STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is dated as of December 14,
1998, between
Gold Coast Resources, Inc., a Nevada corporation ("Gold"), with an address
of 0000 Xxxxx Xxxxxxxx Xxx., Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxx 00000; and
AmeriResource Technologies, Inc., a Delaware corporation
("AmeriResources"), with an address of 0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000.
WHEREAS, Gold is the owner of all of the issued and outstanding shares of
common stock of The Travel Agents Hotel Guide, Inc., a Nevada corporation (the
"Corporation");
WHEREAS, Gold represents that the Corporation has no more than $150,000 in
liabilities and that the Corporation owns the rights to a publication known as
the Travel Agents Hotel Guide with market value of no less than $3,500,000; and
WHEREAS, AmeriResources wishes to acquire all of the issued and outstanding
shares of common stock of the Corporation (the "Shares").
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto, severally and jointly, have
agreed, and do hereby agree, subject to the terms and conditions hereinafter set
forth as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
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1.01 Purchase and Sale. Subject to the terms and conditions of this
Agreement, and in reliance on the representations and warranties contained
herein, at Closing, Gold shall sell, transfer and deliver to AmeriResources,
free and clear of all liens, pledges, charges or other encumbrances all shares
of the Corporation ("the Shares"). Certificates evidencing the Shares shall be
either duly endorsed or accompanied by stock powers.
1.02 Purchase Price. In consideration of the purchase of the Shares,
AmeriResources shall issue to Gold, at Closing, a Convertible Debenture in the
face amount of $3,350,000, bearing interest at the rate of 7% per annum,
convertible into shares of AmeriResources's Common Stock in three years from the
date of closing, valued at the average bid price for the shares for the five
business days prior to demand for payment of the Debenture, any such shares
shall have their voting rights retained by the management of AmeriResources for
a period of one year after the date of issuance; shall have voting rights,
AmeriResources shall retain the right to redeem the Debenture for its face value
in cash at any time prior to its conversion into the Common Stock of
AmeriResources. Lexington Sales Corp. shall guaranty the payment of the
Debenture at the time of maturity.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF GOLD
--------------------------------------
Gold represents and warrants to AmeriResources, to the best of its
knowledge, knowing and intending that AmeriResources will rely on these
representations and warranties in entering into this Agreement, as follows:
2.01 Corporate Authority.
(a) Gold has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the Board of Directors of Gold, and no other
corporate proceedings on the part of Gold are necessary to authorize this
Agreement and the transactions contemplated hereby.
(b) The Corporation is a wholly owned subsidiary of Gold.
2.02 No Conflict or Default. Neither the execution and delivery of this
Agreement, nor compliance with the terms and provisions hereof, including
without limitation the consummation of the transactions contemplated hereby,
will violate any statute, regulation or ordinance of any governmental authority,
or conflict with or result in the breach of any term condition or provisions of
the Articles of Incorporation or By-laws of Gold, or of any agreement, deed,
contract, mortgage, indenture, writ, order decree, legal obligation or
instrument to which Gold is a party or by which it or any of its respective
assets or properties are or may be bound: or constitute a default (or an event
which, with the lapse of time or the giving of notice, or both, would constitute
a default) thereunder, or result in the creation or imposition of any lien,
charge or encumbrance, or restriction of any nature whatsoever with respect to
any properties or assets of Gold, or give to others any interest or rights,
including rights of termination, acceleration or cancellation in or with respect
to any of the properties, assets, contracts, or business of Gold.
2.03 Due Organization; Power; Qualification; Etc. of Corporation
(a) The Corporation is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Nevada and has the corporate
power to own its property and to carry on its business as now and where now
conducted; is duly qualified or licensed as a foreign corporation and is in good
standing in all jurisdictions in which the nature of its business or the
property owned, leased or operated by it makes such qualification or licensing
necessary.
(b) The Corporation has no subsidiaries.
(c) The copies of the Articles (or Certificates) of Incorporation of
the Corporation certified by the Secretary of State of domicile and of the
By-Laws (or Codes of Regulations) of Gold, certified by its corporate Secretary,
and the minute and stock record book or books of the Corporation are true and
complete and reflect all resolutions adopted and all actions authorized or
ratified by the shareholders and the directors of the Corporation.
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2.04 Capitalization. The authorized capital stock of the Corporation
consists of ______________ shares of common stock, $.001 par value per share, of
which _______________ shares are issued and outstanding as of the date hereof.
There are no options, warrants, convertible securities or rights which may
require any Company to issue additional shares of its capital stock. All the
outstanding shares of common stock of the Corporation have been duly authorized,
and are validly issued, fully paid and nonassessable. The Corporation has no
obligation of any kind to issue any additional securities, except as disclosed
in Schedule 2.03, or as provided for herein.
