STOCK EXCHANGE AGREEMENT
Exhibit 99.1
This Stock Purchase Agreement ("Agreement") is entered into this 2nd day of March, 2009 by and between Nexia Holdings, Inc., a Nevada corporation (“NXHD”), with a principal office located at 59 West 000 Xxxxx, Xxxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000,
and AmeriResource Technologies, Inc., a Delaware corporation (“ARIO”) with principal offices located at 0000 X. Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx, 00000.
WHEREAS, NXHD desires to transfer to ARIO shares of the Series C Preferred Stock of NXHD (“NXHD Shares”) valued at Five Hundred Thousand dollars ($500,000 ) based
on the conversion value of the said shares of preferred stock; and
WHEREAS, ARIO desires to transfer to NXHD shares of the preferred stock of ARIO (“ARIO Shares”) valued at Five Hundred Thousand dollars ($500,000) based on the conversion value of the ARIO Shares.
NOW, THEREFORE with the above being incorporated into and made a part hereof for the mutual consideration set out herein and, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Exchange. The parties will exchange shares as follows:
|
|
A. |
NXHD will transfer 100,000 shares of Series C Preferred Stock of NXHD to ARIO on or before March 5, 2009 (the “Closing Date”) and NXHD will deliver the NXHD shares with all the necessary paperwork to establish ownership in ARIO of the NXHD shares; and |
|
|
B. |
ARIO will transfer preferred convertible shares, to equal a value of $500,000 based on the conversion value of the ARIO Shares to NXHD on or before the Closing Date and ARIO will deliver the ARIO shares with all the necessary paperwork to establish ownership in NXHD of the ARIO shares. |
2. Termination. This Agreement may be terminated at any time prior to the Closing Date:
A. By ARIO or NXHD:
(1) If there shall be any actual or threatened action or proceeding by or before any court or any other 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 upon the advice of legal counsel, makes it inadvisable to proceed with the transactions contemplated by this Agreement; or
(2) If the Closing shall have not occurred prior to March 5, 2009, or such later date as shall have been approved by parties hereto, other than for reasons set forth herein.
B. By NXHD:
(1) If ARIO 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 ARIO contained herein shall be inaccurate in any material respect; or
C. By ARIO:
(1) If NXHD 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 NXHD contained herein shall be inaccurate in any material respect;
In the event this Agreement is terminated pursuant to this Paragraph, this Agreement shall be of no further force or effect, no obligation, right, or liability shall arise hereunder, and each party shall bear its own costs as well as the legal, accounting, printing, and other costs incurred in connection with negotiation, preparation and
execution of the Agreement and the transactions herein contemplated.
3. Representations and Warranties of ARIO. ARIO hereby represents and warrants that effective this date and the Closing Date, the following representations are true and correct:
|
|
A. |
Authority. ARIO has the full power and authority to enter this Agreement and to carry out the transactions contemplated by this Agreement. |
|
|
B. |
No Conflict With Other Instruments. The execution of this Agreement will not violate or breach any document, instrument, agreement, contract, or commitment material to the business of ARIO to which ARIO is a party and has been duly authorized by all appropriate and necessary action. |
|
|
C. |
Deliverance of Shares. As of the Closing Date, the shares to be delivered to NXHD will be restricted and constitute valid and legally issued preferred shares of ARIO, fully paid and non-assessable and equivalent in all respects to all other issued and outstanding shares of ARIO restricted preferred stock. |
- 2 -
D. No Conflict with Other Instrument. The execution of this agreement will not violate or breach any document, instrument, agreement, contract, or commitment material to ARIO.
|
|
E. |
Investment Intent. ARIO hereby states that it is obtaining the shares of NXHD for investment purposes only. |
4. Representations and Warranties of NXHD.
NXHD hereby represents and warrants that, effective this date and the Closing Date, the representations and warranties listed below are true and correct.
