EXHIBIT 2.1
STOCK EXCHANGE AGREEMENT
THIS AGREEMENT is made this 8th day of March, 1999, by and between
MAS Acquisition VI Corp., an Indiana corporation ("MAS") and CoalCorp Pty. Ltd,
an Australia corporation ("Coal").
WITNESSETH:
WHEREAS, the total authorized capital stock of Coal consists of
26,431,759 shares of common stock, which can be divided into Class A Common
Stock, par value $1.00 per share, of which 23,000,000 shares are issued and
outstanding and Class B Common Stock, par value $1.00 per share, of which
3,431,759 shares are issued and outstanding (Class A and Class B Common Stock
hereinafter collectively referred to as the "Coal Shares"); and
WHEREAS, MAS desires to acquire all of the issued and outstanding
capital stock of Coal, or 26,431,759 shares of Common Stock ("Coal Shares") for
1,468,431 shares of common stock of MAS ("MAS Shares") by exchanging one
MAS Share for each 18 Coal Shares; and
WHEREAS, in reliance on and subject to the terms and conditions,
representations, warranties, covenants and agreements herein contained, Coal
desires to sell the Coal Shares to MAS, and MAS desires to purchase the
Coal Shares in a stock for stock exchange.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good and value consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. PURCHASE AND SALE.
Section 1.1 AGREEMENT TO PURCHASE AND EXCHANGE. In reliance on and
subject to the terms, conditions, representations, warranties, covenants and
agreements herein contained, Coal shall assign, transfer and convey unto MAS,
and MAS shall purchase all of the Coal Shares in a tax free reorganization.
Section 1.2 PURCHASE PRICE. The aggregate purchase price for the Coal
Shares (the "Purchase Price") shall be 1,468,431 MAS Shares.
Section 1.3 CLOSING. The closing of the transaction contemplated in
this Agreement (the "Closing") shall take place at the offices of MAS
Acquisition VI Corp., 0000 X. Xxxxxxxx Xx., Xxxxxxxxxx, Xxxxxxx 00000 on 3-8,
1999, or at such other date, time or place as shall be mutually acceptable to
the parties (the "Closing Date").
Section 1.4 TRANSACTIONS AND DOCUMENTS AT AND AFTER CLOSING.
(a) At the Closing, Coal shall deliver to MAS certificates
representing 26,431,759 shares of Coal, duly endorsed for transfer.
(b) At the Closing, MAS shall deliver to Coal the 1,468,431
MAS Shares common stock representing the Purchase Price for the Coal Shares,
calculated as set forth hereinabove, and bearing an appropriate legend
restricting transfer except as permitted under Rule 144 of the Securities Act of
1933, as amended.
(c) From time to time and at any time, at MAS's request,
whether on or after the Closing Date, and without further consideration, Coal
shall, at its own expense except as otherwise provided in this Agreement,
execute and deliver such further documents and instruments of conveyance
and transfer and shall take such further actions as may be necessary or
convenient, in the reasonable opinion of MAS, to transfer and convey to
MAS, all of its right, title and interest in and to the Coal Shares, free and
clear of any lien or adverse claim.
(d) From time to time and at any time, at Coal's request, whether on or
after the Closing Date, and without further consideration, MAS shall, at its
own expense except as otherwise provided in this Agreement, execute and deliver
such further documents and instruments of conveyance and transfer and shall take
such further actions as may be necessary or convenient in the reasonable opinion
of Coal, to transfer and convey to Coal, all of its right, title and interest in
and to the MAS Shares free and clear of any lien or adverse claim.
2. ADDITIONAL AGREEMENTS.
Section 2.1 MAS'S ACCESS AND INSPECTION. Coal has allowed and shall
allow MAS and its authorized representatives full access during normal
business hours from and after the date hereof and prior to the Closing Date to
all of Coal's properties, books, contracts, commitments and records for the
purpose of making such investigation as MAS may desire, and Coal shall
furnish MAS such information concerning Coal's affairs as MAS may
request. Coal has caused and shall cause Coal's personnel to assist MAS in
making such investigation and shall cause the counsel, accountants, engineers
and other non-employee representatives of Coal to be reasonably available to
MAS for such purposes.
Section 2.2 Coal'S ACCESS AND INSPECTION. MAS shall allow Coal and its
authorized representatives access during normal business hours from and after
the date hereof and prior to the Closing Date to such of MAS's properties,
books, contracts, commitments and records as Coal may reasonably request for the
purpose of determining the financial condition of MAS. MAS shall cause
MAS's personnel to assist Coal in making such investigation and shall cause
the counsel, accountants, engineers and other non-employee representatives of
MAS to be reasonably available to Coal for such purposes.
Section 2.3 COOPERATION. The parties shall cooperate fully with each other
and with their representatives, counsel and accountants in connection with any
steps required to be taken as part of their respective obligations under this
Agreement, and will use their best efforts to consummate the transactions
contemplated hereby and fulfill their obligations hereunder.
Section 2.4 EXPENSES. All of the expenses incurred by MAS in
connection with the authorization, preparation, execution and performance of
this Agreement by MAS, including without limitation all fees and expenses of
agents, representatives, counsel and accountants for MAS, shall be paid by
MAS. All expenses incurred by Coal in connection with the authorization,
preparation, execution and performance of this Agreement, including without
limitation all fees and expenses of agents, representatives, counsel and
accountants, shall be paid by Coal.