2.05 Financial Information; No Material Adverse Change.
(a) Gold has heretofore delivered to AmeriResources the following
financial information for the Corporation (collectively,"Financial Statements"):
All of the Financial Statements (i) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods, (ii) fairly present the financial condition, results of its
operations and changes in its financial position at and for the periods therein
specified for the entities covered thereby, (iii) are true and complete, (iv)
are consistent with the books and records of the entities covered thereby, and
(v) with respect to any unaudited financial statements, include all adjustments,
consisting only of normal recurring adjustments, required for a fair
presentation. As of the respective dates, such Financial Statements did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(b) Since June 9, 1998 there has not been any material adverse change
in the business, or financial condition or the operations of the Corporation or,
to the best knowledge of Gold any occurrence, circumstance, or combination
thereof which reasonably could be expected to result in such a material adverse
change in the future.
(c) At closing there will be no more than $150,000 in liabilities
whether absolute or contingent of the Corporation.
(d) Since June 9, 1998, the Corporation has not sold or otherwise
disposed of or encumbered any of the properties or assets reflected on the
Financial Statements, or otherwise owned or leased by it except in the ordinary
course of business, except as described in Schedule 2.05.
(e) The Corporation's liabilities or obligations, whether accrued or
unaccrued, fixed or contingent, do not exceed $150,000.
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2.06 Tax Matters.
(a) There is no pending or, to the best knowledge of the Corporation,
any threatened federal, state or local tax audit of Gold; there is no agreement
with any federal, state or local taxing authority that may affect the subsequent
tax liabilities of the Corporation.
2.07 Party to Agreements.
(a) Except as disclosed in Schedule 2.07, the Corporation is not a
party to any contract or other arrangements except those made in the ordinary
course of business or which are terminable on the giving of sixty (60) days (or
less) notice of the Corporation's intent to terminate such contract. The
Corporation is not in default in any material respect under any contract or
agreements to which it is a party or by which it or any of its assets is or may
be bound.
(b) Schedule 2.07 is a true and complete list of all contracts,
understandings, commitments, arrangements and agreements (all of which, and any
other agreements set forth on any other Schedule or list, or furnished in
writing to AmeriResources pursuant to this Agreement, are collectively referred
to in this Agreement as "contracts"), which are in full force and effect,
unperformed in whole or in part, to which The Corporation is a party, including,
but not limited to, the following:
(i) bonus, incentive, pension, profit-sharing, hospitalization,
insurance, deferred compensation, retirement, stock option or
stock purchase plans or similar plans providing employee
benefits;
(ii) factoring, loan, note, financing or similar contracts with
any lenders, or guarantees of undertakings to answer for the
debts or defaults of another, or any contracts encumbering title
to any of The Corporation's assets;
(iii) contracts for the acquisition or disposition of the
property, assets or capital stock or other securities of a
business or company;
(iv) management or consulting contracts;
(v) partnership or joint venture contracts involving a sharing of
profits;
(vi) contracts for the employment or compensation of any
employee, officer, director or agent; and
(vii) contracts not made in the ordinary course.
2.08 Litigation. Except as disclosed in Schedule 2.08, there are no
actions, suits, investigations, or proceedings pending, or, to the knowledge of
the Corporation, threatened, against or affecting or which may adversely affect
the Corporation, in any court or by or before any governmental body or agency,
including without limitation any claim, proceeding or litigation for the purpose
of challenging, enjoining or preventing the execution, delivery or consummation
of this Agreement; and the Corporation does not know of any state of facts which
would give rise to any such action, suit, investigation or proceeding. The
Corporation is not subject to any order, judgment, decree, stipulation or
consent or any agreement with any governmental body or agency which affects its
business or operation.
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2.09 Governmental Approval. The Corporation has all permits, licenses,
orders and approvals of all federal, state, local or foreign governmental or
regulatory bodies required for the Corporation to conduct its business as
presently conducted. All such permits, licenses, orders and approvals are in
full force and effect and no suspension or cancellation of any of them is
threatened, and none of such permits licenses, orders of approvals will be
affected by the consummation of the transactions contemplated by this Agreement.
2.10 Salaries and Accrued Compensation. Schedule 2.10 annexed hereto and
made a part hereof is a true and complete list, as of the date of this
Agreement, of all of the persons who are employed by the Corporation with
compensation (including bonuses) in excess of $2,500 per year, and the
Corporation does not have outstanding liability for payment of wages, vacation
pay (whether accrued or otherwise), salaries, bonuses, pensions or contributions
under any labor or employment contract, whether oral or written, or by reason of
any past practices with respect to such employees based upon or accruing with
respect to services of present or former employees of the Corporation, except as
disclosed in Schedule 2.10.
