THIS AGREEMENT AND PLAN OF SHARE EXCHANGE (hereinafter referred to as the
"Agreement"), is entered into as of this 26th day of September, 2006, by and
among, AMASYS CORPORATION, a publicly owned Delaware corporation ("Amasys"),
WORLD MINERAL CORPORATION, a Nevada corporation ("WMC"), and the shareholders of
WMC on the signature page hereof (the "WMC Shareholders"). Amasys, WMC and the
WMC Shareholders are sometimes hereinafter collectively referred to as the
"Parties" and individually as a "Party.")
W I T N E S S E T H
WHEREAS, Amasys is a publicly-owned Delaware corporation with a class of
common stock, par value $.01 per share (the "Amasys Common Stock"), registered
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") which trades on the Pink Sheets under the symbol "AMAS".
WHEREAS, the WMC Shareholders listed on Schedule I hereto own all of the
issued and outstanding shares of the common stock of WMC (the "WMC Common
Stock").
WHEREAS, the Parties desire that Amasys acquire all of the WMC Common Stock
from the WMC Shareholders solely in exchange for an aggregate of 14,775,000
newly issued shares of common stock (the "Exchange Shares") pursuant to the
terms and conditions set forth in this Agreement.
WHEREAS, immediately upon consummation of the Closing (as hereinafter
defined), the Exchange Shares will be issued to the WMC Shareholders on a pro
rata basis, in proportion to the ratio that the number of shares of WMC Common
Stock held by such WMC Shareholder bears to the number of shares of WMC Common
Stock held by all the WMC Shareholders as of the date of the Closing.
WHEREAS, following the Closing, WMC will become a wholly-owned subsidiary
of Amasys and the Exchange Shares will represent approximately 74% percent of
the total outstanding shares of Common Stock of Amasys.
WHEREAS, the Parties intend that the transaction contemplated herein (the
"Transaction") qualify as a reorganization and tax-free exchange under Section
368(a) of the Internal Revenue Code of 1986, as amended.
NOW THEREFORE, on the stated premises and for and in consideration of the
foregoing recitals which are hereby incorporated by reference, the mutual
covenants and agreements hereinafter set forth and the mutual benefits to the
Parties to be derived herefrom and for other good and valuable consideration,
the sufficiency and receipt of which are hereby acknowledged, the Parties hereto
agree as follows:
ARTICLE I
PLAN OF EXCHANGE
1.1 The Exchange. At the Closing (as hereinafter defined), each share of
WMC Common Stock issued and outstanding immediately prior to the Closing Date
shall be exchanged for 14.775 shares of Amasys Common Stock. The aggregate
number of shares of Amasys Stock exchanged for the WMC Shares pursuant to this
Agreement shall be 14,775,000 ("Aggregate Amasys Common Stock"). From and after
the Closing Date, the WMC Shareholders shall no longer own any shares of WMC
Common Stock, and the stock certificates formerly representing shares of WMC
Common Stock shall represent the pro rata portion of the Exchange Shares
issuable in exchange therefor pursuant to this Agreement. Any fractional shares
that would result from such exchange will be rounded up to the next highest
whole number so long as no more than the Aggregate Amasys Common Stock is
issued.
1.2 Closing. The closing ("Closing") of the transactions contemplated by
this Agreement shall occur immediately following the satisfaction or waiver of
the closing conditions set forth in Articles V and VI (the "Closing Date").
1.3 Closing Events. At the Closing, each of the respective parties hereto
shall execute, acknowledge, and deliver (or shall cause to be executed,
acknowledged, and delivered) any and all stock certificates, officers'
certificates, opinions, financial statements, schedules, agreements,
resolutions, rulings, or other instruments required by this Agreement to be so
delivered at or prior to the Closing, and the documents and certificates
provided in Sections 5.2, 5.4, 6.2, 6.4 and 6.5, together with such other items
as may be reasonably requested by the parties hereto and their respective legal
counsel in order to effectuate or evidence the transactions contemplated hereby.
If agreed to by the parties, the Closing may take place through the exchange of
documents (other than the exchange of stock certificates) by efax, fax, email
and/or express courier. At the Closing, the Exchange Shares shall be issued in
the names and denominations provided by WMC.
1.4 Standstill.
(a) Until the earlier of the Closing or December 25, 2006 (the "No Shop
Period"), neither WMC nor the WMC Shareholders will (i) solicit or
encourage any offer or enter into any agreement or other
understanding, whether written or oral, for the sale, transfer or
other disposition of any capital stock or assets of WMC to or with any
other entity or person, except as contemplated by the Transaction,
other than sales of goods and services by WMC in the ordinary course
of its business; (ii) entertain or pursue any unsolicited
communication, offer or proposal for any such sale, transfer or other
disposition; or (iii) furnish to any person or entity (other than
Amasys, and its authorized agents and representatives) any nonpublic
information concerning WMC or its business, financial affairs or
prospects for the purpose or with the intent of permitting such person
or entity to evaluate a possible acquisition of any capital stock or
assets of WMC. If either WMC or any of the WMC Shareholders shall
receive any unsolicited communication or offer, WMC or the WMC
Shareholders, as applicable, shall immediately notify Amasys of the
receipt of such communication or offer.