Section 2.5 BROKERS. Each party hereto jointly and severally represents
and warrants that no broker or finder has acted on its behalf in connection with
this Agreement or the transactions contemplated herein and each party shall
indemnify the other and save it harmless from any claim or demand for commission
or other compensation by any broker, finder or similar agent claiming to have
been employed by or on behalf of such party.
3. REPRESENTATIONS AND WARRANTIES OF Coal.
Coal represents, covenants and warrants to MAS as follows:
Section 3.1 CORPORATE EXISTENCE/STANDING/AUTHORITY. Coal is a corporation
duly organized, validly existing and in good standing under the laws of
Australia and has the corporate power and authority to own, operate and lease
its respective properties, to carry on its business as now being conducted,
and to enter into this Agreement and to carry out the transactions contemplated
hereby. Coal is duly qualified to do business and is in good standing in each
jurisdiction where the failure to qualify would have a material adverse affect
on it. Coal has delivered to MAS or its counsel true and correct copies of
the articles of incorporation and by-laws of Coal, together with any amendments
thereto.
Section 3.2 SHARES OF STOCK. All issued and outstanding shares of capital
stock of Coal have been duly authorized and validly issued and are fully paid
and nonassessable. There is no subscription, option, warrant, call, right,
contract, commitment, understanding or arrangement relating to the issuance,
sale or transfer by Coal of any shares of its capital stock, including any
right of conversion or exchange under any outstanding security or other
instrument.
Section 3.3 AUTHORITY. Coal has the full right and authority to enter into
and fully perform this Agreement and all other agreements and documents to be
delivered to MAS in connection herewith. All actions required to be taken by
Coal to authorize the execution, delivery and performance of this Agreement and
all other agreements and documents to be delivered in connection herewith have
been or will by the Closing Date be properly taken. This Agreement constitutes
the valid and binding obligation of Coal. Neither the execution and delivery of
this Agreement and all other ageements and documents executed in connection
herewith nor the consummation of the transactions contemplated hereby nor the
performance of this Agreement and all other agreements and documents executed in
connection herewith will (1) conflict with or result in a breach of any
provision of the certificate of incorporation or by-laws of Coal, (2) violate,
conflict with, or result in a breach of any provision of, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination or in a right of
termination or cancellation of, or accelerate the performance or the payment of
money required by, or result in the creation of any lien, security interest,
charge or encumbrance upon any of Coal's properties under any of the terms,
conditions or provisions of any loan agreement, note, bond, mortgage, indenture,
lease, agreement or other instrument or commitment to which Coal is a party, or
by which Coal or its properties may be bound or affected or (3) violate any
order, writ, injunction, decree, judgment, or ruling of any court or
governmental authority specifically applicable to Coal or any of its properties.
Section 3.4 NO VIOLATION. Except as set forth on Schedule 3.4, to the best
knowledge of Coal, Coal has complied with all rules, regulations, codes and laws
affecting its business and operations and is not in default under, or in
violation of, any provision of any federal, state or local rule, regulation,
code or law nor has Coal been given notice of any such default or violation.
Section 3.5 LICENSES AND RIGHTS. Coal possesses all franchises, easements,
licenses, permits and other authorizations from governmental or regulatory
authorities and from all other persons or entities that are necessary to permit
it to engage in its business as presently conducted in and at all locations and
places where it is presently operating. Such franchises, licenses, permits and
other authorizations are set forth on Schedule 3.5.
Section 3.6 CONSENTS. Except as set forth on Schedule 3.6 hereto, no
approval or consent of any person, firm or other entity or body is required to
be obtained by Coal for the authorization of this Agreement or the consummation
by Coal of the transactions contemplated hereby.
Section 3.7 NO DEFAULTS. Except as set forth on Schedule 3.7, to the best
knowledge of Coal, no default (or event which with the passage of time or the
giving of notice or both would become a default) exists or is alleged to exist
with respect to the performance of any obligation of Coal under the terms of any
indenture, license, mortgage, deed of trust, lease, note, guaranty or other
contract or instrument, including, but not limited to, any contract set forth on
Schedule 3.17, to which Coal is a party or to which its assets are subject, or
by which it is otherwise bound, and no such default or event exists or is
alleged to exist with respect to the performance of any obligation of any other
party thereto.
Section 3.8 FINANCIAL STATEMENTS. MAS has been or will be furnished
with the audited financial statements (the "Financial Statements"). The
Financial Statements were prepared in accordance with generally accepted
accounting principles and present fairly and accurately the information set
forth therein.
Section 3.9 ABSENCE OF CERTAIN CHANGES. Except as set forth on Schedule
3.9 hereto, since December 31, 1998, Coal has actively conducted its business
in the ordinary and regular course. Since that date, there has not been any
material adverse change in the condition (financial or otherwise), results of
operations, assets, liabilities, properties, business or prospects of Coal nor
is any event threatened which would cause such an adverse change, nor has there
occurred any event or governmental regulation or order restricting the business
of Coal.
Section 3.10 FACILITIES AND EQUIPMENT. The personal property owned or
leased by Coal at its facility for the operation of, or used in, its business
is in its possession or under its control and is adequate for the operation of
such business as presently conducted.
Section 3.11 TITLE TO ASSETS. Except as set forth on Schedule 3.11 or in
the Financial Statements, Coal has good, valid and marketable title to all of
its real property and leasehold estates and good and valid title to all of its
other assets (tangible and intangible), including, but not limited to, all
leasehold improvements and equipment and all other properties and assets
reflected or required to be reflected in the Financial Statements and all
properties and assets purchased or leased by it since the dates of such
Financial Statements (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 set forth on Schedule 3.11, Coal enjoys peaceful and
quiet possession of its properties and assets pursuant to or by all of the
deeds, bills of sale, leases, licenses and other agreements under which it is
operating its business.