2.11 Employee Benefit Plans. Except as disclosed in Schedule 2.11, the
Corporation does not have any pension plan, profit-sharing plan or employees'
savings plan, and the Corporation is not otherwise subject to any applicable
provisions of the Employee Retirement Income Security Act of 1974 ("ERISA").
2.12 Title to Assets. The Corporation has good, valid and, except as to
leased assets, marketable title to all of its assets (real and personal,
tangible and intangible), including, but not limited to, all assets reflected or
required to be reflected in the Financial Statements and all assets purchased or
leased by them since June 9, 1998 (except for properties and assets so reflected
or required to be reflected, which have been sold or otherwise disposed of in
the ordinary course of business), subject to no liens, pledges, encumbrances,
mortgages, security interests, charges or other similar restrictions of any
nature whatsoever, except as disclosed in the Financial Statements or in
Schedules to this Agreement and which shall in no event exceed the amount of
$150,000. The personal property owned or leased by The Corporation for the
operation of, or used in, its business is in its possession and is in good
operating or working condition and repair, after taking into account routine
maintenance and repair, age of equipment and ordinary wear and tear, and is
adequate for the operation of its business as presently conducted.
2.13 Patents and Trademarks.
(a) Except as disclosed in Schedule 2.13, The Corporation does not own
or use in its operations, any patent or any applications therefor. All
trademarks, trade names, service marks or applications owned by The Corporation
or used in its operations are listed on Schedule 2.13 and, to the extent
indicated thereon, have been duly registered and filed.
(b) All copyright registrations (both U.S. and foreign), pending
copyright registration applications, all common law copyrights and other
intellectual property rights owned by The Corporation or used in its operations
are listed on Schedule 2.13 and, to the extent indicated thereon, have been duly
registered and, filed.
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(c) The Corporation has not been charged with infringement or
violation of, or otherwise been put on notice of the existence of, any adversely
held patent, trademark, trade name, service xxxx, copyright or other
intellectual property right.
2.14 Environmental Concerns. The Corporation has not engaged in any
operations which have resulted or will result in any chemicals, hazardous,
noxious or toxic wastes being deposited, spilled, leaked, disposed of, dumped or
buried at any facility, contiguous property, or any other real property, which
have, will, or may result in property damages, personal injury or clean-up
costs.
2.15 Labor Matters. The Corporation has not entered into any collective
bargaining agreements and is not in discussions with any labor group seeking to
become a bargaining unit for any of the Corporations employees.
2.16 Material Misstatements or Omissions. No representations or warranties
made by Gold in this Agreement or in any certificate, schedule or other document
furnished in connection with the transactions contemplated by this Agreement,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make the statements of fact
contained therein not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF AMERIRESOURCES
AmeriResources represents and warrants to Gold, to the best of its
knowledge, knowing and intending that Gold will rely on these representations
and warranties in entering into this Agreement, as follows:
3.01 Corporate Authority. AmeriResources has the corporate power and
authority to enter into this Agreement and to carry out its obligation
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by its Board of
Directors and, except for the approval of its stockholders, no other corporate
proceedings on the part of such Company are necessary to authorize this
Agreement and the transactions contemplated hereby.
3.02 No Conflict or Default. Neither the execution and delivery of this
Agreement, nor compliance with the terms and provisions hereof, including
without limitation the consummation of the transactions contemplated hereby,
will violate any statute, regulation or ordinance of any governmental authority,
or conflict with or result in the breach of any term, condition or provisions of
the Articles of Incorporation or By-laws of AmeriResources, or of any agreement,
deed, contract, mortgage, indenture, writ, order decree, legal obligation or
instrument to which AmeriResources is a party or by which it or any of its
respective assets or properties are or may be bound, or constitute a default (or
an event which, with the lapse of time or the giving of notice, or both, would
constitute a default) thereunder or result in the creation or imposition of any
lien, charge or encumbrance, or restriction of any nature whatsoever with
respect to any properties or assets of AmeriResources, or give to others any
interest or rights, including rights of termination, acceleration or
cancellation in or with respect to any of the properties, assets, contracts or
business of AmeriResources.
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3.03 Due Organization; Power; Qualification; Subsidiaries and Affiliates,
Etc.
(a) AmeriResources is a corporation duly organized, validly existing,
in good standing under the laws of the State of Delaware and is authorized to do
business in the states where it is presently conducting operations and has the
corporate power to own its property and to carry on its business as now
conducted. The nature of the business now conducted by AmeriResources, the
character of the property owned by it, or any other state of facts does not
require AmeriResources to be qualified to do business as a foreign corporation
in any jurisdiction.
