Exhibit "A"
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made effective this 19th
day of April, 2000, by and between, CyberAmerica Corporation ("CYA"), a Nevada
corporation with principal offices at 000 Xxxx 000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx
00000 and A-Z Oil, L.L.C., a Utah limited liability company, A-Z Professional
Consultants, Inc., a Utah corporation, A-Z Professional Consultants, Inc.,
Retirement Trust, a Utah private trust, the Xxxxx Xxxxxxx L.L.C., a Utah limited
liability company, and the Alexander Senkovski L.L.C. a Utah limited liability
company (collectively, the "Sellers") each with principal offices at 000 Xxxx
000 Xxxxx, xxxx Xxxx Xxxx, Xxxx 00000, with respect to the following:
RECITALS
WHEREAS, the Sellers collectively own 146,000 shares of FFP Partners,
L.P. common stock ("FFP Partners Shares"); and
WHEREAS, CYA desires to purchase the FFP Partners Shares from the
Sellers, but desires to pay for such shares with shares of its restricted common
stock rather than cash, pursuant to a written contract as set forth below; and
WHEREAS, the Sellers are willing to accept, on a pro rata basis as set
forth on Exhibit "A" attached hereto and incorporated herein by reference a
total of 55,620 shares of CYA's restricted common stock ("CyberAmerica Shares")
in consideration for 146,000 shares of FFP Partners, L.P. common stock that CYA
is purchasing from the Sellers.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which is expressly acknowledged, CYA and the Sellers
hereby agree as follows:
1. Purchase and Sale of Stock
Upon the terms and conditions contained herein, CYA agrees to purchase,
and the Sellers agree to sell, the FFP Partners Shares of stock valued at the
bid price of $1.00 per share as quoted on the AMEX on April 18, 2000, in
exchange for the CyberAmerica Shares valued at the bid price of $2.625 per share
as quoted on the OTC BB on April 18, 2000, which price the parties hereby agree
is fair and reasonable.
2. Delivery of Stock.
Upon execution of this Agreement ("Closing"), the certificates for the
CyberAmerica Shares of stock to be exchanged under this Agreement shall be
delivered to the Sellers on a pro rata basis as described on Exhibit "A" and the
FFP Partners Shares shall be delivered to CYA not later than 5 business days
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after Closing. CYA is relying upon the representations made by the Sellers in
making this exchange of stock.
3. Representation and Warranties of the Sellers:
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a. The Sellers are purchasing the CyberAmerica Shares for their own
account and not with a view towards distribution within the
meaning of the Securities Act of 1933, as amended (the "Act").
The Sellers hereby acknowledge that they have been advised and
are aware that (i) CYA is relying upon an exemption under the Act
predicated upon the Seller's representations and warranties
contained in this Agreement, and (ii) the CyberAmerica Shares
delivered to the Sellers pursuant to this Agreement will be
"restricted stock" within the meaning of the rules and
regulations (the "Rules") promulgated by the United States
Securities and Exchange Commission ("SEC") pursuant to the Act.
Unless, and until, the CyberAmerica Shares are registered under
the Act, they will be subject to limitations upon resale set
forth in the Rules or in other administrative interpretations by
the SEC in effect at the time of the proposed sale or other
disposition.
b. The Sellers have received all of the information they consider
necessary or appropriate for determining whether to purchase the
CyberAmerica Shares. The Sellers are familiar with the business,
affairs, risks and properties of CYA. The Sellers have had an
opportunity to ask questions of and receive answers from CYA, its
officers, directors and other representatives regarding the
CyberAmerica Shares and the terms and conditions of the purchase
of the CyberAmerica Shares. The Sellers have had the opportunity
to obtain any additional information CYA possesses or could
acquire without unreasonable effort or expense, necessary to
verify the accuracy of the information furnished.
c. The Sellers have such knowledge and expertise in financial and
business matters that they are capable of evaluating the merits
and substantial risks of an investment in the CyberAmerica Shares
and are able to bear the economic risks relevant to the purchase
of the CyberAmerica Shares hereunder.
d. The Sellers are relying solely upon independent consultation with
their professional, legal, tax and accounting advisors and such
others as the Sellers deem to be appropriate in connection with
the purchase of the CyberAmerica Shares; the Sellers have been
advised to, and have consulted with, their professional tax and
legal advisors with respect to any tax consequences associated
with the purchase of the CyberAmerica Shares.
e. The Sellers recognize that an investment in the securities of CYA
involves substantial risk and understands all of the risk factors
related to the purchase of the CyberAmerica Shares.
f. The Sellers understand that there may be no market for the
CyberAmerica Shares.
g. The Sellers' financial condition is such that the Sellers are
under no present or contemplated future need to dispose of any
portion of the CyberAmerica Shares to satisfy any existing or
contemplated undertaking, need or indebtedness.
