
Asserted Liability, it will within thirty (30) days after receiving notice of
the claim from Indemnitee (or sooner, if the nature of the Asserted Liability so
requires) notify the Indemnitee in writing of its intent to do so, and the
Indemnitee will cooperate, at the expense of the Indemnifying Party, in the
compromise or contest of such Asserted Liability. If the Indemnifying Party
elects not to compromise or contest the Asserted Liability, fails to so notify
the Indemnitee of its election as herein provided or contests its obligation to
indemnify under this Agreement, the Indemnitee (upon further notice to the
Indemnifying Party) will hereafter have the right to pay, compromise or contest
such Asserted Liability on behalf of and for the account and risk of the
Indemnifying Party, subject to the right of the Indemnifying Party to assume the
compromise or contest of such Asserted Liability at any time before final
settlement or determination thereof. In any event, the Indemnitee and the
Indemnifying Party may participate, at their own expense, in the contest of such
Asserted Liability. If the Indemnifying Party chooses to contest any Asserted
Liability, the Indemnitee will make available to the Indemnifying Party any
books, records or other documents within its control that are necessary or
appropriate for, will make its officers and employees available, on a basis
reasonably consistent with their other duties, in connection with, and will
otherwise cooperate with, such defense.
ARTICLE IX - TERMINATION
Section 9.1 Termination of Agreement. This Agreement may be terminated:
(a) Prior to the Closing, by the mutual written consent of the
parties;
(b) At the Closing, by the Buyers in writing, without
liability, if the Seller or NASFA (i) fails to perform in any material
respect any act required on or prior to the Closing, or (ii) materially
breaches any of its representations, warranties or covenants in this
Agreement;
(c) At the Closing, by the Seller in writing, without
liability, if the Buyers (i) fail to perform in any material respect
any act required on or prior to the Closing, or (ii) materially breach
any of their representations, warranties or covenants in this
Agreement; or
11
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(d) At any time, by any party in writing, without liability,
if any court or governmental or regulatory agency order, writ,
injunction, or decree prohibits or restrains any party from
consummating the transactions contemplated here.
(e) If the Closing does not occur by the Closing Date, by the
Seller or the Buyers.
Section 9.2 Termination of Obligations. Termination of this Agreement
pursuant to this Article will terminate all of the parties' obligations.
However, termination pursuant to Sections 9.1(b), (c) or (e) hereof will not
relieve a defaulting or breaching party from any liability to any other party.
Within fifteen (15) days after this Agreement is terminated, each party will,
upon written request from any other party, return all documents and copies
previously delivered to it or made in connection with this Agreement.
ARTICLE X - SELLER'S OPTION
The Parties to this Agreement recognize that an essential factor
motivating the Seller is NASFA's purchase of approximately 54% of the issued and
outstanding shares of Modiluft Ltd., an Indian company formed to carry out
domestic airline operations. Therefore, the Parties hereto expressly agree that
in the event NASFA does not purchase the shares of Modiluft Ltd. as currently
contemplated within one-hundred-twenty (120) days of the Closing Date, the
Seller shall have ten (10) days within which to provide the Buyers with notice
of its decision to exercise an option to repurchase the NASFA Shares from the
Buyers for the Cash Purchase Price (the "Option").
Should the Seller decide to exercise the Option, the Parties agree to
carry out the sale, assignment, transfer and delivery to the NASFA Shares from
the Buyers to the Seller in good faith and within thirty (30) days.
Should the Seller fail to provide each of the Buyers with notice of its
decision to exercise the Option within the ten (10) day time limit set forth
above, the Option shall automatically expire, with no obligation on the Buyers
to notify the Seller of such expiration, and the Seller shall be barred from
making further attempts to recover the NASFA Shares.
ARTICLE XI - MISCELLANEOUS
Section 11.1 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements and
understandings, oral and written, between the parties hereto with respect to the
subject matter hereof. No party shall be liable or bound to any other party in
any manner by any warranties, representation, or covenants except as
specifically set forth herein.
Section 11.2 Survival of Representations and Warranties. The
warranties, representations and covenants of the Buyers, the Seller and NASFA
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing.