3.04 Capitalization. The authorized capital stock of AmeriResources
consists of 500,000,000 shares of common stock, $.0001 par value per share, of
which 472,000,000 shares are issued and outstanding as of the date hereof; and
2,500,000 shares of Class A Preferred Stock are authorized, each convertible to
one share of common stock, of which 2,296,312 shares are issued and outstanding
as of the date hereof and 2,500,000 shares of Class B Preferred Stock, each
convertible to one share of common stock, of which 777,012 shares are issued and
outstanding as of the date hereof. There are no options, warrants, convertible
securities or rights which may require AmeriResources to issue additional shares
of its capital stock, except as disclosed in Schedule 3.03. All the outstanding
shares of common stock and preferred stock of AmeriResources have been duly
authorized, and are validly issued, fully paid and nonassessable. AmeriResources
has no obligation of any kind to issue any additional securities, except as
disclosed in Schedule 3.03, or as provided for herein.
3.05 Financial Information; No Material Adverse Change.
(a) AmeriResources has heretofore delivered to Gold the financial
information for itself as requested by Gold (collectively, "Financial
Statements"):
All of the Financial Statements provided to Gold (i) have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods, (ii) fairly present the financial condition, results
of its operations and changes in its financial position at and for the periods
therein specified for the entities covered thereby, (iii) are true and complete,
(iv) are consistent with the books and records of the entities covered thereby,
and (v) with respect to any unaudited financial statements, include all
adjustments, consisting only of normal recurring adjustments, required for a
fair presentation. As of the respective dates, such Financial Statements did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
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(b) Since September 30, 1998 there has not been any material adverse
change in the business, or financial condition or the operations of the
AmeriResources or, to the best knowledge of AmeriResources, any occurrence,
circumstance, or combination thereof which reasonably could be expected to
result in such a material adverse change in the future.
(c) At September 30, 1998, there were no liabilities, absolute or
contingent of AmeriResources that were not shown or reserved against on the
balance sheets included in the Financial Statements, except obligations under
the contracts shown on or as otherwise disclosed in Schedule 3.05.
(d) Since September 30, 1998, AmeriResources has not sold or otherwise
disposed of or encumbered any of the properties or assets reflected on the
Financial Statements, or otherwise owned or leased by it except in the ordinary
course of business, except as described in Schedule 3.05.
(e) AmeriResources has no liabilities or obligations, whether accrued
or unaccrued, fixed or contingent, which have not been reflected in the
Financial Statements or described on Schedules to this Agreement, except
liabilities incurred and obligations entered into in the ordinary course of
business since September 30, 1998, and is not in default with respect to any
such liability or obligation.
3.06 Party to Agreements.
(a) Except as disclosed in its SEC filings, AmeriResources is not a
party to any contract or other arrangement except those made in the ordinary
course of business.
3.07 Litigation. Other than as disclosed in its Financial Statements or in
a Schedule 3.08, there are no actions suits, investigations, or proceedings
pending, or, to the knowledge of AmeriResources , threatened, against or
affecting or which may affect AmeriResources, the performance of the terms and
conditions hereof, or the consummation of the transactions contemplated hereby,
in any court or by or before any governmental body or agency, including without
limitation any claim, proceeding or litigation for the purpose of challenging,
enjoining or preventing the execution, delivery or consummation of this
agreement; and except as otherwise disclosed herein does not know of any state
of facts which would give rise to any such action, suit investigation or
proceeding.
3.08 Governmental Approval. AmeriResources has all permits, licenses,
orders and approvals of all federal state, local or foreign governmental or
regulatory bodies required for AmeriResources to conduct its business as
presently conducted. All such permits, licenses, orders and approvals are in
full force and effect and no suspension or cancellation of any of them is
threatened, and none of such permits licenses, orders of approvals will be
affected by the consummation of the transactions contemplated by this Agreement.
3.09 Salaries and Accrued Compensation. Schedule 2.10 annexed hereto and
made a part hereof is a true and complete list, as of the date of this
Agreement, of all of the persons who are employed by the Corporation with
compensation (including bonuses) in excess of $25,000 per year, and the
Corporation does not have outstanding liability for payment of wages, vacation
pay (whether accrued or otherwise), salaries, bonuses, pensions or contributions
under any labor or employment contract, whether oral or written, or by reason of
any past practices with respect to such employees based upon or accruing with
respect to services of present or former employees of the Corporation, except as
disclosed in SEC filings of AmeriResources.