Section 3.12 ABSENCE OF UNDISCLOSED LIABILITIES. Coal does not have any
material liabilities or obligations, either accrued or unaccrued, fixed or
contingent, which have not been reflected in the Financial Statements or set
forth on Schedule 3.12 hereof.
Section 3.13 LITIGATION. Schedule 3.13 hereof sets forth a list of all
administrative or judicial proceedings to which Coal is a party. Except as set
forth on Schedule 3.13, there is no action, suit, claim, demand, arbitration or
other proceeding, administrative or judicial, pending or, to the best knowledge
of Coal, threatened against or relating to Coal which, if adversely determined
or resolved, would materially and adversely affect the financial condition,
results of operations, business or prospects of Coal.
Section 3.14 PATENTS AND TRADEMARKS.
(a) Except as set forth on Schedule 3.14(a), Coal does not own, or
operate under, any patent, trademark or service xxxx or any applications
therefor. All trade names (including those whose use is limited to one or more
states of the United States) owned or used by Coal are listed on Schedule 3.14
hereof and, to the extent indicated therein, have been duly registered with
the states of the United States or the corresponding offices of other
countries. Except as set forth on Schedule 3.14, Coal is the sole and exclusive
owner of, or has the sole and exclusive power with respect to, or has the sole
and exclusive right to use, the trade names specified on Schedule 3.14.
(b) Except as set forth on Schedule 3.14(b) hereof, Coal has not ever
been charged with infringement or violation of any adversely held trademark,
trade name or copyright.
(c) Except as set forth on Schedules 3.14(a) and 3.14(b), there no
claims or demands of any other person, firm or corporation pertaining to the
trade names, copyright registrations or pending copyright registration
applications, as the case may be, listed on such schedules, and no proceedings
have been instituted which challenge the right of Coal in respect thereof.
Section 3.15 EMPLOYEE BENEFITS.
(a) Schedule 3.15 hereof contains a list of (i) each pension,
profit sharing, bonus, deferred compensation, or other retirement plan or
arrangement for the benefit of any employee or group of employees of Coal or any
independent contractors or group of independent contractor of Coal, (ii) each
medical, health, disability, insurance or other plan or arrangement of Coal, and
(iii) each employee stock option plan or other plan providing for the purchase
of shares of capital stock of Coal. All of such plans and arrangements of Coal
are referred to herein as the "employee benefit plans".
(b) The amounts reflected in the Financial Statements as liabilities or
contingent liabilities with respect to employee benefit plans have been
calculated In accordance and compliance with applicable law, including
accounting principles relating thereto.
(c) All of the employee benefit plans maintained by Coal (and each
funding medium which may be attendant thereto) are in compliance with applicable
law and all reporting and disclosure requirements under applicable laws and
regulations, and have been administered and operated in accordance with their
respective provisions and applicable law. There are no actions, suits or claims
(other than routine claims for benefits) pending with respect to the employee
benefit plans.
(d) Coal has filed, published and disseminated all reports, documents,
statements and communications which are required to be filed, published or
disseminated under applicable law and the rules and regulations promulgated
thereunder relating to, and have timely made all modifications and amendments
to, the employee benefit plans.
Section 3,16 TAXES AND TAX RETURNS. Coal has duly filed all income,
franchises and other tax returns and reports required to be filed by it and has
duly paid or made provisions for the payment of all taxes (including any
interest or penalties) which are due and payable pursuant to such returns. Coal
has withheld proper and accurate amounts from their employees' compensation in
subtantial compliance with all withholding and similar provisions of applicable
law. There are and will hereafter be no tax deficiencies (including penalties
and interest) of any kind assessed against Coal with respect to any period
ending on or before the Closing Date.
Section 3.17 CONTRACTS. Coal has heretofore furnished to MAS or its
counsel true and complete copies of each document, and a written description of
each oral contact, set forth on Schedule 3.17 hereof. Schedule 3.17 is a true
and complete list of all contracts, understandings, commitments, arrangements
and agreements of the following types, including all amendments thereto to which
Coal is a party:
(a) Contracts relating to equipment purchases, or series of similar
equipment purchases from the same supplier, involving an expenditure of, or if
in a series, expenditures in the aggregate of, more than twenty-five thousand
dollars ($25,000);
(b) Bonus, incentive, pension, profit-sharing, hospitalization,
insurance, deferred compensation, retirement, stock option or stock purchase
plans or similar plans providing employee benefits;
(c) 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 properties, involving in each
case, or if in a series involving the same lender, guarantor or property, as the
case may be, In the aggregate, at least twenty-five thousand dollars ($25,000);
(d) contracts for the acquisition or disposition of a business or
substantially all of the property, assets or capital stock or other securities
of a business or company under which there are continuing or unperformed
obligations on the part of any of the parties hereto, which contracts in each
case involve at least twenty-five thousand dollars ($25,000);
(e) Conditional sales contracts, leases of personal property or
contracts for the purchase or sale of real or personal property, involving in
each case at least twenty-five thousand dollars ($25,000);
(f) Management or consulting contracts, involving in each case, or
with respect to any individual in the aggregate, at least twenty-five thousand
dollars ($25,000);
(g) Contracts for the furnishing of services or products to or by Coal,
involving an expenditure in each case of at least twenty-five thousand dollars
($25,000);
(h) Royalty or licensing contracts or contracts requiring simliar
payments to unrelated parties individually, or with respect to any unrelated
party in the aggregate, involving or which reasonably may in the future involve
an amount in excess of twenty-five thousand dollars ($25,000) annually;
(i) All employment agreements between Coal and any of its employees;
and
(j) All agreements, contracts and commitments not listed on any other
schedule hereto which individually involve the payment of twenty-five thousand
dollars ($25,000) or more.
