AGREEMENT FOR THE EXCHANGE OF STOCK
THIS AGREEMENT FOR THE EXCHANGE OF STOCK ("Agreement") is entered into this
29TH day of June 1998 by and between AmeriResource Technologies, Inc., a
Delaware corporation, ("AmeriResource"), First Americans Mortgage Corp., a
Missouri corporation ("FAMC"), and the Shareholders of FAMC, a group of two
individuals who collectively own 100% of the outstanding capital stock of FAMC
("Shareholders"). The Shareholders and their holdings in FAMC are identified in
Exhibit A to this Agreement.
RECITALS
WHEREAS, FAMC and the Shareholders desire to exchange and transfer 100% of
FAMC's capital stock to AmeriResource, and AmeriResource desires to acquire any
and all rights and interests in and to all of the issued and outstanding capital
stock of FAMC in exchange for certain restricted shares of AmeriResource's
common stock to be issued to the Shareholders;
WHEREAS, the Parties desire to make this transaction a tax-free exchange of
stock under the Internal Revenue Code of 1986, as amended (the "Code").
AGREEMENT
NOW, THEREFORE, based on the foregoing premises, which are incorporated
herein by this reference, and for and in consideration of the mutual covenants
and agreements contained herein, and in reliance on the representations and
warranties set forth in this Agreement, the benefits to be derived herein and
for other valuable consideration, the sufficiency of which is hereby expressly
acknowledged, the Parties agree as follows:
1. Consideration and Exchange of Shares. At the closing, as defined in Section 6
("Closing"), Shareholders agree to exchange, assign, transfer and convey
exclusively to AmeriResource all 30,000 of the issued and outstanding shares of
capital stock of FAMC (" FAMC Shares").
At Closing, AmeriResource will issue a total of 70,000,000 shares (the
"AmeriResource Shares") of its common stock, $0.0001 par value ("Common Stock"),
to the Shareholders in the amounts specified in Exhibit A. All of the
AmeriResource Shares to be issued to the Shareholders shall not have been
registered under the Securities Act of 1933, as amended (the "Act"), but shall
have been issued pursuant to Section 4(1) of the Act and shall be restricted as
to resale pursuant to Rule 144 promulgated under the Act. From and after
Closing, FAMC will be a wholly-owned subsidiary of AmeriResource.
2. FAMC Organizational Structure. The Articles of Incorporation and By-Laws, as
in effect immediately prior to the Closing, shall continue in full force and
effect, without any modification or amendments. The directors and officers of
FAMC immediately prior to the Closing shall be the directors and officers of
FAMC, until otherwise provided by law, the Articles of Incorporation or by the
By-Laws of FAMC.
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3. Representation and Warranties of FAMC and Shareholders. In connection with
the AmeriResource shares to be issued pursuant to Paragraph 1 and 2, Purchaser
and the Shareholders represent and warrant that:
a. Shareholders are acquiring the AmeriResource Shares for their own
account and not with a view to any distribution within the meaning of the
Act. Shareholders acknowledge that they have been advised and made aware
that: (i) AmeriResource is relying upon an exemption under the Act
predicated upon the representations and warranties contained in this
Agreement; and (ii) the AmeriResource Shares to be issued to Shareholders
pursuant to this Agreement will be "restricted stock" within the meaning of
Rule 144 of the Act. Unless and until the AmeriResource Shares are
registered under the Act, they will be subject to limitations upon resale
set forth in Rule 144.
b. Shareholders have received all of the information they consider
necessary and appropriate for determining whether to acquire the
AmeriResource Shares pursuant to this Agreement. Shareholders are familiar
with the business, affairs, risks and properties of AmeriResource.
Shareholders have had an opportunity to ask questions of and receive
answers from AmeriResource and its officers, directors, consultants and
representatives regarding AmeriResource and the terms and conditions of the
exchange of the Shares. Shareholders have had the opportunity to obtain any
additional information AmeriResource possesses (or could acquire without
unreasonable effort or expense) necessary to verify the accuracy of the
information furnished.
c. Shareholders have such knowledge and expertise in financial and business
matters that they are capable of evaluating the merits and substantial
risks of an investment in the AmeriResource Shares and are able to bear the
economic risks relevant to the acquisition of the AmeriResource Shares
hereunder.
d. Shareholders are relying solely upon independent consultation with their
professional, legal, tax, accounting and any other advisors as they deem to
be appropriate in acquiring the AmeriResource Shares; Shareholders have
been advised by, and have consulted with, their professional tax and legal
advisors with respect to any tax consequences of investing in
AmeriResource.
e. Shareholders understand that there may be no market for the
AmeriResource Shares.
f. The Shareholders' financial condition is such that they are under no
present or contemplated future need to dispose of any portion of the
AmeriResource Shares to satisfy any existing or contemplated undertaking,
need or indebtedness.