(b) During the No-Shop Period, except for any such action Amasys
determines, in its sole discretion, is required in accordance with its
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fiduciary duties, Amasys will not (i) solicit or encourage any offer
or enter into any agreement or other understanding, whether written or
oral, for the sale, transfer or other disposition of any capital stock
or assets of Amasys to or with any other entity or person, except as
contemplated herein, other than sales of goods and services by Amasys
in the ordinary course of its business; (ii) entertain or pursue any
unsolicited communication, offer or proposal for any such sale,
transfer or other disposition; or (iii) furnish to any person or
entity (other than WMC , and its authorized agents and
representatives) any nonpublic information concerning Amasys or its
business, financial affairs or prospects for the purpose or with the
intent of permitting such person or entity to evaluate a possible
acquisition of any capital stock or assets of Amasys. If either Amasys
or any of Amasys' stockholders shall receive any unsolicited
communication or offer, Amasys or such Amasys stockholder, as
applicable, shall immediately notify WMC of the receipt of such
communication or offer.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF WMC
As an inducement to, and to obtain the reliance of Amasys, WMC represents
and warrants as follows:
2.1 Organization. WMC is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Nevada. WMC has the power
and is duly authorized, qualified, franchised, and licensed under all applicable
laws, regulations, ordinances, and orders of public authorities to own all of
its properties and assets and to carry on its business in all material respects
as it is now being conducted, including qualification to do business as a
foreign corporation in jurisdictions in which the character and location of the
assets owned by it or the nature of the business transacted by it requires
qualification. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of WMC's organizational
documents. WMC has taken all action required by laws, its articles of
incorporation, certificate of business registration, or otherwise to authorize
the execution and delivery of this Agreement. WMC has full power, authority, and
legal right and has taken or will take all action required by law, its Articles
of Incorporation, and otherwise to consummate the transactions herein
contemplated.
2.2 Capitalization. All issued and outstanding shares of WMC are legally
issued, fully paid, and non-assessable and were not issued in violation of the
pre-emptive or other rights of any person. WMC has no outstanding options,
warrants, or other convertible securities.
2.3 Financial Statements.
(a) WMC has filed all local income tax returns required to be filed
by it from its inception to the date hereof. All such returns are
complete and accurate in all material respects.
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(b) WMC has no liabilities with respect to the payment of federal,
county, local, or other taxes (including any deficiencies,
interest, or penalties), except for taxes accrued but not yet due
and payable, for which WMC may be liable in its own right or as a
transferee of the assets of, or as a successor to, any other
corporation or entity.
(c) No deficiency for any taxes has been proposed, asserted or
assessed against WMC. There has been no tax audit, nor has there
been any notice to WMC by any taxing authority regarding any such
tax audit, or, to the knowledge of WMC, is any such tax audit
threatened with regard to any taxes or WMC tax returns. WMC does
not expect the assessment of any additional taxes of WMC for any
period prior to the date hereof and has no knowledge of any
unresolved questions concerning the liability for taxes of WMC.
(d) The books and records, financial and otherwise, of WMC are in all
material respects complete and correct and have been maintained
in accordance with good business and accounting practices.
2.4 Information. The information concerning WMC set forth in this Agreement
and the WMC Schedules (as that term is defined herein) is and will be complete
and accurate in all material respects and does not contain any untrue statement
of a material fact or omit to state a material fact required to make the
statements made, in light of the circumstances under which they were made, not
misleading as of the date hereof and as of the Closing Date.
2.5 Common Stock Equivalents. There are no existing options, warrants,
calls, commitments of any character or other common stock equivalents relating
to the authorized and unissued WMC Common Stock.
2.6 Absence of Certain Changes or Events. Except as set forth in this
Agreement or the WMC Schedules (as that term is defined herein), as of the date
of this Agreement and as of the Closing Date:
(a) except in the normal course of business, there has not been (i)
any material adverse change in the business, operations,
properties, assets, or condition of WMC ; or (ii) any damage,
destruction, or loss to WMC (whether or not covered by insurance)
materially and adversely affecting the business, operations,
properties, assets, or condition of WMC;
(b) WMC has not (i) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or
liability (absolute or contingent) not otherwise in the ordinary
course of business, and except for capital raised by issuance of
debt or equity in a private placement or other capital raising
transaction deemed advisable by WMC; (ii) paid any material
obligation or liability not otherwise in the ordinary course of
business (absolute or contingent) other than current liabilities
reflected in or shown on the most recent WMC consolidated balance
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sheet, and current liabilities incurred since that date in the
ordinary course of business; (iii) sold or transferred, or agreed
to sell or transfer, any of its assets, properties, or rights not
otherwise in the ordinary course of business; (iv) made or
permitted any amendment or termination of any contract,
agreement, or license to which they are a party not otherwise in
the ordinary course of business if such amendment or termination
is material, considering the business of WMC; or (v) issued,
delivered, or agreed to issue or deliver any stock, bonds or
other corporate securities including debentures (whether
authorized and unissued or held as treasury stock).
2.7 Litigation and Proceedings. There are no actions, suits, proceedings,
or investigations pending or, to the knowledge of WMC, threatened by or against
WMC, or affecting WMC, or its properties, at law or in equity, before any court
or other governmental agency or instrumentality, domestic or foreign, or before
any arbitrator of any kind.
2.8 No Conflict With Other Instruments. The execution of this Agreement and
the consummation of the transactions contemplated by this Agreement will not
result in the breach of any term or provision of, or constitute an event of
default under, any material indenture, mortgage, deed of trust, or other
material contract, agreement, or instrument to which WMC is a party or to which
any of its properties or operations are subject.
2.9 Contracts. WMC has provided, or will provide Amasys, copies of all
material contracts, agreements, franchises, license agreements, or other
commitments to which WMC is a party or by which it or any of its assets,
products, technology, or properties are bound.
2.10 Compliance With Laws and Regulations. WMC has complied with all
applicable statutes and regulations of any federal, county, or other
governmental entity or agency thereof, except to the extent that noncompliance
would not materially and adversely affect the business, operations, properties,
assets, or condition of WMC.
2.11 Approval of Agreement. The board of directors of WMC (the "WMC Board")
and the WMC Shareholders have authorized the execution and delivery of this
Agreement by WMC and have approved the transactions contemplated hereby.