Except as set forth on Schedule 3.17, all such contracts,
understandings, commitments, arrangements and agreements are in full force and
effect.
Section 3.18 COLLECTIVE BARGAINING AGREEMENTS. Schedule 3.18 hereof is
a list of all collective bargaining agreements with any labor organization to
which Coal is a party. The relations of Coal with its employees are good and
there are no impending labor difficulties.
Section 3.19 INSURANCE. Coal is insured by insurers unaffiliated with
Coal or Coal with respect to its properties and the conduct of its business in
such amounts and against such risks as are generally and prudently maintained
for comparable businesses and consistent with its past practice
Section 3.20 REAL PROPERTY.
(a) Schedule 3.20 hereof sets forth a true and complete list of (i) all
real property owned by Coal and (ii) all real property leases to which Coal is a
party. Coal has heretofore furnished to MAS or its counsel true and complete
copies of each written contract and a written description of each oral contract
relating to the list set forth on Schedule 3.20.
(b) With respect to the leases described on Schedule 3.20, except as
setforth on Schedule 3.20;
(i) "All such leases are in writing and duly executed, and, where
required, witnessed, acknowledged and recorded to make them valid and binding
and in full force and effect for the full term thereof, and none have been
modified;
(ii) The rental set forth in each such lease is the actual rental
being paid, and there are no separate agreements or understandings with respect
to the same not set forth in Schedule 3.20;
(iii) The lessee under each such lease has the full right to
exercise any renewal option contained therein and upon due exercise will be
entitled to enjoy the use of the premises for the full term of such renewal
option;
(iv) Upon performance by the lessee of the terms of each such
lease, the lessee has the full right to enjoy the use of the premises demised
thereunder for the full term thereof; and
(v) Except as set forth on Schedule 3.20, all security deposits
required by such leases have been made and no forfeiture with respect thereto
claimed in whole or in part, by any of the lessors.
Section 3.21 MATERIAL MISSTATEMENTS OR OMISSIONS. No representations or
warranties made by Coal under this Agreement or in any certificate, schedule or
other document furnished to be furnished to MAS or its counsel pursuant
hereto, or 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.
4. REPRESENTATIONS AND WARRANTIES OF MAS.
MAS represents, covenants and warrants to Coal as follows:
Section 4.1 CORPORATE EXISTENCE/STANDING/AUTHORITY. MAS is a
corporation duly organized, validly existing and in good standing under the laws
of Indiana and has the corporate power and authority to own, operate and lease
its respective properties, to carry on its business as now being conducted, and
to enter into this Agreement and to carry out the transactions contemplated
hereby. MAS is duly qualified to do business and is in good standing in each
jurisdiction were the failure to qualify would have a material adverse affect on
it. MAS has delivered to Coal or its counsel true and correct copies of the
articles of incorporation and by-laws of MAS, together with any amendments
thereto.
Section 4.2 SHARES OF STOCK. MAS has authorized 80,000,000 shares of
common stock of which there are presently issued and outstanding 1,106,670
shares of common stock and 7,209,995 shares of common stock to be issued.
None of the 2,000,000 shares of preferred stock is issued and outstanding.
All issued and outstanding shares of capital stock of MAS have been duly
authorized and validly issued and are fully paid and nonassessable. There
is no subscription, option, warrant, call, right, contract commitment,
understanding or arrangement relating to the issuance, sale or transfer by
MAS of any shares of its capital stock, including any right of conversion
or exchange under any outstanding security or other instrument.
Section 4.3 - AUTHORITY. MAS has the full right and authority to enter
into and fully perform this Agreement and all other agreements and documents to
be delivered to Coal in connection herewith. All actions required to be taken
by MAS to authorize the execution, delivery and performance of this Agreement
and all other agreements and documents to be delivered in connection herewith
have been or will by the Closing Date be properly taken. This Agreement
constitutes the valid and binding obligation of MAS. Neither the execution
and delivery of this Agreement and all other agreements and documents executed
in connection herewith nor the consummation of the transactions contemplated
hereby nor the performance of this Agreement and all other agreements and
documents executed in connection herewith will (1) conflict with or result in a
breach of any provision of the certificate of incorporation or by-laws of
MAS, (2) violate, conflict with, or result in a breach of any provision of,
or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination or in a
right of termination or cancellation of, or accelerate the performance or the
payment of money required by, or result in the creation of any lien, security
interest, charge or encumbrance upon any of MAS's properties under any of
the terms, conditions or provisions of any loan agreement, note, bond, mortgage,
indenture, lease, agreement or other instrument or commitment to which MAS
is a party, or by which MAS or its properties may be bound or affected or
(3) violate any order,' writ, injunction, decree, judgment, or ruling of any
court or governmental authority specifically applicable to MAS or any of its
properties.
Section 4.4 NO VIOLATION. Except as set forth on Schedule 4.4, to the best
knowledge of MAS, MAS has complied with all rules, regulations, codes
and laws affecting its business and operations and is not in default under, or
in violation of, any provision of any federal state or local rule, regulation,
code or law nor has MAS been given notice of any such default or violation.
