STOCK EXCHANGE AGREEMENT
Exhibit
10.05
This
Stock Purchase Agreement ("Agreement") is entered into this 2nd day of
February, 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 Ameriresources 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 February 27, 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.
|
|
|
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 February 27,
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:
|
|
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.
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.
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:
|
|
Ameriresources
Technologies, Inc.
|
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.
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.
|
Ameriresources
Technologies, Inc.
|
Nexia
Holdings, Inc.,
|
|
By:
/s/ Xxxxxx
Xxxxxxx
|
By:
/s/ Xxxxxxx
Xxxxxx
|
|
|
Name:
Xxxxxx
Xxxxxxx
|
Name: Xxxxxxx
Xxxxxx
|
|