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3.10 Employee Benefit Plans. AmeriResources does not have any pension plan,
profit-sharing plan or employees' savings plan, and AmeriResources is not
otherwise subject to any applicable provisions of the Employee Retirement Income
Security Act of 1974 ("ERISA").
3.11 Title to Assets. AmeriResources has good, valid and, except as to
leased assets, marketable title to all of its assets (real and personal,
tangible and intangible), including, but not limited to, all assets reflected or
required to be reflected in the Financial Statements and all assets purchased or
leased by them since September 30, 1998 (except for properties and assets so
reflected or required to be reflected, which have been sold or otherwise
disposed of in the ordinary course of business), subject to no liens, pledges,
encumbrances, mortgages, security interests, charges or other similar
restrictions of any nature whatsoever, except as disclosed in the Financial
Statements or in Schedules to this Agreement. The personal property owned or
leased by AmeriResources for the operation of, or used in, its business is in
its possession and is in good operating or working condition and repair, after
taking into account routine maintenance and repair, age of equipment and
ordinary wear and tear, and is adequate for the operation of its business as
presently conducted.
3.12 Patents and Trademarks.
(a) AmeriResources does not own or use in its operations, any patent
or any applications therefor. All trademarks, trade names, service marks or
applications owned by AmeriResources or used in its operations are listed on
Schedule 3.13 and, to the extent indicated thereon, have been duly registered
and filed.
(b) All copyright registrations (both U.S. and foreign), pending
copyright registration applications, all common law copyrights and other
intellectual property rights owned by AmeriResources or used in its operations
are listed on Schedule 3.13 and, to the extent indicated thereon, have been duly
registered and, filed.
(c) AmeriResources has not been charged with infringement or violation
of, or otherwise been put on notice of the existence of, any adversely held
patent, trademark, trade name, service xxxx, copyright or other intellectual
property right.
3.13 Environmental Concerns. AmeriResources has not engaged in any
operations which have resulted or will result in any chemicals, hazardous,
noxious or toxic wastes being deposited, spilled, leaked, disposed of, dumped or
buried at any facility, contiguous property, or any other real property, which
have, will, or may result in property damages, personal injury or clean-up
costs.
3.14 Labor Matters. AmeriResources has not entered into any collective
bargaining agreements and is not in discussions with any labor group seeking to
become a bargaining unit for any of the Corporations employees.
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3.15 Material Misstatements or Omissions. No representations or warranties
made by AmeriResources in this Agreement or in any certificate, schedule or
other document furnished in connection with the transactions contemplated by
this Agreement, contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact necessary to make the
statements of fact contained therein not misleading.
3.16 Securities Filings. AmeriResources will have on the closing date and
thereafter, made all filings required to be made by it with the Securities and
Exchange Commission and any state securities authorities, and will have done so
in a timely manner.
ARTICLE IV
COVENANTS
4.01 Covenants of AmeriResources. AmeriResources agrees that prior to the
closing date:
(a) No dividend shall be declared or paid by other distribution
(whether in cash, stock, property or any combination thereof) or payment
declared or made in respect to AmeriResources common stock or preferred stock,
nor shall AmeriResources purchase, acquire or redeem or split, combine or
reclassify any shares of its capital stock from execution hereof until closing.
(b) Except as herein provided, no change shall be made in the number
of shares of authorized or issued AmeriResources common stock; nor shall any
option, warrant, call, right, commitment or agreement of any character be
granted or made by AmeriResources relating to its authorized or issued
AmeriResources common or preferred stock; nor shall AmeriResources issue, grant
or sell any securities or obligations convertible into or exchangeable for
shares of AmeriResources common or preferred stock from execution hereof until
closing.
4.02 Covenants of Gold. Gold agrees that prior to the closing date:
(a) Except as herein provided, no change shall be made in the number
of shares of authorized or issued common stock of the Corporation; nor shall any
option, warrant, call, right, commitment or agreement (other than this
Agreement) of any character be granted or made relating to the authorized or
issued stock of the Corporation, nor shall there be issued, granted or sold any
securities or obligation convertible into or exchangeable for shares of common
stock.
(b) The Corporation will not (i) incur any indebtedness for borrowed
money; (ii) assume, guarantee, endorse, or otherwise become liable or
responsible (whether directly contingently or otherwise) for the obligations of
any other individual, firm or corporation; or (iii) make any loans, advances of
capital contributions to or investments in, any other individual, firm or
corporation.
(c) The Corporation will not alter or change any employment or other
contract with any of its management personnel or make, adopt, alter, revise, or
amend any pension, bonus, profit-sharing or other employee benefit plan, or
grant any salary increase or bonus to any person or owe any accrued salary or
other compensation under any agreement or plan without the prior written consent
of AmeriResources.