Section 4.5 LICENSES AND RIGHTS. MAS possesses all franchises,
easements, licenses, permits and other authorizations from governmental or
regulatory authorities and from all other persons or entities that are necessary
to permit it to engage in its business as presently conducted in and at all
locations and places where it is presently operating. Such franchises, licenses,
permits and other authorizations are set forth on Schedule 4.5.
Section 4.6 CONSENTS. Except as set forth on Schedule 4.8 hereto, no
approval or consent of any person, firm or other entity or body is required to
be obtained by MAS for the authorization of this Agreement or the
consummation by MAS of the transactions contemplated hereby.
Section 4.7 NO DEFAULTS. Except as set forth on Schedule 4.7, to the best
knowledge of MAS, no default (or event which with the passage of time or the
giving of notice or both would become a default) exists or is alleged to exist
with respect to the performance of any obligation of MAS under the terms of
any indenture, license, mortgage, deed of trust, lease, note, guaranty or other
contract or instrument, including, but not limited to, any contract set forth on
Schedule 4.17, to which MAS is a party or to which its assets are subject,
or by which it is otherwise bound, and no such default or event exists or is
alleged to exist with respect to the performance of any obligation of any other
party thereto.
Section 4.8 FINANCIAL STATEMENTS. Coal has been or will be furnished with
audited financial statements of MAS for the year ended December 31, 1998,
(the "Financial Statements"). The Financial Statements were prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior periods and as of their date of issuance were or will be
true, correct and complete all material respects and present fairly and
accurately the information set forth therein.
Section 4.9 ABSENCE OF CERTAIN CHANGES. Except as set forth on Schedule
4.9 hereto, since December 31. 1998, MAS has actively conducted its business
in the ordinary and regular course. Since that date, there has not been any
material adverse change in the condition (financial or otherwise), results of
operations, assets, liabilities, properties, business or prospects of MAS nor
is any event threatened which would cause such an adverse change, nor has there
occurred any event or governmental regulation or order restricting the business
of MAS.
Section 4.10 FACILITIES AND EQUIPMENT. MAS does not own any personal
property owned or leased any facility for its operation.
Section 4.11 TITLE TO ASSETS. MAS does not own any tangible property.
Section 4.12 ABSENCE OF UNDISCLOSED LIABILITIES. MAS does not have
any material liabilities or obligations, either accrued or unaccrued, fixed or
contingent, which have not been reflected in the Financial Statements or set
forth on Schedule 4.12 hereof, or which exceed in the aggregate $5,000.
Section 4.13 LITIGATION. Schedule 4.13 hereof sets forth a list of all
administrative or judicial proceedings to which MAS is a party. Except as
set forth on Schedule 4.13, there is no action, suit, claim, demand, arbitration
or other proceeding, administrative or judicial, pending or, to the best
knowledge of MAS, threatened against or relating to MAS which, if adversely
determined or resolved, would materially and adversely affect the financial
condition, results of operations, business or prospects of MAS.
Section 4.14 PATENTS AND TRADEMARKS.
(a) Except as set forth on Schedule 4.14(a), MAS does not own, or
operate under, any patent, trademark or service xxxx or any applications
therefor. All trade names (including those whose use is limited to one or more
states of the United States) owned or used by MAS are listed on Schedule
4.14 hereof and, to the extent indicated therein, have been duly registered with
the states of the United States or the corresponding offices of other countries.
Except as set forth on Schedule 4.14, MAS is the sole and exclusive owner
of, or has the sole and exclusive power with respect to, or has the sole and
exclusive right to use, the trade names specified on Schedule 4.14.
(b) Except as set forth on Schedule 4.14(b) hereof, MAS has not
ever been charged with infringement or violation of any adversely held
trademark, trade name or copyright.
(c) Except as set forth on Schedules 4.14(a) and 4.14(b), there are no
claims or demands of any other person, firm or corporation pertaining to the
trade names, copyright registrations or pending copyright registration
applications, as the case may be, listed on such schedules, and no proceedings
have been instituted which challenge the right of MAS in respect thereof.
Section 4.15 EMPLOYEE BENEFITS.
(a) Schedule 4.15 hereof contains a list of (i) each pension, profit
sharing, bonus, deferred compensation, or other retirement plan or arrangement
for the benefit of any employee or group of employees of MAS or any
independent contractors or group of independent contractor of MAS, (ii) each
medical, health, disability, insurance or other plan or arrangement of MAS,
and (iii) each employee stock option plan or other plan providing for the
purchase of shares of capital stock of MAS. All of such plans and
arrangements of MAS are referred to herein as the "employee benefit plans".
(b) The amounts reflected in the Financial Statements as liabilities or
contingent liabilities with respect to employee benefit plans have been
calculated in accordance and compliance with applicable law, including
accounting principles relating thereto.
(c) All of the employee benefit plans maintained by MAS (and each
funding medium which may be attendant thereto) are in compliance with applicable
law and all reporting and disclosure requirements under applicable laws and
regulations, and have been administered and operated in accordance with their
respective provisions and applicable law. There are no actions, suits or claims
(other than routine claims for benefits) pending with respect to the employee
benefit plans.
(d) MAS has filed, published and disseminated all reports,
documents, statements and communications which are required to be filed,
published or disseminated under applicable law and the rules and regulations
promulgated thereunder relating to, and have timely made all modifications and
amendments to, the employee benefit plans.