2.12 WMC Schedules. WMC will deliver, as soon as practicable, the following
schedules, which are collectively referred to as the "WMC Schedules" and which
consist of separate schedules dated as of the date of execution of this
Agreement and instruments and data as of such date, all certified by the chief
executive officer of WMC as complete, true and correct:
(a) a schedule containing complete and correct copies of the
organizational documents, as amended, of WMC in effect as of the
date of this Agreement; and
(b) a schedule as requested by Amasys, containing true and correct
copies of all material contracts, agreements, or other
instruments to which WMC is a party or by which it or its
properties are bound, specifically including all contracts,
agreements, or arrangements referred to in Section 2.9.
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2.13 Title and Related Matters. WMC has good and marketable title to all of
its properties, interest in properties, and assets, real and personal, which are
reflected in the WMC balance sheet or acquired after that date (except
properties, interest in properties, and assets sold or otherwise disposed of
since such date in the ordinary course of business), free and clear of all
liens, pledges, charges, or encumbrances except:
(a) statutory liens or claims not yet delinquent; and
(b) as described in the WMC Schedules.
2.14 Governmental Authorizations. WMC has all licenses, franchises,
permits, and other government authorizations, that are legally required to
enable it to conduct its business operations in all material respects as
conducted on the date hereof. Except for compliance with federal and state
securities or corporation laws, as hereinafter provided, no authorization,
approval, consent, or order of, or registration, declaration, or filing with,
any court or other governmental body is required in connection with the
execution and delivery by WMC of this Agreement and the consummation by WMC of
the transactions contemplated hereby.
2.15 Continuity of Business Enterprises. WMC has no commitment or present
intention to liquidate WMC or sell or otherwise dispose of a material portion of
its business or assets following the consummation of the transactions
contemplated hereby.
2.16 Ownership of WMC Shares. The WMC Shareholders are the legal and
beneficial owners of 100% of the WMC Common Stock as set forth on Schedule I,
free and clear of any claims, charges, equities, liens, security interests, and
encumbrances whatsoever, and the WMC Shareholders have full right, power, and
authority to transfer, assign, convey, and deliver their respective WMC Common
Stock; and delivery of such common stock at the Closing will convey to Amasys
good and marketable title to such shares free and clear of any claims, charges,
equities, liens, security interests, and encumbrances except for any such
claims, charges, equities, liens, security interests, and encumbrances arising
out of such shares being held by Amasys.
2.17 Brokers. WMC has not entered into any contract with any person, firm
or other entity that would obligate WMC or Amasys to pay any commission,
brokerage or finders' fee in connection with the transactions contemplated
herein.
2.18 Nominees. The nominees of WMC to serve as Amasys' directors and
officers following the Closing (the "Nominees"), whose names and signatures
appear on Schedule II hereto, represent that no event listed in Sub-paragraphs
(1) through (4) of Subparagraph (d) of Item 401 of Regulation S-B has occurred
with respect to any of the Nominees during the past five years which is material
to an evaluation of the ability or integrity of such Nominee.
2.19 Subsidiaries and Predecessor Corporations. WMC does not have any
subsidiaries and does not own, beneficially or of record, any shares or other
equity interests of any other corporation or entity.
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ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF AMASYS
As an inducement to, and to obtain the reliance of WMC and the WMC
Shareholders, Amasys represents and warrants as follows:
3.1 Organization. Amasys is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware, and has the
corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, and there is no
jurisdiction in which it is not qualified in which the character and location of
the assets owned by it or the nature of the business transacted by it requires
qualification. Included in the Amasys Schedules (as hereinafter defined) are
complete and correct copies of the Articles of Incorporation and Bylaws of
Amasys, and all amendments thereto, as in effect on the date hereof. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, violate any provision of Amasys'
Articles of Incorporation or Bylaws. Amasys has taken all action required by
law, its Articles of Incorporation, its Bylaws, or otherwise to authorize the
execution and delivery of this Agreement, and Amasys has full power, authority,
and legal right and has taken all action required by law, its Articles of
Incorporation, Bylaws, or otherwise to consummate the transactions herein
contemplated.
3.2 Capitalization. Amasys' authorized capitalization consists of
20,000,000 shares of Common Stock, of which no more than 5,200,000 shares of
Amasys Common Stock (which includes options to purchase an additional 900,000
shares of Amasys Common Stock) will be issued and outstanding at Closing; an
aggregate of 14,775,000 shares of Amasys Stock shall be issued as of immediately
following the Closing and the issuance of the Exchange Shares; and 1,000,000
shares of preferred stock, par value $.01 per share, no shares of which will be
issued and outstanding at Closing. All presently issued and outstanding shares
are legally issued, fully paid, and non-assessable and not issued in violation
of the pre-emptive or other rights of any person. The Exchange Shares will be
legally issued, fully paid and non-assessable and shall not be issued in
violation of the pre-emptive or other rights of any other person.
3.3 Financial Statements. Except as set forth in the Amasys Schedules:
(a) Amasys has no liabilities with respect to the payment of any
federal, state, county, local, or other taxes (including any
deficiencies, interest, or penalties), except for taxes accrued
but not yet due and payable, for which Amasys may be liable in
its own right, or as a transferee of the assets of, or as a
successor to, any other corporation or entity.
(b) Amasys has filed all federal, state, or local income tax returns
required to be filed by it from inception.
7
(c) The books and records, financial and otherwise, of Amasys are in
all material respects complete and correct and have been
maintained in accordance with good business and accounting
practices.
(d) No deficiency for any taxes has been proposed, asserted or
assessed against Amasys. There has been no tax audit, nor has
there been any notice to Amasys by any taxing authority regarding
any such tax audit, or, to the knowledge of Amasys, is any such
tax audit threatened with regard to any taxes or Amasys tax
returns. Amasys does not expect the assessment of any additional
taxes of Amasys for any period prior to the date hereof and has
no knowledge of any unresolved questions concerning the liability
for taxes of Amasys.
