Exhibit 10.1 Page 5
EXHIBIT 10.1
[LETTERHEAD OF FAS GROUP, INC.]
July 4, 1998
Mr. X. Xxxxxx Xxxxxxxxx, XX
President and CEO
United Sates Refining & Petrochemicals, Inc.
Chase Tower
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Re: Proposed exchange of Preferred Stock
Dear Xx. Xxxxxxxxx:
The purpose of this letter of agreement (the "Letter of Agreement") is to
confirm our respective understandings and agreements in principle as well as
certain binding agreements with respect to the proposed exchange of capital
stock (the "Shares") to be issued by your company ("US Refining") for Class A
Convertible Preferred Stock (the "Preferred Stock") issued by FAS Group, Inc., a
Delaware corporation ("Holding Company").
I. PRINCIPAL RELEVANT FACTS. The following are relevant to the proposed
sale and purchase (the "Transaction").
A. Holding Company is incorporated under the laws of the State of
Delaware and upon consummation of the Transaction (the "Closing") will have
authority to issue common stock ("Holding Company Common Stock"), and preferred
stock ("Holding Company Preferred Stock") each having a par value of $.001.
B. Holding Company presently intends to cause Holding Company Common
Stock to be publicly owned by means of a merger ("Merger") with Executive Wealth
Management Services, Inc. ("EWMS") as soon as possible. Holding Company expects
the total market value ("Market Capitalization") of its outstanding Holding
Company Common Stock to be in the range of $100,000,000, but cannot be assured
that Holding Company Common Stock will be publicly traded and, if so, at any
specific price.
C. The Shares will be duly authorized and issued US Refining; and
(i) US Refining is authorized to execute this Letter of Agreement
and this Letter of Agreement is binding upon US Refining in accordance with its
terms.
(ii) The Shares will be a newly created class of preferred stock
convertible into 2 million shares of common stock of US Refining.
(iii) The average daily closing bid price of the Shares for the 10
trading days immediately prior to the Closing will be approximately $4 million
("Closing Value").
X. XX Refining has furnished a representative of Holding Company with
full financial and regulatory compliance information with respect to the Shares
for its analysis and to formulate the terms and conditions of this Letter of
Agreement.
E. Holding Company has furnished a representative of US Refining with a
business plan and material information about the present business and future
business prospects of Holding Company for analysis by US Refining and to
formulate the terms and conditions of this Letter of Agreement.
F. US Refining and Holding Company, acting through their respective
duly authorized representatives, desire to enter into this Letter of Agreement
to express certain binding agreements as well as understandings which are
subject to being set forth in the definitive agreements to be executed by US
Refining and Holding Company at the Closing after approval by the Board of
Directors of Holding Company and US Refining respectively.
II. TIME SCHEDULE
This Letter of Agreement confirms our respective understandings and
agreements in principle to consummate the Transaction within five (5) days after
consummation of the achievement of the conditions to Closing, subject to
suitable results of due diligence examinations, required director, votes and
other requirements of applicable law. It is anticipated that, in any event, the
Closing will occur no later than 30 business days after the date of this Letter
of Agreement.
III. THE EXCHANGE
In exchange for Shares, Holding Company will issue to US Refining one share
of Class A Convertible Preferred Stock for each $10 of Closing Value with the
following principal characteristics:
Title: Class A Convertible Preferred Stock.
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Dividends: Five days after the end of each calendar quarter, in arrears,
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in an amount equal to 0.5% of the liquidation preference fully cumulative.
Liquidation Preference: The Closing Value, which is the average daily closing
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bid price of the Shares for the 10 trading days immediately prior to the
Closing.
Conversion. The Preferred Stock is convertible, in whole, but not in part,
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into 795,000 shares of Holding Company Common Stock with the customary
anti-dilution provisions.
Redemption: Any redemption of the Preferred Stock, whether voluntary or
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mandatory, shall be payable in cash in an amount equal to the Liquidation
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Preference or by delivery of the Shares, unencumbered and properly endorsed for
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transfer.
Redemption at Option of Company: At the Holding Company's option, the Preferred
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Stock is redeemable provided the daily closing bid price of Holding Company
Common Stock for the 15 consecutive trading days immediately prior to the
redemption date is equal to a Market Capitalization of more than $50 million.
Registration Rights. Unless sooner registered, Holding Company will agree
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to file a shelf registration statement covering all of the Common Stock of the
company issued or issuable in conversion of the Preferred Stock and cause the
registration statement to become effective not later than the date the Preferred
Stock is first eligible for conversion.
Ranking. The Preferred Stock will rank senior to all presently outstanding and
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future issues of any Holding Company Common Stock but junior to any future
issues of Holding Company Preferred Stock.
The Shares will consist of Preferred Stock with the following principal
characteristics:
Title: Class A Convertible Preferred Stock.
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Dividends: Five days after the end of each calendar quarter, in arrears,
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in an amount equal to 0.5% of the liquidation preference.
Liquidation Preference: The Closing Value, which the average daily closing bid
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price of the Shares for the 10 trading days immediately prior to the Closing.
Conversion. All of the Preferred Stock is convertible into shares of US
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Refining Common Stock with an aggregate market value, at the time of conversion,
of $4 million based on the average closing sale price for the prior 30 trading
days.
Redemption: Any redemption of the Shares, whether voluntary or mandatory, shall
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be payable in cash in an amount equal to the Liquidation Preference.
Redemption at Option of Company: At the option of US Refining, the Shares are
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redeemable provided the daily closing bid price of Holding Company Common Stock
for the 15 consecutive trading days immediately prior to the redemption date is
in excess of $4.00.