Section 4.16 TAXES AND TAX RETURNS. MAS has duly filed all income,
franchise and other tax returns and reports required to be filed by it and has
duly paid or made provision for the payment of all taxes (including any interest
or penalties) which are due and payable pursuant to such returns. MAS has
withheld proper and accurate amounts from their employees' compensation in
substantial compliance with all withholding and similar provisions of applicable
law. There are and will hereafter be no tax deficiencies (including penalties
and interest) of any kind assessed against MAS with respect to any period
ending on or before the Closing Date.
Section 4.17 CONTRACTS. MAS has heretofore furnished to Coal or its
counsel true and complete copies of each document, and a written description of
each oral contact, set forth on Schedule 4.17 hereof. Schedule 4.17 is a true
and complete list of all contracts, understandings, commitments, arrangements
and agreements of the following types, including all amendments thereto to which
MAS is a party:
(a) Contracts relating to equipment purchases, or series of similar
equipment purchases from the same supplier, involving an expenditure of, or if
in a series, expenditures in the aggregate of, more than $25,000;
(b) Bonus, incentive, pension, profit-sharing, hospitalization,
insurance, deferred compensation, retirement, stock option or stock purchase
plans or similar plans providing employee benefits;
(c) 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 properties, involving in each
case, or if in a series involving the same lender, guarantor or property, as the
case may be, in the aggregate, at least $25,000;
(d) Contracts for the acquisition or disposition of a business or
substantially all of the property, assets or capital stock or other securities
of a business or company under which there are continuing or unperformed
obligations on the part of any of the parties hereto, which contracts in each
case involve at least $25,000;
(e) Conditional sales contracts, leases of personal property or
contracts for the purchase or sale of real or personal property, involving in
each case at least twenty-five thousand dollars ($25,000);
(f) Management or consulting contracts, involving in each case, or with
respect to any individual in the aggregate, at least twenty-five thousand
dollars ($25,000);
(g) Contracts for the furnishing of services or products to or by
MAS, involving an expenditure in each case of at least twenty-five thousand
dollars ($25,000);
(h) Royalty or licensing contracts or contracts requiring similar
payments to unrelated parties individually, or with respect to any unrelated
party in the aggregate, involving or which reasonably may in the future involve
an amount in excess of twenty-five thousand dollars ($25,000) annually;
(i) All employment agreements between MAS and any of its employees;
and
(j) All agreements, contracts and commitments not listed on any other
schedule hereto which individually involve the payment of twenty-five thousand
dollars ($25,000) or more.
Except as set forth on Schedule 4.17, all such contracts,
understandings, commitments, arrangements and agreements are in full force and
effect.
Section 4.18 COLLECTIVE BARGAINING AGREEMENTS Schedule 4.18 hereof is a
list of all collective bargaining agreements with any labor organization to
which MAS is a party. The relations of MAS with its employees are good
and there are no impending labor difficulties.
Section 4.19 INSURANCE. MAS is insured by insurers unaffiliated with
MAS or MAS with respect to its properties and the conduct of its
business in such amounts and against such risks as are generally and prudently
maintained for comparable businesses and consistent with its past practice.
Section 4.20 REAL PROPERTY.
(a) MAS does not own nor lease any real property.
Section 4.20 MATERIAL MISSTATEMENTS OR OMISSIONS. No
representations or warranties made by MAS under this Agreement or in any
certificate, schedule or other document furnished or to be furnished to Coal or
its counsel pursuant hereto, or 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.
5. COVENANTS AND TRANSACTIONS PRIOR TO CLOSING
Section 5.1 CONDUCT AND TRANSACTIONS OF Coal PRIOR TO THE CLOSING. Between
the date of this Agreement and the Closing, the executive officers and board of
directors of Coal shall retain full control of the management and business
thereof. In order to assure protection and preservation of Coal's business as
well as Coal's performance of its obligations under and related to this
Agreement, Coal agrees that from the date of this Agreement up to and including
the Closing;
(a) Coal shall give MAS, its counsel, accountants, appraisers
and other representatives or experts retained by MAS full access on
reasonable notice to all the premises and books, records and personnel of Coal
during normal business hours and cause Coal to furnish to MAS such financial
and operating data and other information with respect to the business and
properties of Coal as MAS may from time to time reasonably request. In the
event of termination of this Agreement for any reason, MAS will return all
documents, work papers and other materials obtained from Coal or Coal and
will not further disclose to third parties any confidential information
obtained by it pursuant hereto.
(b) Coal shall use all reasonable efforts to (i) preserve intact
the present business organization and personnel of Coal, (ii) preserve the
present goodwill and advantageous relationships of Coal with all persons having
business dealings with Coal, and (iii) preserve and maintain in force all
licenses, certificates, leases, contracts, permits, registrations, franchises,
confidential trade names and copyrights, and applications for any of same,
bonds and other similar rights of Coal. Except as otherwise provided in this
Agreement, Coal shall refrain from entering into any new employment or
consulting agreements with any of its present officers, management personnel or
consultants, or any other employment or consulting agreement with any other
person, not terminable by Coal on less than thirty (30) days' notice. Coal shall
maintain in force all property, casualty, crime, life, directors, officers and
other forms of insurance and bonds which it presently carries and, except with
the written consent of MAS, no cancellation or assignment of existing
insurance coverage will be effected by Coal.
(c) MAS shall operate its business only in the usual, regular
and ordinary course and manner, and, except with the written consent of MAS,
shall refrain from (i) selling or agreeing to sell any capital stock, or (ii)
except in the ordinary course of business, encumbering or mortgaging any
property or assets or terminating or modifying any lease or incurring any
obligation (contingent or otherwise).