(e) Amasys has good and marketable title to its assets and, except as
set forth in the Amasys Schedules, has no material contingent
liabilities, direct or indirect, matured or unmatured.
3.4 SEC Filings. The Amasys Common Stock is registered pursuant to Section
12(g) of the Exchange Act, and, except as disclosed in the Amasys Schedules,
Amasys has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the Securities and Exchange Commission
("SEC") pursuant to the reporting requirements of the Exchange Act, including
material filed pursuant to Section 13(a) or 15(d) of the Exchange Act
(collectively, the "SEC Documents"). Amasys has delivered or made available to
WMC, through the XXXXX system or otherwise, true and complete copies of the SEC
Documents filed with the SEC. Amasys has not provided to WMC any information
which, according to applicable law, rule or regulation, should have been
disclosed publicly by Amasys but which has not been so disclosed, other than
with respect to the transactions contemplated by this Agreement. As of their
respective filing dates, the SEC Documents complied in all material respects
with the requirements of the Exchange Act or the Securities Act, as applicable,
and the rules and regulations of the SEC promulgated thereunder applicable to
such documents, and, as of their respective filing dates, none of the SEC
Documents contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of Amasys included in the SEC Documents
comply as to form in all material respects with applicable accounting
requirements under GAAP and the published rules and regulations of the SEC or
other applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with GAAP applied on a consistent
basis during the periods involved (except (i) as may be otherwise indicated in
such financial statements or the notes thereto or (ii) in the case of unaudited
interim statements, to the extent they may not include footnotes or may be
condensed or summary statements), and fairly present in all material respects
the financial position of Amasys and its subsidiaries as of the dates thereof
and the results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments) .
3.5 Information. The information concerning Amasys set forth in this
Agreement and the Amasys Schedules are and will be complete and accurate in all
material respects and does not contain any untrue statement of a material fact
8
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading as of the date
hereof and as of the Closing Date.
3.6 Common Stock Equivalents. Except as set forth in the Amasys Schedules,
there are no existing options, warrants, calls, commitments of any character or
other common stock equivalents relating to authorized and unissued stock of
Amasys.
3.7 Absence of Certain Changes or Events. Except as described herein or in
the Amasys Schedules, as of the date of this Agreement and as of the Closing
Date:
(a) There has not been (i) any material adverse change, financial or
otherwise, in the business, operations, properties, assets, or
condition of Amasys (whether or not covered by insurance)
materially and adversely affecting the business, operations,
properties, assets, or condition of Amasys;
(b) Amasys has not (i) amended its Article of Incorporation or
Bylaws; (ii) declared or made, or agreed to declare or make any
payment of dividends or distributions of any assets of any kind
whatsoever to stockholders or purchased or redeemed, or agreed to
purchase or redeem, any of its capital stock; (iii) waived any
rights of value which in the aggregate are extraordinary or
material considering the business of Amasys; (iv) made any
material change in its method of management, operation, or
accounting; (v) entered into any other material transactions;
(vi) made any accrual or arrangement for or payment of bonuses or
special compensation of any kind or any severance or termination
pay to any present or former officer or employee; (vii) increased
the rate of compensation payable or to become payable by it to
any of its officers or directors or any of its employees; or
(viii) made any increase in any profit sharing, bonus, deferred
compensation, insurance, pension, retirement, or other employee
benefit plan, payment, or arrangement, made to, for, or with its
officers, directors, or employees;
(c) Amasys has not (i) granted or agreed to grant any options,
warrants, or other rights for its stocks, bonds, or other
corporate securities calling for the issuance thereof; (ii)
borrowed or agreed to borrow any funds or incurred, or become
subject to, any material obligation or liability (absolute or
contingent) except liabilities incurred in the ordinary course of
business; (iii) paid or agreed to pay any material obligation or
liability (absolute or contingent) other than current liabilities
reflected in or shown on the most recent Amasys balance sheet and
current liabilities incurred since that date in the ordinary
course of business and professional and other fees and expenses
incurred in connection with the preparation of this Agreement and
the consummation of the transactions contemplated hereby; (iv)
sold or transferred, or agreed to sell or transfer, any of its
assets, property, or rights (except assets, property, or rights
not used or useful in its business which, in the aggregate have a
value of less than $1,000), or canceled, or agreed to cancel, any
9
debts or claims (except debts or claims which in the aggregate
are of a value of less than $1,000); (v) made or permitted any
amendment or termination of any contract, agreement, or license
to which it is a party if such amendment or termination is
material, considering the business of Amasys; or (vi) issued,
delivered, or agreed to issue or deliver any stock, bonds, or
other corporate securities including debentures (whether
authorized and unissued or held as treasury stock), except in
connection with this Agreement;
(d) At the Closing, Amasys shall have no assets, liabilities or
accounts payable of any kind or nature, actual or contingent, not
disclosed in the SEC Documents; and
(e) To the best knowledge of Amasys, it has not become subject to any
law or regulation which materially and adversely affects, or in
the future may adversely affect, the business, operations,
properties, assets, or condition of Amasys.
3.8 Title and Related Matters. Amasys has good and marketable title to all
of its properties, interest in properties, and assets, real and personal, which
are reflected in the Amasys balance sheet or acquired after that date (except
properties, interest in properties, and assets sold or otherwise disposed of
since such date in the ordinary course of business), free and clear of all
liens, pledges, charges, or encumbrances except:
(a) statutory liens or claims not yet delinquent;
(b) such imperfections of title and easements as do not and will not
materially detract from or interfere with the present or proposed
use of the properties subject thereto or affected thereby or
otherwise materially impair present business operations on such
properties; and
(c) as described in the Amasys Schedules.