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(d) The Corporation will not take, agree to take, or knowingly permit
to be taken any action, or do, or knowingly permit to be done anything in the
conduct of its business, or otherwise, which would be contrary to or in breach
of any of the terms or provisions of this Agreement, or which would cause any of
the representations contained herein to be or become untrue in any material
respect at the Closing Date.
4.03 Mutual Covenants. Gold and AmeriResources further agree and covenant
as follows:
(a) Corporate Action. AmeriResources and Gold will take all actions
necessary in accordance with applicable law and each company's Articles of
Incorporation and By-Laws to authorize and consummate the transactions
contemplated herein.
(b) Conduct of Business. Prior to closing, unless the parties shall
otherwise agree in writing, the Corporation and AmeriResources shall not operate
their businesses otherwise than in the ordinary course.
(c) Access. Prior to the closing, AmeriResources shall afford to the
officers, attorneys, accountants, and other authorized representatives of Gold
free and full access to the premises, books and records of AmeriResources in
order that Gold may make such investigation as it may desire of the affairs of
AmeriResources. Prior to the closing, Gold shall afford to the officers,
attorneys, accountants, and other authorized representatives of AmeriResources
free and full access to the premises, books and records of the Corporation so
that AmeriResources may make such investigations as it may desire of the affairs
of the Corporation.
ARTICLE V
CONDITIONS
5.01 Conditions to the Obligations of Gold. The obligations of Gold to
consummate the sale contemplated by this Agreement are subject to the
satisfaction, at or before the closing, of each of the following conditions:
(a) No action shall have been threatened, taken by or be pending
before, and no statute, rule, regulation or order shall have been promulgated,
enacted, entered, enforced or deemed applicable to the transaction by any
federal, state or foreign government or governmental authority or by any court,
domestic or foreign, including the entry of a preliminary or permanent
injunction, which would (i) make the sale illegal, (ii) require the divestiture
by Gold of any shares of Gold or the Corporation or of a material portion of the
business of Gold, (iii) impose material limits on the ability of Gold to
effectively control the businesses of Gold, (iv) otherwise materially adversely
affect Gold or (v) if the sale is consummated, subject any officer, director, or
employee of Gold to criminal penalties or to civil liabilities not adequately
covered by insurance or enforceable indemnification maintained by Gold.
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(b) AmeriResources shall have complied in all material respects with
its agreements and covenants herein, and all representations and warranties of
AmeriResources herein shall be true and correct in all material respects at the
time of closing as if made at that time, except to the extent they expressly
relate to an earlier date, and Gold shall have received a certificate to that
effect to the best of the knowledge of AmeriResources, signed by the President
of AmeriResources.
(c) The officers and directors of the Corporation shall each have
executed releases for any claims for compensation or other payment for services
rendered as of the closing date.
5.02 Conditions to the Obligations of AmeriResources. The obligations of
AmeriResources to consummate the purchase contemplated by this Agreement are
subject to the satisfaction, at or before the closing, of each of the following
conditions:
(a) No action shall have been threatened, taken by or be pending
before, and no statute, rule, regulation or order shall have been promulgated,
enacted, entered, enforced or deemed applicable to the purchase by any federal,
state of foreign government or governmental authority or by any court, domestic
or foreign, including the entry of a preliminary or permanent injunction, which
would (i) make the purchase illegal, (ii) require the divestiture by
AmeriResources of the shares of AmeriResources or of a material portion of the
business of AmeriResources, (iii) impose material limits on the ability of
AmeriResources to effectively control the business of AmeriResources, (iv)
otherwise materially adversely affect AmeriResources or (v) if the purchase is
consummated, subject any officer, director, or employee of AmeriResources to
criminal penalties or to civil liabilities not adequately covered by insurance
of enforceable indemnification maintained by AmeriResources.
(b) Gold shall have complied in all material respects with its
agreements and covenants herein, and all representations and warranties of Gold
as to the Corporation shall be true and correct in all material respect at the
time of closing as if made at the time, except to the extent they expressly
relate to an earlier date, and AmeriResources shall have received a certificate
to that effect to the best of the knowledge of Gold, signed by the President of
Gold.
(c) AmeriResources shall have received from the accountants for the
Corporation, an opinion, in form and substance satisfactory to AmeriResources,
that there has been no material or adverse change in the financial condition of
the Corporation as of the date of closing, or reflected in the Financial
Statements.