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h. Without in any way limiting the representations set forth above,
the Sellers hereby further agree not to make any disposition of
all or any portion of the CyberAmerica Shares unless and until:
(1) There is then in effect a registration statement
under the Act covering such proposed disposition and
such disposition is made in accordance with such
registration statement; or
(2) The Sellers shall have notified CYA of the proposed
disposition and shall have furnished CYA with a
detailed statement of the circumstances surrounding
the proposed disposition, and if requested by CYA,
the Sellers shall have furnished CYA with an opinion
of counsel, in form that is reasonably satisfactory
to CYA and its counsel, that such disposition will
not require registration under the Act.
i. It is understood that the certificates evidencing the
CyberAmerica Shares will bear substantially the following
legends:
"The securities evidenced hereby have not been registered
under the Securities Act of 1933, as amended (the "Act") nor
qualified under the securities laws of any states, and have
been issued in reliance upon exemptions from such registration
and qualification for nonpublic offerings. Accordingly, the
sale, transfer, pledge, hypothecation, or other disposition of
any such securities or any interest therein may not be
accomplished except pursuant to an effective registration
statement under the Act and qualification under applicable
State securities laws, or pursuant to an opinion of counsel,
satisfactory in form and substance to CYA, to the effect that
such registration and qualification are not required."
j. The Sellers confer full authority upon CYA (i) to instruct its
transfer agent not to transfer any of the CyberAmerica Shares
until it has received written approval from CYA and (ii) affix
the legend in subparagraph (i) above to the face of the
certificate or certificates representing the CyberAmerica Shares.
k. The Sellers understand that CYA is relying upon the Sellers'
representations and warranties as contained in this Agreement in
consummating the sale and transfer of the CyberAmerica Shares
without registering them under the Act or any law. Therefore, the
Sellers hereby agree to indemnify CYA against, and hold CYA
harmless from, all losses, liabilities, costs, penalties and
expenses (including attorney's fees) which may arise as a result
of a sale, exchange or other transfer of the CyberAmerica Shares
other than as permitted under this Agreement. The Sellers hereby
further understand that CYA will make an appropriate notation on
its transfer records of the restrictions applicable to the
CyberAmerica Shares.
4. Representations and Warranties of CYA. CYA hereby represents and warrants
that:
a CYA is a corporation duly organized, validly existing under the
laws of the State of Nevada.
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b. CYA has all necessary corporate power and authority under the
laws of Nevada and all other applicable provisions of law to own
its properties and other assets now owned by it, to carry on its
business as now being conducted, and to execute and deliver and
carry out the provisions of this Agreement.
c. All corporate action on the part of CYA required for the lawful
execution and delivery of this Agreement and the issuance,
execution and delivery of the CyberAmerica Shares has been duly
and effectively taken. Upon execution and delivery, this
Agreement will constitute a valid and binding obligation of CYA,
enforceable in accordance with its terms, except as the
enforceability may be limited by applicable bankruptcy,
insolvency or similar laws and judicial decisions affecting
creditors' rights generally.
5. Survival of Representations, Warranties and Covenants. The representations,
warranties and covenants made by the Sellers and CYA in this Agreement
shall survive the purchase, sale, and exchange of the CyberAmerica Shares
and the FFP Partners Shares.
6. Transfer Agent Instructions. CYA's transfer agent will be instructed to
issue one or more stock certificates representing the Common Stock set
forth in Section 1 above, with the restrictive legend set forth in Section
3 above, in the name of the Sellers, as depicted on Exhibit "A" and will be
advised that the CyberAmerica Shares have been issued pursuant to Rule 144
of the Securities Act of 1933. CYA hereby further warrants that no stop
transfer instructions other than instructions to issue the CyberAmerica
Shares will be given to its transfer agent and that these shares shall be
freely transferable on the books and records of CYA, subject to compliance
with applicable securities laws.
7. Stock Delivery Instructions. The CyberAmerica Share certificates shall be
delivered to the Sellers at such times and places to be mutually agreed.
The FFP Partners Share certificates shall be delivered to CYA at such times
and places to be mutually agreed.
8 Governing Law. This Stock Purchase Agreement shall be governed by and
interpreted in accordance with the laws of the State of Utah, without
regard to its law on the conflict of laws. Any dispute arising out of this
Stock Purchase Agreement shall be brought in a court of competent
jurisdiction in Salt Lake City, Utah.
9. Miscellaneous
A. 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 the attention of the President at the address first indicated
above for the respective entity, or any new address which the
parties may hereafter designate by notice. All notices shall be
deemed to have been given as of the date of receipt.
B. Entire Agreement. This instrument sets forth the entire agreement
between the parties hereto and no prior or contemporaneous
written or oral statement or agreement shall be recognized or
enforced.