3.9 Litigation and Proceedings. There are no actions, suits, or proceedings
pending or, to the knowledge of Amasys, threatened by or against or affecting
Amasys, at law or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind.
3.10 Contracts. Amasys is not a party to any material contract, agreement,
or other commitment, except as specifically disclosed in its schedules to this
Agreement.
3.11 No Conflict With Other Instruments. The execution of this Agreement
and the consummation of the transactions contemplated by this Agreement will not
result in the breach of any term or provision of, or constitute a default under,
any indenture, mortgage, deed of trust, or other material agreement or
instrument to which Amasys is a party or to which it or any of its assets or
operations are subject.
3.12 Governmental Authorizations. Amasys is not required to have any
licenses, franchises, permits, and other government authorizations, that are
10
legally required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal and
state securities or corporation laws, as hereinafter provided, no authorization,
approval, consent, or order of, or registration, declaration, or filing with,
any court or other governmental body is required in connection with the
execution and delivery by Amasys of this Agreement and the consummation by
Amasys of the transactions contemplated hereby.
3.13 Compliance With Laws and Regulations. To the best of its knowledge,
Amasys has complied with all applicable statutes and regulations of any federal,
state, or other applicable governmental entity or agency thereof, except to the
extent that noncompliance would not materially and adversely affect the
business, operations, properties, assets, or conditions of Amasys or except to
the extent that noncompliance would not result in the incurrence of any material
liability. This compliance includes, but is not limited to, to the extent such
compliance is applicable, the filing of all reports to date with the U.S.
Securities and Exchange Commission (the "SEC") and state securities authorities.
3.14 Insurance. Amasys carries sufficient casualty or liability insurance
to properly insure its operations.
3.15 Approval of Agreement. The board of directors of Amasys (the "Amasys
Board") has authorized the execution and delivery of this Agreement by Amasys
and has approved this Agreement and the transactions contemplated hereby.
3.16 Material Transactions of Affiliations. Except as disclosed herein and
in the Amasys Schedules, there exists no material contract, agreement, or
arrangement between Amasys and any person who was at the time of such contract,
agreement, or arrangement an officer, director, or person owning of record or
known by Amasys to own beneficially, 10% or more of the issued and outstanding
common stock of Amasys and which is to be performed in whole or in part after
the date hereof or was entered into not more than three years prior to the date
hereof. Neither any officer, director, nor 10% stockholder of Amasys has, or has
had during the last preceding full fiscal year, any known interest in any
material transaction with Amasys which was material to the business of Amasys.
Amasys has no commitment, whether written or oral, to lend any funds to, borrow
any money from, or enter into any other material transaction with any such
affiliated person.
3.17 Employment Matters. Amasys has no employees and uses the services of
two consultants who both serve as officers of Amasys.
3.18 Amasys Schedules. Prior to the Closing, Amasys shall have delivered to
WMC the following schedules, which are collectively referred to as the "Amasys
Schedules," which are dated the date of this Agreement, all certified by an
officer to be complete, true, and accurate:
(a) a schedule containing complete and accurate copies of the
Articles of Incorporation and By-laws, as amended, of Amasys as
in effect as of the date of this Agreement;
(b) a schedule containing a copy of the federal income tax returns of
Amasys identified in Section 3.3(b); and
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(c) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the
Amasys Schedules.
3.19 Brokers. Amasys has not entered into any contract with any person,
firm or other entity that would obligate WMC or Amasys to pay any commission,
brokerage or finders' fee in connection with the transactions contemplated
herein.
3.20 Subsidiaries. Amasys does not have any subsidiaries and does not own,
beneficially or of record, any shares or other equity interests of any other
corporation or other entity.
ARTICLE IV
SPECIAL COVENANTS
4.1 Shareholders' Actions of Amasys. Prior to the Closing, Amasys shall
cause the following actions to be taken by the written consent of the holders of
a majority of the outstanding shares of common stock of Amasys (the "Written
Consent"):
(a) the approval of this Agreement and the transactions contemplated
hereby and thereby; and
(b) the removal of each current director, excluding X.X. Xxxxxxx, of
Amasys and the election of Xxxxxxx Xxxxxxxxx, as a director of
Amasys effective at the time of the Closing; and
(c) such other actions as the directors may determine are necessary
or appropriate.
4.2 Actions of WMC Shareholders. Prior to the Closing, WMC shall cause the
following actions to be taken by the written consent of the holders of a
majority of the outstanding shares of common stock of WMC:
(a) the approval of this Agreement and the transactions contemplated
hereby and thereby; and
(b) such other actions as the directors may determine are necessary
or appropriate.
4.3 Access to Properties and Records. Amasys and WMC will each afford to
the officers and authorized representatives of the other reasonable access to
the properties, books, and records of Amasys or WMC in order that each may have
full opportunity to make such reasonable investigation as it shall desire to
make of the affairs of the other, and each will furnish the other with such
additional financial and operating data and other information as to the business
and properties of Amasys or WMC as the other shall from time to time reasonably
request.
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4.4 Delivery of Books and Records. At the Closing, Amasys shall deliver to
WMC, the originals of the corporate minute books, books of account, contracts,
records, and all other books or documents of Amasys now in the possession or
control of Amasys or its representatives and agents.
4.5 Actions Prior to Closing by both Parties.
(a) From and after the date of this Agreement until the Closing Date
and except as set forth in the Amasys or WMC Schedules or as
permitted or contemplated by this Agreement, Amasys and WMC will
each: (i) carry on its business in substantially the same manner
as it has heretofore; (ii) maintain and keep its properties in
states of good repair and condition as at present, except for
depreciation due to ordinary wear and tear and damage due to
casualty; (iii) maintain in full force and effect insurance
comparable in amount and in scope of coverage to that now
maintained by it; (iv) perform in all material respects all of
its obligation under material contracts, leases, and instruments
relating to or affecting its assets, properties, and business;
(v) use its best efforts to maintain and preserve its business
organization intact, to retain its key employees, and to maintain
its relationship with its material suppliers and customers; and
(vi) fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and state
laws and all rules, regulations, and orders imposed by federal or
state governmental authorities.