ARTICLE VI
INTENTIONALLY LEFT BLANK
ARTICLE VII
INDEMNIFICATION AND WAIVER OF CLAIMS
7.01 Survival of Representations and Warranties. Notwithstanding the
closing of the transactions contemplated by this Agreement or any investigation
made by or on behalf of Gold or AmeriResources, the representations and
warranties of Gold and AmeriResources contained in this Agreement or in any
certificate, schedule, chart, list, letter, compilation or other document
delivered pursuant hereto, shall survive the Closing for a period of one (1)
year; provided, however, that the representations and warranties contained in
Sections 2.05 and 3.05 with respect to tax matters shall be deemed to survive
for so long as any applicable statute of limitations with respect to tax claims
shall not have expired, shall have been suspended or shall have been waived or
extended, and for thirty (30) days thereafter; provided further, however, that
as to any breach of or misstatement in any such representation or warranty as to
which the non-breaching party has given notice to the breaching party on or
prior to the expiration of the applicable period as to tax or non-tax matters,
as above set forth, the same shall continue to survive beyond said period, but
only as to the matters contained in such notice.
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7.02 Indemnification. Gold and AmeriResources each agree to save, defend
and indemnify the other against and hold it harmless from any and all
liabilities, of every kind, nature and description, fixed or contingent
(including, without limitation, counsel fees and expenses in connection with any
action, claim or proceeding relating to such liabilities) arising out of any
misrepresentation made by such indemnifying party or any transaction or event
commencing or occurring on or prior to Closing, which is not fully disclosed or
provided for in the Financial Statements, this Agreement or the exhibits hereto.
7.03 Defense of Claims. An indemnified party shall notify the indemnifying
party with reasonable promptness of any claim asserted against it in respect of
which the indemnifying party may be liable under this Agreement, which
notification shall be accompanied by a written statement setting forth the basis
of such claim and the manner of calculation thereof. The indemnifying party
shall have the right to defend any such claim at its own expense and with
counsel of its choice; provided, however, that such counsel shall have been
approved by the indemnified party prior to engagement; which approval shall not
be unreasonably withheld or delayed; and provided further, that the indemnified
party may participate in such defense, if it so chooses, with its own counsel
and at its own expense.
7.04 Rights Without Prejudice. The rights of Gold and AmeriResources under
this Article VII are without prejudice to any other rights or remedies that
either may have by reason of this Agreement or as otherwise provided by law.
ARTICLE VIII
CLOSING
8.01 Time and Location. The Closing provided for herein shall take place at
such time and place as may be mutually agreed to by the parties hereto. Such
date is referred to in this Agreement as the "Closing".
8.02 Items to be Delivered by Gold. At the Closing, Gold will deliver or
cause to be delivered to Company:
(a) Certificates representing the Shares or stock powers in accordance
with Section 1.01 hereof, accompanied by all instruments and documents as in the
reasonable opinion of AmeriResources's counsel, shall be necessary to effect the
transfer of and to vest title in and to the Shares in Company, free and clear of
all manner of liens, pledges, encumbrances, charges and claims thereon;
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(b) The certificate required by Section 5.02(b);
(c) Such other certified resolutions, documents and certificates as
are required to be delivered by Gold pursuant to the provisions of this
Agreement.
8.03 Items to be Delivered by AmeriResources. At the Closing,
AmeriResources will deliver or cause to be delivered to Gold:
(a) The Purchase Price in accordance with Section 1.02, being a
Convertible Debenture in the amount of $3,350,000, with a three year maturity
and redeemable in cash or in common stock of AmeriResources valued at the bid
price on the date of conversion.
(b) Such other certified resolutions, documents and certificates as
are required to be delivered by AmeriResources pursuant to the provisions of
this Agreement;
ARTICLE IX
TERMINATION
9.01 Termination. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and the transactions provided
for herein abandoned at any time prior to the Closing:
(a) By mutual consent of parties.
(b) By Gold if any of the conditions set forth in Section 5.01 have
not been fulfilled on or prior to the Closing, or shall become incapable of
fulfillment at any time, and shall not have been waived;
(c) By AmeriResources if any of the conditions set forth in Section
5.02 have not been fulfilled on or prior to the Closing Date, or shall have
become incapable of fulfillment at any time, and shall not have been waived;
(d) By Gold or AmeriResources if any material legal action or
proceedings shall have been instituted or threatened seeking to restrain,
prohibit, invalidate or otherwise adversely affect the consummation of the
transactions contemplated by this Agreement.
(e) If items to be delivered at Closing are not delivered.
In the event that the Agreement is terminated as described above, this
Agreement shall be void and of no force and effect, without any liability or
obligation on the part of any of the parties hereto.
