EXHIBIT 2.2
ACQUISITION AGREEMENT
AGREEMENT (the "Agreement") dated November ___, 1996, by, between and
among AMERICAN COIN AND STAMP VENTURES, INC., a company incorporated under
the laws of the State of Delaware (hereinafter referred to as "AMERICAN") on
the one hand, and COLONY INTERNATIONAL INCORPORATED, a company incorporated
under the laws of the state of Nevada (hereinafter referred to as "COLONY")
and the persons listed on Exhibit "A" attached hereto and made a part
hereof, being all of COLONY's stockholders now and as of the closing date of
this Agreement (hereinafter referred to as the "Sellers") on the other.
WHEREAS, the Sellers own a total of 901,986 shares of common stock,
$0.007 par value, of COLONY, said shares being one hundred (100%) percent of
the issued and outstanding common stock of COLONY; and
WHEREAS, the Sellers desire to sell and AMERICAN desires to purchase one
hundred (100%) percent of such shares;
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereby agree as
follows:
1. PURCHASE AND SALE. The Sellers hereby agree to sell, transfer,
assign and convey to AMERICAN and AMERICAN hereby agrees to purchase and
acquire from the Sellers, one hundred (100%) percent of all of COLONY's
issued and outstanding common stock (the "COLONY Common Shares"), in a
reorganization pursuant to Section 368 (a)(1)(B) of the Internal Revenue Code.
2. PURCHASE PRICE. The aggregate purchase price to be paid by
AMERICAN for the COLONY Common Shares shall be 9,500,000 (post-reverse split)
shares of AMERICAN $0.0001 par value voting common stock, (the "AMERICAN
Common Shares"). The AMERICAN Common Shares will be issued to the individual
Sellers (8,200,000 shares) and the consultants (1,300,000 shares) described
in Section 12 herein ("Consultants") in accordance with Exhibits "A-1" and
"A-2" respectively, which are attached hereto. No fractional shares of
AMERICAN Common Stock will be issued; in lieu thereof, the number of shares
of AMERICAN Common Stock to be issued to each Seller will be rounded up to
the next whole share. Each of the Sellers hereby agrees to the terms of this
Agreement.
3. WARRANTIES AND REPRESENTATIONS OF COLONY AND SELLERS In order to
induce AMERICAN to enter into this Agreement and to complete the transaction
contemplated hereby, COLONY and Sellers warrant and represent to AMERICAN as
of the date hereof and as of the Closing that:
(a) ORGANIZATION AND STANDING. COLONY is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Nevada, is qualified to do business as a foreign corporation in British
Columbia and in every other state or jurisdiction in which it operates to the
extent required by the laws of such states and jurisdictions, and has full
power and authority to carry on its business as now conducted and to own and
operate its assets, properties and business. Attached hereto as Exhibit "B"
are true and correct copies of COLONY's Certificate of Incorporation,
amendments thereto and all current By-laws of COLONY. No changes thereto
will be made in any of the Exhibit "B" documents before the Closing.
(b) CAPITALIZATION. As of the date hereof, COLONY's entire
authorized equity capital consists of 60,000,000 shares of Common Stock
$0.007 par value, of which 901,986 shares of Common Stock are issued and
outstanding. As of the Closing Date, there will be no other voting or equity
securities authorized or issued, nor any authorized or issued securities
convertible into voting stock, and no outstanding subscriptions, warrants;
calls, options, rights, commitments or agreements by which COLONY or the
Sellers are bound, calling for the issuance of any additional shares of
common stock or any other voting or equity security, except for the shares to
be issued to the Consultants which shares will be exchanged for a total of
1,300,000 shares of AMERICAN stock. All of such Colony Common Shares have
been duly authorized and validly issued and are fully paid and non-assessable
and were not issued in violation of any preemptive rights or any applicable
securities laws. The 901,986 issued and outstanding COLONY Common Shares
constitute one hundred (100%) percent of the equity capital of COLONY, which
includes, INTER ALIA, one hundred (100%) percent of COLONY's voting power,
right to receive dividends, when, as and if declared and paid, and the right
to receive the proceeds of liquidation attributable to common stock, if any.