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Section 11.3 Notices. All notices, requests, demands, consents and
other communications herein shall be in writing and shall be deemed, unless
otherwise specified herein, to have been duly given if personally delivered or
mailed, first-class certified mail, postage prepaid and return receipt requested
or sent by recognized overnight courier service or transmitted by telex or
facsimile, as follows:
(a) If to the Buyers:
Xxxx X. Xxxxxxxx
#0-0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx Xxxxxxxx X00-0X0
Xxxxxx
Facsimile No. (000) 000-0000
with a copy to (which shall not constitute
effective notice to the Buyers):
Xxxxxx X. Xxxxxx, Esq.
L. Xxxxx Xxxxx, Esq.
Xxxxx, Xxxxxx & Xxxxxx LLP
3100 Bank One Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile No. (000) 000-0000
(b) If to NASFA or the Seller:
Xxxx X. Xxxxx
Xxxxx American Security & Fire Acquisitions, Inc.
Intrepid International, S.A.
00000 Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxxxxx 00000
with a copy to (which shall not constitute
effective notice to NASFA or the Seller):
Xxxxxxx Xxxxxxx, Esq.
00000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
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and
Xxxx X. Xxxxxxxxx, Esq.
The Security Centre
000 Xxxxxxxxxx Xxxxxx, Xx. 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Facsimile No. (000) 000-0000
or such other addresses as each of the parties hereto may provide from time to
time in writing to the party. For purposes of computing the time periods set
forth in this Section, the delivery date shall be deemed to be (i) three (3)
days after the date of mailing, (ii) the date personally delivered or sent by
telex or facsimile, or (iii) the business day after the date sent by recognized
overnight courier service.
Section 11.4 Amendments. Any term of this Agreement may be amended only
with the written consent of the parties hereto.
Section 11.5 Waiver and Consent. No action taken pursuant to this
Agreement, including any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of compliance with
any party hereto or a breach of any representations, warranties, covenants or
agreements contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
preceding or succeeding breach, and no failure by any party to exercise any
right or privilege hereunder shall be deemed a waiver of such party's rights or
privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
Section 11.6 Successors and Assigns. Except as otherwise expressly
provided in this Agreement, all of the terms of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto.
Section 11.7 Execution and Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, and
all of which together shall constitute one instrument.
Section 11.8 No Third Party Beneficiaries. Except as otherwise
provided, this Agreement has been and is made solely for the benefit of and
shall be binding upon the Buyers, the Seller and NASFA, and no other person
shall acquire or have any rights under or by virtue of this Agreement.
Section 11.9 Severability. Any provision of this Agreement that is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or lack of authorization without invalidating the remaining
provisions hereof or affecting the validity, unenforceability or legality of
such provision in any other jurisdiction.
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Section 11.10 GOVERNING LAW. THIS AGREEMENT AND THE LEGAL RELATIONS
AMONG THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO ITS CONFLICTS OF LAW DOCTRINE.
[INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the date first above written.
GAMPADONA LIMITED
/s/ Corporate Board Limited
------------------------------------
as Director
ODADALE PORTFOLIO, INC., BAHAMAS
/s/ Xxxxx XxXxxxxx /s/ Pachridee Xxxxx
------------------------------------ --------------------------
XXXXX XXXXXXXX PACHRIDEE XXXXX
Chairman Secretary
BOSHOF HOLDING, INC., PANAMA
/s/ Xxxx May Xxxxx /s/ Xxxxxxx X. Xx Xxxxxxx
------------------------------------ --------------------------
XXXX MAY XXXXX XXXXXXX X. XX XXXXXXX
Director Director
SEBIRA FINANCIAL, INC., BELIZE
/s/ Xxxx X. Xxxx /s/ Xxxxxx X. Xxxxx
------------------------------------ --------------------------
XXXX X. XXXX XXXXXX X. XXXXX
Director Director
CUMBRIAN TRADING LTD.
/s/ First Executive Directors, Inc.
------------------------------------
By: First Company Directors, Inc.