(d) Coal or Coal shall not discuss or negotiate with any third
party a possible sale of all or any part of the capital shares or assets of
Coal, nor provide any information to any third party with respect thereto,
other than such Information which is provided in the ordinary course of the
business operation of Coal to third parties, provided Coal has no reason to
believe that such information may be utilized to evaluate a possible sale of
the capital shares or assets of Coal.
(e) Coal will exert its best efforts to fulfill in a timely
manner all objectives and conditions to permit consummation of the
transactions as contemplated by this Agreement and execute and deliver to MAS
any and all documents necessary, in the reasonable opinion of its counsel, to
consummate the transactions contemplated by this Agreement.
Section 5.2 CONDUCT BY MAS PRIOR TO CLOSING. Between the date
of this Agreement and the Closing Date, MAS shall use its best efforts to
fulfill in a timely manner all objectives and conditions to permit consummation
of the transactions as contemplated by this Agreement and execute and deliver to
Coal any and all documents necessary, in the reasonable opinion of its counsel,
to consummate the transactions contemplated by this Agreement.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF MAS
The obligations of MAS under this Agreement are, at its option,
subject to satisfaction of the following conditions at or prior to the Closing:
Section 6.1 REPRESENTATIONS OF Coal. The representations and
warranties of Coal set forth in this Agreement shall be true and complete in all
material respects on and as of the Closing to the same extent and with the same
force and effect as if made on such date, except as expressly provided to the
contrary in this Agreement.
Section 6.2 CONSENTS. All necessary approvals or consents shall have been
obtained from any and all federal departments and agencies and from all other
commissions, boards, agencies and from any other person, firm or entity whose
approval or consent is necessary to the consummation of the transactions
contemplated by this Agreement.
Section 6.3 PERFORMANCE BY Coal. Coal shall have duly performed all
obligations, covenants and agreements undertaken by them herein and complied
with all terms and conditions applicable to them hereunder to be performed and
complied with prior to the Closing.
Section 6.4 DOCUMENTS TO BE DELIVERED TO MAS. MAS shall have
received:
(a) A certificate, dated as of the Closing and executed by Coal
certifying as to the fulfillment of the matters contained in Sections 6.1, 6.2
and 6.3;
(b) True and complete copy of the certificates of incorporation
of Coal, certified by the Secretary of State of Australia or similar office of
competent jurisdiction, and of the by-laws of Coal, together with all
amendments thereto, certified by the Secretary of Coal;
(c) Good standing certificate for Coal, certified by the
Secretary of State of Australia or similar office of competent jurisdiction;
(d) Certificates representing 26,431,759 of the Coal Shares, duly
endorsed for transfer, and Coal shall have received the MAS Shares, duly
endorsed for transfer. All such shares shall be subject to Rule 144 legend.
Section 6.5 SUITS. No suit, action or other proceeding shall be threatened
or pending before any court or governmental agency in which it will be or it is
sought to restrain or prohibit or to obtain damages or other relief in
connection with this Agreement or the consummation of the transactions
contemplated by this Agreement or which is likely to materially and adversely
affect the financial condition, results of operations, business or prospects of
Coal.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF Coal
The obligations of Coal under this Agreement are, at its option, subject
to satisfaction of the following conditions at or prior to the initial Closing:
Section 7.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of MAS set forth in this Agreement shall be true and complete in
all material respects on and as of the Closing to the same extent and with the
same force and effect as if made on such date, except as affected by the
transactions contemplated by this Agreement.
Section 7.2 CONSENTS. All necessary approvals or consents shall have been
obtained from any and all federal departments and agencies and from all other
commissions, boards, agencies and from any other person, firm or entity whose
approval or consent is necessary to the consummation of the transactions
contemplated by this Agreement.
Section 7.3 PERFORMANCE BY MAS. MAS shall have duly performed all
obligations, covenants and agreements undertaken by it herein and complied with
all the terms and conditions applicable to them hereunder to be performed or
complied with prior to the Closing.
Section 7.4 DOCUMENTS TO BE DELIVERED TO Coal. Coal shall have received:
(a) certificate dated as of the Closing, and executed by an
officer of MAS, certifying as to the fulfillment of the matters contained in
Sections 7.1, 7.2 and 7.3;
(b) Certificates representing the MAS Shares, duly endorsed
for transfer, and MAS shall have received 1,468,431 of the Coal Shares, duly
endorsed for transfer.
(c) True and complete copies of the certificate of incorporation
of MAS and of the by-laws of MAS, together with all amendments thereto,
certified by the Secretary of MAS;
(d) True and correct copies of Minutes of the Board of Directors
authorizing the officers and the Company to consummate the transaction.
Section 7.5 SUITS. No suit, action or other proceeding shall be threatened
or pending before any court or governmental agency in which it will be or it is
sought to restrain or prohibit or to obtain damages or other relief in
connection with this Agreement or the consummation of the transactions
contemplated by this Agreement.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION
Section 8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Notwithstanding
the closing of the transactions contemplated by this Agreement, or any
investigation made by or on behalf of Coal or MAS, the representations
and warranties of Coal or MAS 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 as to any breach of, or misstatement in, any such
representation or warranty as to which one party has given notice to the other
on or prior to the expiration of such one (1) year period, the same shall
continue to survive beyond said period, but only as to the matters contained in
such notice.