g. Without in any way limiting the representations set forth above,
Shareholders further agree not to dispose of all or any portion of the
AmeriResource Shares unless and until:
(1) There is then in effect a registration statement or exemption
under the Act covering such proposed disposition and such
disposition is made in accordance with the requirements of such
registration statement or exemption; or
(2) They shall have notified AmeriResource of the proposed
disposition and shall have furnished AmeriResource with a detailed
statement of the circumstances surrounding the proposed
disposition, and, if requested by AmeriResource, Shareholders
shall have furnished AmeriResource with an opinion of counsel,
reasonably satisfactory to AmeriResource and its
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counsel, that such disposition is proper under the applicable
rules and regulations promulgated under the Act.
h. It is understood that the certificates evidencing the AmeriResource
Shares will bear substantially the following legend:
"The securities evidenced hereby have not been registered under
the Securities Act of 1933, as amended (the "Act"), nor qualified
under the securities laws of any states, and have been issued in
reliance upon exemptions from such registration and qualification
for non-public offerings. Accordingly, the sale, transfer, pledge,
hypothecation, or other disposition of any such securities or any
interest therein may not be accomplished except pursuant to an
effective registration statement or exemption under the Act and
qualification under applicable State securities laws, or pursuant
to an opinion of counsel, satisfactory in form and substance to
the Issuer to the effect that such registration or exemption and
qualification are not required."
i. FAMC confers full authority upon AmeriResource: (i) to instruct its
transfer agent not to transfer any of the Shares until it has received
written approval from AmeriResource; and (ii) to affix the legend in
Subsection (h) above to the face of the certificate or certificates
representing the Shares.
j. Shareholders understand that AmeriResource is relying upon the
Shareholders' representations and warranties as contained in this Agreement
in consummating the sale and transfer of the AmeriResource Shares without
registering them under the Act or any law. Therefore, Shareholders agree to
indemnify AmeriResource against, and hold it harmless from, all losses,
liabilities, costs, penalties and expenses (including attorney's fees)
which may arise as a result of a sale, exchange or other transfer of the
AmeriResource Shares other than as permitted under this Agreement.
Shareholders further understand and agree that AmeriResource will make an
appropriate notation on its transfer records of the restrictions applicable
to these Shares.
k. FAMC has fully disclosed its financial condition to AmeriResource and
has not misrepresented any facts about its business development or
operations. FAMC further warrants that it has never filed a voluntary
petition for protection under the Bankruptcy Act, as amended, nor has it
been subject to an involuntary petition filed by one or more of its
creditors; nor is FAMC subject to any actual or potential claims of
creditors not arising out of the ordinary course of business, unless such
claims are specifically disclosed to AmeriResource in writing and attached
hereto as an exhibit.
l. At Closing, Shareholders and the management of FAMC will
deliver a certificate attesting, among other things, that there will have
been no material changes in the condition of the business or finances of
FAMC and that all corporate authority has been duly taken by FAMC to enter
into and close this transaction; that there are no material undisclosed
liabilities, claims, or judgments against FAMC; and that all legal and
governmental regulations or authorities will have been complied with, or
arrangements made for compliance, including arrangements for any such
outstanding liabilities, claims, or judgments.
m. FAMC shall deliver, within sixty (60) days after Closing, a
business plan, satisfactory to AmeriResource, which discloses FAMC's
two-year plan of operation including, but not limited to: (i) revenue and
cost projections; (ii) anticipated capital needs; (iii) known trends,
events or uncertainties
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likely to have a material impact upon FAMC's operations; and (iv) any
formal or informal marketing plans adopted by FAMC.
4. Representations and Warranties of AmeriResource. AmeriResource represents and
warrants that:
a. It is a corporation duly organized and validly existing under the laws
of the State of Delaware, United States of America.
b. It has all necessary corporate power and authority under the laws of
Delaware and all other applicable provisions of law to own its properties
and other assets now owned by it, to carry on its business as now being
conducted, and to execute, deliver and carry out the provisions of this
Agreement.
c. All corporate actions on its part required for the lawful execution and
delivery of this Agreement and for the issuance, execution and delivery of
the AmeriResource Shares have been duly and effectively taken. Upon
execution and delivery, this Agreement will constitute AmeriResource's
valid and binding obligation, enforceable in accordance with its terms,
except as the enforceability may be limited by applicable bankruptcy,
insolvency or similar laws and judicial decisions affecting creditors'
rights generally.
d. AmeriResource has received all of the information it considers
necessary and appropriate for determining whether to acquire FAMC's common
stock. AmeriResource is familiar with the business, affairs, risks and
properties of FAMC. AmeriResource has had an opportunity to ask questions
of and receive answers from FAMC and its officers, directors, Shareholders
and representatives regarding FAMC and the terms and conditions of the
exchange of the common stock. AmeriResource has had the opportunity to
obtain any additional information FAMC possesses or could acquire without
unreasonable effort or expense necessary to verify the accuracy of the
information furnished.