/s/ Xxx Lezard
------------------------------------
XXX LEZARD
/s/ Xxxx Xxxxxxxx
------------------------------------
XXXX XXXXXXXX
20
/s/ Xxxxx Xxxx
--------------------------------------------------
XXXXX XXXX
/s/ Xxx Xxxxxx
--------------------------------------------------
XXX XXXXXX
/s/ Xxxxxxx Xxxxxxx
--------------------------------------------------
XXXXXXX XXXXXXX
/s/ Xxxx Xxxxxxx
--------------------------------------------------
XXXX XXXXXXX
/s/ Xxxx Xxxxxxx
--------------------------------------------------
XXXX XXXXXXX
/s/ G. Xxxxx Xxxxxxx
--------------------------------------------------
G. XXXXX XXXXXXX
NORTH AMERICAN SECURITY & FIRE
ACQUISITIONS, INC.
/s/ Xxxx X. Xxxxx
--------------------------------------------------
By: XXXX X. XXXXX, PRESIDENT
INTREPID INTERNATIONAL, S.A.
/s/ J. Xxx Xxxxxxx
--------------------------------------------------
By: J. XXX XXXXXXX, UNITED STATES MANAGING PARTNER
21
EXHIBIT A
LIST OF BUYERS
Name and Address No. of NASFA Shares Amount
---------------- ------------------- ------
GAMPADONA LIMITED 612,000 $14,758.00
Xxxxx Xxxxx
000, Xxxxxxx Xxxxxx
Kingstown
Saint Xxxxxxx, W.I.
ODADALE PORTFOLIO, INC. 579,000 $13,957.00
00 Xxxxxxx Xxxxxx
X. X. Xxx XX - 00000
Nassau
Bahamas
BOSHOF HOLDING, INC. 569,000 $13,716.00
x/x Xxxxxx x Xxxxxx
00xx Xxxxxx
Xxxxxxxxxxxx Xxxxxxx
Xxxxx Tower, 16th Floor
Panama
Republic of Panama
SEBIRA FINANCIAL, INC. 580,000 $13,981.00
Jasmin Court
00 X Xxxxxx Xxxxxx
X. X. Xxx 0000
Xxxxxx Xxxx
Xxxxxx
CUMBRIAN TRADING LTD. 560,000 $13,499.00
Lake Building, 1st Floor
Wickhams Cay 1
P. O. Box 3152
Road Town
Tortola
British Virgin Islands
A-1
22
Name and Address No. of NASFA Shares Amount
---------------- ------------------- ------
XXX LEZARD 100,000 $ 2,410.00
#0 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxx
GU 206 DB
XXXX XXXXXXXX 200,000 $ 4,821.00
0000 X. 00xx Xxx.
Xxxxxxxxx, X.X.
Xxxxxx
X0X 0X0
XXXXX XXXX 200,000 $ 4,821.00
0000 Xxxx Xxxxxxxx Xxxxxx, Xxx. 0000
Xxxxxxxxx, X.X.
Xxxxxx
X0X 0X0
XXX XXXXXX 50,000 $ 1,205.00
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, X.X.
Xxxxxx
X0X 0X0
XXXXXXX XXXXXXX 564,000 $13,595.00
Xxxxxxxxxxxxxxxxxxx
#00 00000
Xxxxxx
Xxxxxxx
XXXX XXXXXXX 590,000 $14,222.00
Xxx 000
Xxxxxx Xxxx
Turks & Caicos Islands
B.W.I.
A-2
23
Name and Address No. of NASFA Shares Amount
---------------- ------------------- ------
XXXX XXXXXXX 776,890 $ 18,727.00
Corporate Consulting Group
Xxxxxxxxxxxxxx 00
Xxxxxx
Xxxxxxxxxxx
G. XXXXX XXXXXXX 841,637 $ 20,288.00
Synergy International
Xxxx Xxx Xxxxxx
Xxxxx X-00
P. O. Box N-1836
Nassau, Bahamas
========= ===========
TOTAL 6,222,527 $ 150,000
A-3
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EXHIBIT B
SELLERS OF NASFA SHARES:
Intrepid International, S.A.
Exim International Enterprises, X.X.
Xxxxxxxx Worldwide Limited, S.A.
Indiasa, S.A.
Overseas Aviation Corporation
B-1