Section 8.2 Coal's INDEMNIFICATION. Coal covenants and agrees to indemnify
and save harmless MAS and its directors, officers, employees and agents from
any and all costs, expenses, losses, damages and liabilities incurred or
suffered directly or directly by any of them (including reasonable legal fees
and costs) proximately resulting from or attributable to the breach of, or
misstatement in, any one or more of the representations or warranties of Coal
made in or pursuant to this Agreement.
Section 8.3 MAS'S INDEMNIFICATION. MAS covenants and agrees to
indemnify and save harmless Coal and its directors, officers, employees and
agents from any and all costs, expenses, losses, damages and liabilities
incurred or suffered by any of them (including reasonable legal fees and costs)
proximately resulting from or attributable to the breach of, or misstatement in,
any one or more of the representations or warranties of MAS made in or
pursuant to this Agreement.
Section 8.4 DEFENSE AGAINST ASSERTED CLAIMS. If any claim or assertion of
liability is made or asserted by a third party against a party indemnified
pursuant to this Article 8 ("Indemnified Party") based on any liability or
absence of right which, if established, would constitute a matter for which the
Indemnified Party would be entitled to indemnification by another party hereto
("the Indemnifying Party") the Indemnified Party shall with reasonable
promptness give to the Indemnifying Party written notice of the claim or
asserting of liability and request the Indemnifying Party to defend the same.
Failure to so notify the Indemnifying Party shall not relieve the Indemnifying
Party of any liability which the Indemnifying Party might have to the
Indemnified Party unless such failure materially prejudices the Indemnifying
Party's position. The Indemnifying Party shall have the right to defend against
such liability or assertion, in which event the Indemnifying Party shall give
written notice to the Indemnified Party of the acceptance of defense of such
claim and the identity of counsel selected by the Indemnifying Party with
respect to such matters. The Indemnified Party shall be entitled to participate
with the Indemnifying Party in such defense and also shall be entitled at its
option to employ separate counsel for such defense at the expense of the
Indemnified Party. In the event the Indemnifying Party does not accept the
defense of the matter as provided above or in the event that the Indemnifying
Party or its counsel fails to use reasonable care in maintaining such defense,
the Indemnified Party shall have the full right at its option to defend against
the liability or assertion and to employ counsel for such defense at the expense
of the Indemnifying Party. All parties hereto will cooperate with each other in
the defense of any such action and the relevant records of each shall be
available to the others with respect to such defense.
9. POST-CLOSING MATTERS
9.1 PERFORMANCE PONDS. Coal shall maintain in force at its expense, until
their maturity or expiration in accordance with their terms, all performance
bonds issued by Coal prior to the Closing Date.
10. ASSIGNMENT, THIRD PARTIES, BINDING EFFECT
The rights under this Agreement shall not be assignable nor the duties
delegable by any party without the written consent of all parties hereto having
been obtained thereto. Nothing contained in this Agreement, express or implied,
is intended to confer upon any person or entity, other than the parties hereto,
and their successors in interest, any rights or remedies under or by reason of
this Agreement unless so stated expressly to the Contrary. All covenants,
agreements, representations and warranties of the parties contained herein shall
be binding upon and inure to the benefit of MAS and Coal and their respective
successors and permitted assigns.
11. ABANDONMENT
In the event the transactions contemplated hereby are terminated or
abandoned by mutual agreement of the parties hereto, there shall be no
liability on the part of any of the parties by reason of such termination or
abandonment.
12. NOTICES
All notices, requests, demands and other communications hereunder shall be
writing and shall, be deemed to have been duly given when personally delivered
or deposited in the United States mail, certified or registered, return
receipt requested, postage prepaid, addressed to the parties at the following
addresses (or at such other address as shall be given in writing by any party to
the other) as follows:
To MAS: Xx. Xxxxx Xxxx
MAS Acquisition VI Corp.
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Coal: Xx. Xxxxx X. Subloo
CoalCorp Pty. Ltd
00 Xxxxxxx Xxxxxx
Xxxxxx XXX. 0000
Telephone: 00-0-00-000-000
Facsimile: 61-7-40-541-228
13. REMEDIES NOT EXCLUSIVE
No remedy conferred by any of the provisions of this Agreement is intended
to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every remedy given hereunder or now or
hereafter existing, at law or in equity by statute or otherwise. The election of
any one or more remedies by MAS or Coal shall not constitute a waiver of the
right to pursue other available remedies.
14. COUNTERPARTS
This Agreement may be executed in one or more counterparts each of which
shall be deemed to be an original but all of which together shall constitute one
and the same instrument.
15. CAPTIONS AND SECTION HEADINGS
Captions and section headings used herein are for convenience only and are
not a part of this Agreement and shall not be used in construing it.
16. WAIVERS
Any failure by any of the parties hereto to comply with all of the
obligations, agreements or conditions set forth herein may be waived by the
other party or parties, provided, however that any such waiver shall not be
deemed a waiver of any other obligation, agreement or condition contained
herein.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties. There
are not and shall not be any verbal statements, representations, warranties,
undertakings or agreements between the parties, and this Agreement may not be
amended or modified in any respect except by a written instrument signed by the
parties hereto.
18. APPLICABLE LAW
This Agreement shall be governed and construed in accordance with the laws
of the State of Indiana.
* * *
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
MAS Acquisition VI Corp.
By /s/ Xxxxx Xxxx
-----------------------------------------
Xxxxx Xxxx, President
CoalCorp Pty. Ltd
By /s/ Xxxxxx X. Subloo
-----------------------------------------
Xxxxxx X. Subloo
/s/ Xxxxx Xxxx Subloo
Xxxxx Xxxx Subloo
Director