|
|
A. |
Corporate Authority. NXHD has the full corporate power and authority to enter this Agreement and to carry out the transactions contemplated by this Agreement. The Board of Directors of NXHD has duly authorized the execution, delivery, and performance of this Agreement. |
|
|
B. |
No Conflict With Other Instruments. The execution of this Agreement will not violate or breach any document, instrument, agreement, contract, or commitment material to the business of NXHD to which NXHD is a party and has been duly authorized by all appropriate and necessary action. |
|
|
C. |
Deliverance of Shares. As of the Closing Date, the shares to be delivered to ARIO will be restricted and constitute valid and legally issued preferred shares of NXHD, fully paid and non-assessable and equivalent in all respects to all other issued and outstanding shares of NXHD restricted preferred stock. |
|
|
D. |
No Conflict with Other Instrument. The execution of this agreement will not violate or breach any document, instrument, agreement, contract, or commitment material to NXHD. |
|
|
E. |
Investment Intent. NXHD hereby states that it is obtaining the shares of ARIO for investment purposes only. |
5. Closing. The Closing as herein referred to shall occur upon such date as the parties hereto may mutually agree upon, but is expected to be on or before March 5, 2009.
At closing NXHD will deliver shares, to equal a value of $500,000 based on a per share price equal to the conversion price of the NXHD shares to ARIO, and ARIO will deliver shares, to equal a value of $500,000 based on the conversion price of the ARIO shares to NXHD.
6. Conditions Precedent of NXHD to Effect Closing. All obligations of NXHD under this Agreement are subject to fulfillment prior to or as of the Closing Date, as follows:
- 3 -
|
|
A. |
The representations and warranties by or on behalf of ARIO contained in this Agreement or in any certificate or documents delivered to NXHD pursuant to the provisions hereof shall be true in all material respects as of the time of Closing as though such representations and warranties were made at and as of such time. |
|
|
B. |
ARIO shall have performed and complied with all covenants, agreements and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing. |
|
|
C. |
All instruments and documents delivered to NXHD pursuant to the provisions hereof shall be reasonably satisfactory to NXHD's legal counsel. |
7. Conditions Precedent of ARIO to Effect Closing. All obligations of ARIO under this Agreement are subject to fulfillment prior to or as of the date of Closing, as follows:
|
|
A. |
The representations and warranties by or on behalf of NXHD contained in this Agreement or in any certificate or documents delivered to ARIO pursuant to the provisions hereof shall be true in all material respects as of the time of Closing as though such representations and warranties were made at and as of such time. |
|
|
B. |
NXHD shall have performed and complied with all covenants, agreements and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing. |
|
|
C. |
All instruments and documents delivered to ARIO pursuant to the provisions hereof shall be reasonably satisfactory to ARIO's legal counsel. |
8. Damages and Limit of Liability. Each party shall be liable, for any material breach of the representations, warranties, and covenants contained herein which results in a failure to perform any obligation
under this Agreement, only to the extent of the expenses incurred in connection with such breach or failure to perform Agreement.
9. Nature and Survival of Representations and Warranties. All representations, warranties and covenants made by any party in this Agreement shall survive the Closing hereunder. All of the
parties hereto are executing and carrying out the provisions of this Agreement in reliance solely on the representations, warranties and covenants and agreements contained in this Agreement or at the Closing of the transactions herein provided for and not upon any investigation upon which it might have made or any representations, warranty, agreement, promise, or information, written or oral, made by the other party or any other person other than as specifically set forth herein.
- 4 -
10. Indemnification Procedures. If any claim is made by a party which would give rise to a right of indemnification under this paragraph, the party seeking indemnification (Indemnified Party) will
promptly cause notice thereof to be delivered to the party from whom indemnification is sought (Indemnifying Party). The Indemnified Party will permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting from the claims. Counsel for the Indemnifying Party which will conduct the defense must be approved by the Indemnified Party (whose approval will not be unreasonably withheld), and the Indemnified Party may participate in such defense at the expense
of the Indemnified Party. The Indemnifying Party will not in the defense of any such claim or litigation, consent to entry of any judgment or enter into any settlement without the written consent of the Indemnified Party (which consent will not be unreasonably withheld). The Indemnified Party will not, in connection with any such claim or litigation, consent to entry of any judgment or enter into any settlement without the written consent of the Indemnifying Party (which consent will not
be unreasonably withheld). The Indemnified Party will cooperate fully with the Indemnifying Party and make available to the Indemnifying Party all pertinent information under its control relating to any such claim or litigation. If the Indemnifying Party refuses or fails to conduct the defense as required in this Section, then the Indemnified Party may conduct such defense at the expense of the Indemnifying Party and the approval of the Indemnifying Party will not be required for any settlement
or consent or entry of judgment.