Registration Rights. Unless sooner registered, US Refining will agree to
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file a shelf registration statement covering all of the Common Stock of US
Refining issued or issuable in conversion of the Shares and cause the
registration statement to become effective not later than the date the Preferred
Stock is first eligible for conversion.
Ranking. The Preferred Stock will rank senior to all presently outstanding and
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future issues of any US Refining Common Stock but junior to any future issues of
Holding Company Preferred Stock.
IV. EXAMINATION OF THE ISSUER OF THE STOCK
Following the execution of this Letter of Agreement, until the Transaction
is consummated or negotiations with respect thereto are terminated, US Refining
will provide to the officers, employees, counsel, agents, investment bankers,
accountants, and other representatives of Holding Company working on the
Transaction as well as lenders, investors and prospective lenders and investors
of Holding Company with such additional financial and operating data and other
information about the issuer of the Shares with respect to the financial
condition, results of operations, business, properties, assets, liabilities, or
future prospects as they from time to time may request.
Holding Company shall insure that all confidential information which
Holding Company or any of its officers, directors, employees, counsel, agents,
investment bankers, accountants, lenders, investors or prospective lenders or
investors may now possess or may hereafter create or obtain relating to the
financial condition, results of operations, business, properties, assets,
liabilities, or future prospects of US Refining, shall not be published,
disclosed, or made assessable by any of them to any other person or entity at
any time or used by any of them, in each case without the prior written consent
of US Refining; provided, however, that the restrictions of this sentence shall
not apply (a) as may otherwise be required by law, (b) as may be necessary or
appropriate in connection with the enforcement of this Letter of Agreement, (c)
to the extent such information shall have otherwise become publicly available,
or (d) to disclosure by or on its behalf to lenders or investors or to others
whose consent may be required or desirable in connection with obtaining the
financing or consents which are required or desirable to consummate the
Transaction. Each party shall, and shall cause all of such other persons and
entities who received confidential data from it, to deliver to the other party
all tangible evidence of such confidential information to which the restrictions
of the foregoing sentence apply at such time as negotiations with respect to the
Transaction are terminated.
V. OTHER MATTERS
A. Documentation. By way of illustration and not limitation, the
parties expect that documents executed at Closing (the "Closing Documents"),
shall contain clauses and other agreements which shall be hereafter agreed upon
including:
(i) Assurances that no activities of the parties would, in the
reasonable opinion of counsel, result in rights of rescission or other claims
under the Securities Act of 1933, as amended, the Securities Exchange Act of
1934, as amended, state blue sky laws, applicable state corporate laws, and
similar laws; and similar assurances that the Transaction shall not give rise to
dissenter's rights, rights of appraisal escrow or lock-up requirements; minority
shareholder or partner derivative actions, and similar rights and remedies;
(ii) That all the Shares covered by the Transaction can and will
be conveyed free and clear of any liens, claims or encumbrances, either direct,
indirect or contingent, except as contemplated by this Letter of Agreement.
(iii) Representations and warranties by US Refining and Holding
Company as to the adequacy and accuracy of materials furnished, corporate
authority and related matters which shall survive the Closing;
(iv) Any necessary consents;
(v) Suitable officers' certificates, agreements with finders, and
similar matters; and
(vi) Opinions of counsel covering issuance of the Class A
Convertible Preferred Stock, appropriate exemptions from registration, corporate
authority and good standing, and similar corporate matters.
B. Public Statements. Neither US Refining nor Holding Company shall
release any information concerning this Letter of Agreement or the transactions
contemplated by this Letter of Agreement which is intended for or may result in
public dissemination thereof without first furnishing drafts of all documents or
proposed oral statements to the other party for comments and shall not release
any information without the written consent of the other party. Nothing
contained in this paragraph shall prohibit either party from releasing any
information to any governmental authority if required to do so by law.
C. No Solicitation. During the pendency of this Letter of Agreement,
US Refining will not, and will use his best efforts to ensure that its employees
will not, directly or indirectly, solicit or initiate discussions or
negotiations with or enter into any agreement with, any corporation,
partnership, person or other entity or group (other than Holding Company, any of
its affiliates or associates or any of their respective officers, employees or
other authorized representatives) (a "Third Party") concerning any transaction
that would result in a sale or other disposition by US Refining of all or any
part of the Shares.
D. Cooperation. The parties will cause their respective officers,
employees, counsel, agents, investment bankers, accountants, and other
representatives working on the Transaction to cooperate with each other with
respect to the Transaction until the Transaction is consummated or negotiations
with respect thereto are terminated.
E. Binding Effect. It is understood that this Letter of Agreement is
intended to be binding subject to the conditions contained herein and the
parties agree to proceed in good faith to work out the details of the
Transaction. In any event, the obligations contained in Section IV and the last
sentence of this subparagraph E of Section V shall continue to be binding in the
event negotiations with respect to the Transaction are terminated. This Letter
of Agreement may not be assigned by either of the parties hereto. Neither party
shall be responsible for any of the other's expenses in connection with the
negotiations, documents or other actions contemplated hereby.
If this letter accurately reflects our understanding, please so indicate by
signing the original and duplicate of this letter, and returning a fully
executed copy to me no later than the close of business on July 2, 1998 so that
we can promptly commence work on the formal documents relating to the
Transaction.
FAS GROUP, INC.
By:/s/Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx, Chairman and CEO
Accepted and agreed this 4th day of July, 1998.
UNITED SATES REFINING & PETROCHEMICALS, INC.
By:/s/X. Xxxxxx Xxxxxxxxx, XX
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X. Xxxxxx Xxxxxxxxx, XX, President and CEO