(b) From and after the date of this Agreement until the Closing Date,
neither Amasys nor WMC will: (i) make any change in their
organizational documents, charter documents or Bylaws; (ii) take
any action described in Section 2.6 in the case of WMC , or in
Section 3.7, in the case of Amasys (all except as permitted
therein or as disclosed in the applicable party's schedules);
(iii) enter into or amend any contract, agreement, or other
instrument of any of the types described in such party's
schedules, except that a party may enter into or amend any
contract, agreement, or other instrument in the ordinary course
of business involving the sale of goods or services, or (iv) make
or change any material tax election, settle or compromise any
material tax liability or file any amended tax return.
4.6 Indemnification.
(a) WMC hereby agrees to indemnify Amasys and each of the officers,
agents and directors of Amasys as of the date of execution of
this Agreement against any loss, liability, claim, damage, or
expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing, or
defending against any litigation, commenced or threatened, or any
claim whatsoever), to which it or they may become subject arising
out of or based on any inaccuracy appearing in or
misrepresentation made in Article II. The indemnification
provided for in this paragraph shall not survive the Closing and
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consummation of the transactions contemplated hereby but shall
survive the termination of this Agreement pursuant to Section
7.1(b) of this Agreement.
(b) Amasys hereby agrees to indemnify WMC and each of the officers,
agents and directors of WMC as of the date of execution of this
Agreement against any loss, liability, claim, damage, or expense
(including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim
whatsoever), to which it or they may become subject arising out
of or based on any inaccuracy appearing in or misrepresentation
made under Article III. The indemnification provided for in this
paragraph shall not survive the Closing and consummation of the
transactions contemplated hereby but shall survive the
termination of this Agreement pursuant to Section 7.1(c) of this
Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF AMASYS
The obligations of Amasys under this Agreement are subject to the
satisfaction, at or before the Closing, of the following conditions:
5.1 Accuracy of Representations; Performance. The representations and
warranties made by WMC in this Agreement were true when made and shall be true
at the Closing Date with the same force and effect as if such representations
and warranties were made at and as of the Closing Date (except for changes
therein permitted by this Agreement), and WMC shall have performed or complied
with all covenants and conditions required by this Agreement to be performed or
complied with by WMC prior to or at the Closing. Amasys may request to be
furnished with a certificate, signed by a duly authorized officer of WMC and
dated the Closing Date, to the foregoing effect.
5.2 Officer's Certificates. Amasys shall have been furnished with a
certificate dated the Closing Date and signed by a duly authorized officer of
WMC to the effect that no litigation, proceeding, investigation, or inquiry is
pending or, to the best knowledge of WMC threatened, which might result in an
action to enjoin or prevent the consummation of the transactions contemplated by
this Agreement, or, to the extent not disclosed in the WMC Schedules, by or
against WMC which might result in any material adverse change in any of the
assets, properties, business, or operations of WMC.
5.3 No Material Adverse Change. Prior to the Closing Date, there shall not
have occurred any material adverse change in the financial condition, business,
or operations of WMC, nor shall any event have occurred which, with the lapse of
time or the giving of notice, may cause or create any material adverse change in
the financial condition, business, or operations.
5.4 Other Items.
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(a) Amasys shall have received such further documents, certificates,
or instruments relating to the transactions contemplated hereby
as Amasys may reasonably request.
(b) Complete and satisfactory due diligence review of WMC by Amasys.
(c) Approval of the Transaction by the WMC Board and the WMC
Shareholders.
(d) Any necessary third-party consents shall be obtained prior to
Closing, including but not limited to consents necessary from
WMC's lenders, creditors, vendors and lessors.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF WMC
The obligations of WMC under this Agreement are subject to the
satisfaction, at or before the Closing, of the following conditions:
6.1 Accuracy of Representations; Performance. The representations and
warranties made by Amasys in this Agreement were true when made and shall be
true as of the Closing Date (except for changes therein permitted by this
Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing Date, and Amasys shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Amasys prior to or at the Closing.
WMC shall have been furnished with a certificate, signed by a duly authorized
executive officer of Amasys and dated the Closing Date, to the foregoing effect.
6.2 Officer's Certificate. WMC shall have been furnished with a certificate
dated the Closing Date and signed by a duly authorized executive officer of
Amasys to the effect that no litigation, proceeding, investigation, or inquiry
is pending or, to the best knowledge of Amasys threatened, which might result in
an action to enjoin or prevent the consummation of the transactions contemplated
by this Agreement.
6.3 No Material Adverse Change. Prior to the Closing Date, there shall not
have occurred any material adverse change in the financial condition, business,
or operations of Amasys nor shall any event have occurred which, with the lapse
of time or the giving of notice, may cause or create any material adverse change
in the financial condition, business, or operations of Amasys.
6.4 Good Standing. WMC shall have received a certificate of good standing
from the Secretary of State of the State of Delaware or other appropriate
office, dated as of a date within ten days prior to the Closing Date certifying
that Amasys is in good standing as a corporation in the State of Delaware and
has filed all tax returns required to have been filed by it to date and has paid
all taxes reported as due thereon.
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6.5 Other Items.
(a) WMC shall have received a stockholder list of Amasys containing
the name, address, and number of shares held by each Amasys
stockholder as of the date of Closing certified by an executive
officer of Amasys as being true, complete, and accurate.