11. Default at Closing. Notwithstanding the provisions hereof, if either party shall fail or refuse to deliver any of the Shares, or shall fail or refuse to consummate the transaction described in
this Agreement prior to the Closing Date, such failure or refusal shall constitute a default by that party and the other party at its option and without prejudice to its rights against such defaulting party, may either (a) invoke any equitable remedies to enforce performance hereunder including, without limitation, an action or suit for specific performance, or (b) terminate all of its obligations hereunder with respect to the defaulting party.
12. Costs and Expenses. NXHD and ARIO shall bear their own costs and expenses in the proposed exchange and transfer described in this Agreement. NXHD and ARIO have been represented by their
own attorneys in this transaction, and shall pay the fees of their attorneys, except as may be expressly set forth herein to the contrary.
- 5 -
13. Notices. Any notice under this Agreement shall be deemed to have been sufficiently given if sent by registered or certified mail, postage prepaid, addressed as follows:
|
To ARIO: |
To NXHD: | |
|
Nexia Holdings, Inc. | ||
|
0000 X. Xxxxxxx Xxxx, Xxxxx 000 |
59 West 000 Xxxxx, Xxxxxx Xxxxx | |
|
Xxx Xxxxx, Xxxxxx 00000 |
Xxxx Xxxx Xxxx, Xxxx 00000 |
14. Miscellaneous.
A. Further Assurances. At any time and from time to time, after the effective date, each party will execute such additional instruments and take such additional steps as may be reasonably requested
by the other party to confirm or perfect title to any property transferred hereunder or otherwise to carry out the intent and purposes of this Agreement.
B. Waiver. Any failure on the part of any party hereto to comply with any of its obligations, agreements, or conditions hereunder may be waived in writing by the party to whom such compliance is owed.
C. Brokers. Neither party has employed any brokers or finders with regard to this Agreement not disclosed herein.
D. Headings. The section and subsection headings in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
E. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
F. Governing Law. This Agreement was negotiated and is being contracted for in the State of Utah, and shall be governed by the laws of the State of Utah, notwithstanding any conflict-of-law provision
to the contrary. Any suit, action or legal proceeding arising from or related to this Agreement shall be submitted for binding arbitration resolution to the American Arbitration Association, in Salt Lake City, Utah, pursuant to their Rules of Procedure or any other mutually agreed upon arbitrator. The parties agree to abide by decisions rendered as final and binding, and each party irrevocably and unconditionally consents to the jurisdiction of such arbitrator and waives any objection to
the laying of venue in, or the jurisdiction of, said Arbitrator.
G. Binding Effect. This Agreement shall be binding upon the parties hereto and inure to the benefit of the parties, their respective heirs, administrators, executors, successors, and assigns.
- 6 -
H. Entire Agreement. The Agreement contains the entire agreement between the parties hereto and supersedes any and all prior agreements, arrangements or understandings between the parties relating
to the subject matter hereof. No oral understandings, statements, promises or inducements contrary to the terms of this Agreement exist. No representations, warranties covenants, or conditions express or implied, other than as set forth herein, have been made by any party.
I. Severability. If any part of this Agreement is deemed to be unenforceable the balance of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.
|
Nexia Holdings, Inc., | ||
|
A Delaware Corporation |
a Nevada corporation | |
|
By: /s/ Xxxxxx Xxxxxxx |
By: /s/ Xxxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxxx |
Name: Xxxxxxx Xxxxxx | |
|
Its: President |
Its: President |
- 7 -