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ARTICLE X
NO WAIVER
10.01 The failure of any party at any time or times to require performance
of any provision hereto shall in no manner effect the right of such party at a
later time to enforce the same. No waiver by any party of the breach of any
term, covenant, representation or warranty contained in this Agreement shall
release or affect any liability resulting from such breach, and no waiver of any
nature, whether by conduct or otherwise, in any one or more instances, shall be
deemed to be or construed as a further or continuing waiver of any such
condition or of any breach of any other term, covenant, representation or
warranty of this Agreement.
ARTICLE XI
MISCELLANEOUS
11.01 Waiver of Conditions. Any condition to the performance of either
party which legally may be waived on or prior to the Closing may be waived at
any time by the party entitled to the benefit thereof by action taken or
authorized by an instrument in writing executed by the relevant party.
11.02 Expenses. Whether or not any sale is consummated, all out-of-pocket
costs and expenses incurred in connection with the transaction and this
agreement will be paid by the party incurring such expenses.
11.03 Entire Agreement. This Agreement contains the entire agreement
between Gold and AmeriResources with respect to the sale of the Shares and any
other transactions contemplated hereby.
11.04 Tax Structure of Sale. The sale contemplated by this Agreement is
intended to qualify as a tax-free reorganization, as contemplated by Section
368(A) of the Internal Revenue Code of 1986, as amended. To the extent that the
parties' legal, tax and accounting advisors indicate that all or a portion of
the transactions contemplated hereby adversely affect the tax-free nature of
such transactions, the parties agree to negotiate, in good faith, modifications
to this Agreement so as to enable the parties to consummate the transactions
contemplated hereby without adverse tax consequences to the parties or their
shareholders.
11.05 Schedules. The parties agree that the Schedules contemplated by this
Agreement shall be delivered by each party to the other not more than 10 days
following the date hereof. The information set forth on the Schedules shall be
subject to the parties due diligence review and to the provisions of Section
5.03.
11.07 Brokers. No broker or finder is entitled to any brokerage or finder's
fee or other commission or fee from any Company or based upon arrangements made
by or on behalf of any Company with respect to the transactions contemplated by
this Agreement.
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11.08 Arbitration. Any controversy arising out of, connected to, or
relating to any matters herein or the transactions contemplated by this
Agreement, or the breach thereof, including, but not limited to any claims of
violations of Federal and/or State Securities Acts, Banking Statutes, Consumer
Protection Statutes, Federal and/or State anti-Racketeering (e.g. RICO) claims
as well as any common law claims and any State Law claims of fraud, negligence,
negligent misrepresentations, and/or conversion shall be settled by arbitration
in the State of Florida, under the rules of the American Arbitration
Association; and judgment on the arbitrator's award may be entered in any court
having jurisdiction thereof in accordance with the provisions of the law of the
State of Nevada. In the event of such a dispute, each party to the conflict
shall select an arbitrator, both of whom shall select a third arbitrator which
shall constitute the three person arbitration board. The decision of a majority
of the board of arbitrators shall be binding upon the parties.
11.09 Other Actions. Each of the parties hereto agrees to execute and
deliver such other documents, certificates, agreements and other writings and to
take such other actions as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
11.10 Waiver and Amendment. Any provision of this Agreement may be waived
at any time by the party which is or whose stockholders are, entitled to the
benefits thereof and this Agreement may be amended or supplemented at any time.
No such waiver, amendment or supplement shall be effective unless in writing and
signed by the party or parties necessary thereto.
11.11 Applicable Law. This agreement shall be governed by and construed in
accordance with the laws of the State of Kansas.
11.12 Descriptive Headings. The descriptive headings are for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
11.13 Notices. All notes or other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by registered or certified mail postage prepaid, to the party's address set
forth above with copies to:
If to Gold, to: SONNENBLICK PARKER & SELVERS, P.C.
Attention: Xxxx X. Xxxxxxx, Esq.
0000 Xxxxx 0 Xxxxx, Xxxxx 0000
Xxxxxxxx XX 00000
If to AmeriResources, to: Xxxxxx Xxxxxxx
0000 Xxxx Xx.
Xxxxxx, Xxxxxx 00000
11.14 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one agreement.
11.15 Signatures. Each of the undersigned, have been duly authorized to
execute this Agreement on behalf of Gold and AmeriResources, respectively.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto as of the date first
hereinabove written.
ATTEST: Gold Coast Resources, Inc.
______________________ By:_/s/ Xxxxxxx Baker__________
XXXXXXX XXXXX, President
AmeriResources Technologies, Inc.
______________________ By:_/s/ Xxxxxx Janovec_________
Xxxxxx Xxxxxxx, Chief Executive Officer
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