(b) WMC shall have received such further documents, certificates, or
instruments relating to the transactions contemplated hereby as
WMC may reasonably request.
(c) Complete and satisfactory due diligence review of Amasys by WMC.
(d) Approval of the Transaction by the Amasys Board and the
stockholders of Amasys.
(e) There shall have been no material adverse changes in Amasys,
financial or otherwise.
(f) As of immediately prior to the Closing, Amasys shall have no
assets, no liabilities, contingent or otherwise (other than
certain liabilities which in no event shall exceed in the
aggregate $1,000), and no net worth, as determined in accordance
with generally accepted accounting principles.
(g) There shall be no Amasys Common Stock Equivalents outstanding as
of immediately prior to the Closing. For purposes of the
foregoing, "Amasys Common Stock Equivalents" shall mean any
subscriptions, warrants, options or other rights or commitments
of any character to subscribe for or purchase from Amasys, or
obligating Amasys to issue, any shares of any class of the
capital stock of Amasys or any securities convertible into or
exchangeable for such shares.
(h) The resignation of the officers and directors of Amasys effective
upon the Closing, with such vacancies filled by the nominees of
WMC.
(i) Although Amasys shall be the surviving corporation in the
Transaction from a corporate law perspective, the Transaction
shall be accounted for as a "reverse acquisition" for accounting
and financial statement purposes, wherein WMC shall be deemed the
surviving entity for such purposes.
(j) Any necessary third-party consents shall be obtained prior to
Closing, including but not limited to consents necessary from
Amasys' lenders, creditors; vendors, and lessors.
6.6 Amasys Preferred Stock Disposition. Amasys shall have redeemed from the
holders thereof, pro rata to their respective ownership interests, 55,209 shares
of Amasys Series A Preferred Stock (the "Series A") in return for payment to the
holders in the form of: (a) Amasys's entire interest in the outstanding
16
promissory note in favor of Amasys made by Comtex News Network, Inc., a Delaware
corporation ("Comtex"), in the outstanding principal amount of $857,000; and (b)
2,153,437 shares of Comtex common stock. The holders of the Series A shall have
converted the balance of the Series A, together with any and all rights to
accrued but unpaid dividends thereon, for 2,111,860 shares of Amasys Common
Stock.
6.7 Information Statement. At least twenty-one (21) days prior to the
Closing, Amasys shall have filed a Definitive Information Statement with the SEC
reporting the Written Consent, the transactions contemplated herein and hereby
and containing such information as requested to be filed therein.
ARTICLE VII
TERMINATION
7.1 Termination.
(a) This Agreement may be terminated by either the WMC Board or the
Amasys Board at any time prior to the Closing Date if: (i) there
shall be any actual or threatened action or proceeding before any
court or any governmental body which shall seek to restrain,
prohibit, or invalidate the transactions contemplated by this
Agreement and which, in the judgment of such board of directors,
made in good faith and based on the advice of its legal counsel,
makes it inadvisable to proceed with the exchange contemplated by
this Agreement; (ii) any of the transactions contemplated hereby
are disapproved by any regulatory authority whose approval is
required to consummate such transactions or in the judgment of
such board of directors, made in good faith and based on the
advice of counsel, there is substantial likelihood that any such
approval will not be obtained or will be obtained only on a
condition or conditions which would be unduly burdensome, making
it inadvisable to proceed with the exchange; (iii) there shall
have been any change after the date of the latest balance sheets
of WMC and Amasys, respectively, in the assets, properties,
business, or financial condition of WMC and Amasys, which could
have a materially adverse affect on the value of the business of
WMC and Amasys respectively, except any changes disclosed in the
WMC and Amasys Schedules, as the case may be, dated as of the
date of execution of this Agreement. In the event of termination
pursuant to this paragraph (a) of Section 7.1, no obligation,
right, or liability shall arise hereunder, and each party shall
bear all of the expenses incurred by it in connection with the
negotiation, drafting, and execution of this Agreement and the
transactions herein contemplated; (iv) the Closing Date shall not
have occurred by December 25, 2006; or (v) if Amasys shall not
have provided responses satisfactory in WMC's reasonable judgment
to WMC's request for due diligence materials.
(b) This Agreement may be terminated at any time prior to the Closing
by action of the Amasys Board if WMC shall fail to comply in any
17
material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or
warranties of WMC contained herein shall be inaccurate in any
material respect, and, in either case if such failure is
reasonably subject to cure, it remains uncured for seven days
after notice of such failure is provided to WMC. If this
Agreement is terminated pursuant to this paragraph (b) of Section
7.1, this Agreement shall be of no further force or effect, and
no obligation, right, or liability shall arise hereunder, except
that WMC shall bear its own costs as well as the costs incurred
by Amasys in connection with the negotiation, preparation, and
execution of this Agreement and qualifying the offer and sale of
securities contemplated hereby for exemption from the
registration requirements of state and federal securities laws.
(c) This Agreement may be terminated at any time prior to the Closing
by action of the WMC Board if Amasys shall fail to comply in any
material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or
warranties of Amasys contained herein shall be inaccurate in any
material respect, and, in either case if such failure is
reasonably subject to cure, it remains uncured for seven days
after notice of such failure is provided to Amasys. If this
Agreement is terminated pursuant to this paragraph (c) of Section
7.1, this Agreement shall be of no further force or effect, and
no obligation, right, or liability shall arise hereunder, except
that Amasys shall bear its own costs as well as the costs of WMC
incurred in connection with the negotiation, preparation, and
execution of this Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 Governing Law. This Agreement shall be governed by, enforced, and
construed under and in accordance with the laws of the United States of America
and, with respect to matters of state law, with the laws of Delaware.
8.2 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if personally delivered to it or sent by
registered mail or certified mail, postage prepaid, or by prepaid telegram and
any such notice or communication shall be deemed to have been given as of the
date so delivered, mailed, or telegraphed.