C. Severability. If a court of competent jurisdiction determines
that any clause or provision of this Agreement is invalid,
illegal or unenforceable, the other clauses and provisions of the
Agreement shall remain in full force and effect. The clauses and
provisions which the
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Court determines are void, illegal or unenforceable shall be
limited so that they remain in effect to the extent permissible
by law.
D. Assignment. Neither party may assign this Agreement without the
express written consent of the other party. However, if the other
party consents to the assignment such assignment will be bind and
inure to the benefit of the assignee.
G. Waiver of Jury Trial. To the extent permitted by law, the parties
hereby irrevocably waive a jury trial in the event of litigation.
The parties included this provision because of the cost and delay
of a jury trial and because the parties believe that a jury trial
would not be necessary to resolve any dispute or claim between
them.
H. Attorney's Fees. If either party institutes legal action or other
proceedings (including, but not limited to, arbitration) to
enforce or to declare any right or obligation under this
Agreement or as a result of a breach, default or
misrepresentation in connection with any of the provisions of
this Agreement, or otherwise because of a dispute among the
parties, the successful or prevailing party will be entitled to
recover reasonable attorney's fees. Attorney's fees shall include
fees for appeals, collections and other expenses incurred in such
action or proceeding. Legal fees shall be awarded in addition to
any other relief to which the prevailing party may be entitled.
I. No Third Party Beneficiary. Nothing in this Agreement, expressed
or implied, is intended to confer any rights or remedies upon any
person other than the parties hereto and their successors.
J. Facsimile Counterparts. If a party signs this Agreement and
transmits an electronic facsimile of the signature page to the
other party, the party who receives the transmission may rely
upon the electronic facsimile as a signed original of this
Agreement.
K. Further Assurances. At any time and from time to time, after the
date of this Agreement, each party will execute such additional
instruments and take such actions as are reasonably necessary to
confirm or perfect title to the Shares or otherwise to carry out
the intent and purposes of this Agreement.
L. Amendment or Waiver. Every right and remedy provided herein shall
be cumulative with every other right or remedy at law, or in
equity, and may be enforced concurrently herewith. No waiver by
any party of the performance of any obligation by the other shall
be construed as a waiver of the same or any other default then,
theretofore, or thereafter occurring or existing. At any time,
this Agreement may be amended by a writing signed by all affected
parties. Any term or condition of this Agreement may be waived or
the time for performance hereof may be extended by a writing
signed by the party or parties for whose benefit the provision is
intended.
M. Headings. The section and subsection headings in this Agreement
are inserted for convenience only. In the event of a conflict
between a heading and the text of this Agreement, the text shall
control the meaning and interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
DATED this 27th day of April, 2000.
CyberAmerica Corporation,
a Nevada corporation ("CYA")
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, President
A-Z Oil, L.L.C.,
a Utah limited liability company
By: /s/ XxxxxxXxxx X. Xxxxxxxx
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XxxxxxXxxx X. Xxxxxxxx, Manager
A-Z Professional Consultants, Inc.,
a Utah corporation,
By:/s/ XxxxxxXxxx X. Xxxxxxxx
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XxxxxxXxxx X. Xxxxxxxx, President
A-Z professional Consultants, Inc., Retirement Trust,
a Utah private trust,
By: /s/ XxxxxxXxxx X. Xxxxxxxx
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XxxxxxXxxx X. Xxxxxxxx, Agent
Xxxxx Xxxxxxx L.L.C.,
a Utah limited liability company,
By:/s/ XxxxxxXxxx X. Xxxxxxxx
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XxxxxxXxxx X. Xxxxxxxx, Agent
Alexander Senkovski L.L.C.,
a Utah limited liability company (collectively, the "Sellers")
By:/s/ XxxxxxXxxx X. Xxxxxxxx
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XxxxxxXxxx X. Xxxxxxxx, Agent
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Exhibit "A"
Number of FFP Partners Shares being sold to the CyberAmerica Corporation:
A-Z Oil, L.L.C. 23,900 shares = 16.36%
A-Z Professional Consultants, Inc. 18, 500 shares = 12.67%
A-Z Professional Consultants, Inc., Retirement Trust 4,200 shares = 2.87%
Xxxxx Xxxxxxx, L.L.C. 84,700 shares = 58.01%
Alexander Senkovski, L.L.C. 14,700 shares = 10.06%
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= 146,000 shares
The number of restricted shares of CyberAmerica common stock that the Sellers
shall receive on a pro rata basis in exchange for the FFP Shares is set forth
below.
A-Z Oil, L.L.C. 16.36% = 9,105 shares
A-Z Professional Consultants, Inc. 12.67% = 7,048 shares
A-Z Professional Consultants, Inc., Retirement Trust 2.87% = 1,600 shares
Xxxxx Xxxxxxx, L.L.C. 58.01% = 32,267 shares
Alexander Senkovski, L.L.C. 10.06% = 5,600 shares
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= 55,620 shares
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