5. Survival of Representations, Warranties and Covenants. The representations,
warranties and covenants made respectively by AmeriResource, the Shareholders
and FAMC in this Agreement shall survive the Closing and the exchange of the
respective securities called for hereunder.
6. Closing. The Closing shall occur when the securities, documentation and
consideration required to be transferred hereunder have been delivered to the
appropriate Parties to this Agreement and all corporate action necessary to
effect this Agreement has been taken. Closing hereunder shall occur at a place
and time as mutually agreed by the Parties, but in no event shall Closing occur
later than sixty (60) days after the date of execution hereof. Failure to
deliver the securities or documentation required hereunder within 60 days shall
constitute a breach of a material condition of this Agreement.
7. Tax-free Exchange. Insofar as possible, the Parties agree that the exchange
of shares called for hereunder shall be a tax-free exchange under the tax laws
and the Code, and not an acquisition of assets.
8. Conditions to Closing. The Closing called for hereunder shall be subject to,
among other things:
a. The delivery of the FAMC Shares and the other information called for
herein by FAMC and Shareholders to AmeriResource and the delivery of the
AmeriResource Shares and the other information called for herein by
AmeriResource to FAMC and Shareholders;
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b. The successful completion of due diligence by AmeriResource or its
agent, satisfactory to the management of AmeriResource, that the books,
records, and assets and liabilities of FAMC are in fact as have been
represented;
c. Resolutions by the respective boards of directors of AmeriResource and
FAMC ratifying this transaction;
d. Duly notarized affidavits from Shareholders that they have valid right,
title and interest in and to the shares being transferred, free of any and
all claims or liens thereon.
9. Miscellaneous. The following provisions are made part hereof:
a. In the event any one or more of the provisions contained in this
Agreement are for any reason held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
effect any other provisions of this Agreement. This Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
b. This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective heirs, legal representatives, successors and
permitted assigns. The Parties may not transfer or assign all or any part
of their rights or obligations except to the extent expressly permitted by
this Agreement or otherwise agreed to in writing by all Parties.
c. This Agreement constitutes the entire agreement and understanding among
the Parties, and may not be modified or amended except pursuant to a
writing signed by all Parties.
d. No term or condition of this Agreement shall be deemed to have been
waived nor shall there be any estoppel to enforce any provision of this
Agreement except by written instrument of the party charged with such
waiver or estoppel.
e. If any action at law or in equity, including an action for
declaratory relief, is brought to enforce or interpret the provisions of
this Agreement, the prevailing party shall be entitled to recover actual
attorney's fees, court costs or other costs incurred in proceeding with the
action from the other party. The attorney's fees, court costs or other
costs may be ordered by the court in its decision of any action described
in the Paragraph or may be enforced in a separate action brought for
determining attorney's fees, court costs or other costs. Should either
party be represented by in-house counsel, such party may recover attorney's
fees incurred by that in-house counsel in an amount equal to that
attorney's normal fees for similar matters, or, should that attorney not
normally charge a fee, by the prevailing rate charged by attorneys with
similar backgrounds in that legal community.
f. The validity, interpretation, and performance of this Agreement
shall be governed by the laws of the State of Kansas, without regard to its
law on the conflict of laws. Any dispute arising out of this Agreement
shall be brought in a court of competent jurisdiction in Xxxxxxx County,
State of Kansas. The parties exclude any and all statutes, laws and
treaties which would allow or require any dispute to be decided in another
forum or by other rules of decision than provided in this Agreement.
g. This Agreement may be executed in one or more counterparts,
including electronic mail or facsimile, each of which may be
considered an original copy hereof.
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h. Any notices required hereunder shall be sent:
If to AmeriResource:
AmeriResource, Inc. c/o Xxxxxx X. Xxxxxxx
X.X. Xxx 00000
Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000
Phone: 000-000-0000
If to FAMC:
FAMC Corporation
X.X. Xxx 00000
Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000
Phone: 000-000-0000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
"AmeriResource" - AMERIRESOURCE "FAMC" - FIRST AMERICANS MORTGAGE CORP.
TECHNOLOGIES, INC.
Xxx Xxxxxxx, Director Xxxxxx Xxxxxxxx, President
SHAREHOLDERS OF FIRST AMERICANS
MORTGAGE CORP.
------/s/Xxxxxx Xxxxxxx--------------
Xxxxxx X. Xxxxxxx
-------/s/Xxxxxx Xxxxxxxx-------------
Xxxxxx Xxxxxxxx
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