8.3 Attorney's Fees. In the event that any party institutes any action or
suit to enforce this Agreement or to secure relief from any default hereunder or
breach hereof, the breaching party or parties shall reimburse the non-breaching
party or parties for all costs, including reasonable attorneys' fees, incurred
in connection therewith and in enforcing or collecting any judgment rendered
therein.
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8.4 Confidentiality. Amasys, on the one hand, and WMC and the WMC
Shareholders, on the other hand, will keep confidential all information and
materials regarding the other Party designated by such Party as confidential.
The provisions of this Section 8.4 shall not apply to any information which is
or shall become part of the public domain through no fault of the Party subject
to the obligation from a third party with a right to disclose such information
free of obligation of confidentiality. Amasys and WMC agree that no public
disclosure will be made by either Party of the existence of the Transaction or
the letter of intent or any of its terms without first advising the other Party
and obtaining its prior written consent to the proposed disclosure, unless such
disclosure is required by law, regulation or stock exchange rule.
8.5 Expenses. Except as otherwise set forth herein, each party shall bear
its own costs and expenses associated with the transactions contemplated by this
Agreement. Without limiting the generality of the foregoing, all costs and
expenses incurred by WMC and Amasys after the Closing shall be borne by the
surviving entity. After the Closing, the costs and expenses of the WMC
Shareholders shall be borne by the WMC Shareholders.
8.6 Schedules; Knowledge. Each party is presumed to have full knowledge of
all information set forth in the other party's schedules delivered pursuant to
this Agreement.
8.7 Third Party Beneficiaries. This contract is solely between Amasys, WMC
and the WMC Shareholders, and, except as specifically provided, no director,
officer, stockholder, employee, agent, independent contractor, or any other
person or entity shall be deemed to be a third party beneficiary of this
Agreement.
8.8 Entire Agreement. This Agreement represents the entire agreement
between the parties relating to the transaction. There are no other courses of
dealing, understandings, agreements, representations, or warranties, written or
oral, except as set forth herein.
8.9 Survival. The representations and warranties of the respective parties
shall survive the Closing Date and the consummation of the transactions herein
contemplated.
8.10 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which taken together shall
be but a single instrument.
8.11 Amendment or Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at law,
or in equity, and may be enforced concurrently herewith, and no waiver by any
party of the performance of any obligation by the other shall be construed as a
waiver of the same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to the Closing Date, this Agreement may
be amended by a writing signed by all parties hereto, with respect to any of the
terms contained herein, and any term or condition of this Agreement may be
waived or the time for performance hereof may be extended by a writing signed by
the party or parties for whose benefit the provision is intended.
8.12 Mediation and Arbitration.All controversies, claims, disputes and
matters in question arising out of our relating to this Agreement or the breach
thereof, shall be decided by mediation and/or arbitration in accordance with
this Section 8.12. The party who seeks resolution of a controversy, claim
19
dispute or other matter in question shall notify the other party in writing of
the existence and subject matter hereof, and shall designate in such notice the
names of three prospective mediators, each of whom shall be registered with the
New York, New York office of the American Arbitration Association. The recipient
party shall select from such list one individual to act as a mediator in the
dispute set forth by the notifying party. The parties agree to meet with the
mediator in the City of New York within two weeks after the recipient party has
received notice of the dispute and agree to utilize their best efforts and all
expediency to resolve the matters in dispute. The mediation shall not continue
longer than two (2) hearing days without the written approval of both parties.
Neither party shall be bound by any recommendation of the mediator; however, any
agreement reached during mediation shall be final and conclusive.
If the dispute is not resolved by such mediation, it shall be decided by
mandatory arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, including the Optional Rules for Emergency
Measures of Protection. Either party may apply to the American Arbitration
Association for a determination of the dispute set forth in the notification
thereof by the originating party. The parties agree that the arbitration shall
take place in the City of New York, and shall be governed by the laws of the
state of Delaware. The award entered or decision made by the arbitrator(s) shall
be final and judgment may be entered upon it in accordance with applicable law
in any court having jurisdiction thereof. Expense of mediation and/or
arbitration shall be shared equally by both parties.
[Remainder of this page left intentionally blank.]
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IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement
to be executed by their respective officers, hereunto duly authorized, as of the
date first above-written.
WORLD MINERAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxxxx, President
AMASYS CORPORATION
By: /s/ X.X. Xxxxxxx
------------------------------------
X.X. Xxxxxxx, President
21
WMC SHAREHOLDERS: SIGNATURE:
Private Capital Partners, Inc. /s/ Private Capital Partners, Inc.
----------------------------------
Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxxxx
----------------------------------
Kashyyk Capital, LLC /s/ Kashyyk Capital, LLC
----------------------------------
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SCHEDULE I
Dated: September 26, 2006
The following persons are the only owners of the capital stock of WMC:
Person/Entity Shares Percentage Amasys Share Ownership
554,054 55.4% 8,185,350
Xxxxxxx Xxxxxxxxx
250,000 25.0% 3,693,750
Xxxxxx Xxxxxxxxx
141,891 14.2% 2,098,050
Xxxxxxx Xxxxxx
54,054 5.4% 797,850
Kashyyk Capital, LLC
1,000,000 100% 14,775,000
Total:
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SCHEDULE II
to
STOCK EXCHANGE AGREEMENT
--------------------------------------------------------------------------------
Name: Position(s) Signature
--------------------------------- ----------------------------------------------
--------------------------------- ----------------------------------------------
Chairman,
Xxxxxxx Xxxxxxxxx Chief Executive Officer, /s/ Xxxxxxx Xxxxxxxxx
Chief Financial Officer --------------------------
--------------------------------------------------------------------------------
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