(c) OWNERSHIP OF COLONY SHARES. As of the date hereof, the
Sellers are the sole owners of the COLONY Common Shares, free and clear of
all liens, encumbrances, and restrictions whatsoever, except that the COLONY
Common Shares have not been registered under the Securities Act of 1933, as
amended (the "'33 Act"), or any applicable State Securities laws. By the
transfer of the COLONY Common Shares to AMERICAN pursuant to this Agreement,
AMERICAN will thereby acquire good and marketable title to 100% of the
capital stock of COLONY, free and clear of all liens, encumbrances and
restrictions of any nature whatsoever, except by reason of the fact that the
COLONY Common Shares will not have been registered under the '33 Act, or any
applicable State Securities laws.
(d) TAXES. COLONY has filed all federal, state and local
income or other tax returns and reports that it is required to file with all
governmental agencies, wherever situated, and has paid or accrued for payment
all taxes as shown on such returns, such that a failure to file, pay or
accrue will not have a Material Adverse Effect on COLONY. Such returns have
been prepared in accordance with the applicable tax laws and rules and
regulations thereunder to which COLONY is subject and Sellers have delivered
true and complete copies of all such tax returns to AMERICAN.
(e) PENDING ACTIONS. There are no material legal actions,
lawsuits, proceedings or investigations, either administrative or judicial,
pending or threatened, against or affecting COLONY, or against COLONY's
Officers or Directors or the Sellers that arise out of their operation of
COLONY, except as described in Exhibit "C" attached hereto. COLONY is not
knowingly in violation of any law, material ordinance or regulation of any
kind whatever, including, but not limited to laws, rules and regulations
governing the sale of its products and/or services, the '33 Act, the
Securities Exchange Act of 1934 (the "'34 Act") as amended, the Rules and
Regulations of the U.S. Securities and Exchange Commission ("SEC"), or the
securities laws and regulations of any state. Neither COLONY nor Sellers are
subject to any order, writ, judgment, injunction, decree, determination or
award of any court, arbitrator or administrative, governmental or regulatory
authority or body.
(f) GOVERNMENTAL REGULATION. COLONY holds the licenses and
registrations set forth on Exhibit "D" hereto from the jurisdictions set
forth therein, which licenses and registrations are all of the licenses and
registrations necessary to permit COLONY to conduct its current business.
All of such licenses and registrations are in full force and effect, and
there are no proceedings, hearings or other actions pending that may affect
the validity or continuation of any of them. No approval of any other trade
or professional association or agency of government other than as set forth
on Exhibit "D" is required for any of the transactions effected
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by this Agreement, and the completion of the transactions contemplated by this
Agreement will not, in and of themselves, affect or jeopardize the validity or
continuation of any of them.
(g) OWNERSHIP OF ASSETS. Except as set forth in Exhibit "E",
COLONY has good, marketable title, without any liens or encumbrances of any
nature whatever, to all of the following, if any: its assets, properties and
rights of every type and description, including, without limitation, all cash on
hand and in banks, certificates of deposit, stocks, bonds, and other securities,
good will, customer lists, its corporate name and all variants thereof,
trademarks and trade names, copyrights and interests thereunder, licenses and
registrations, pending licenses and permits and applications therefor,
inventions, processes, know-how, trade secrets, real estate and interests
therein and improvements thereto, machinery, equipment, vehicles, notes and
accounts receivable, fixtures, rights under agreements and leases, franchises,
all rights and claims under insurance policies and other contracts of whatever
nature, rights in funds of whatever nature, books and records and all other
property and rights of every kind and nature owned or held by COLONY as of this
date, and will continue to hold such title on and after the completion of the
transactions contemplated by this Agreement; nor, except in the ordinary course
of its business, has COLONY disposed of any such asset since the date of the
most recent balance sheet described in Section 3(o) of this Agreement. COLONY's
waste disposal process does not infringe any outstanding patent held by any
other person or entity.
(h) NO INTEREST IN SUPPLIERS, CUSTOMERS, LANDLORDS OR COMPETITORS.
Neither the Sellers nor any member of their families have any interest of any
nature whatever in any supplier, customer, landlord or competitor of COLONY.
(i) NO DEBT OWED BY COLONY TO SELLERS. Except as set forth in
Exhibit "F", COLONY does not owe any money, securities, or property to either
the Sellers or any member of their families or to any company controlled by or
under common control with such a person, directly or indirectly.
(j) CORPORATE RECORDS. All of COLONY's books and records,
including, without limitation, its books of account, corporate records, minute
book, stock certificate books and other records of COLONY are up-to-date,
complete and reflect accurately and fairly the conduct of its business in all
material respects since its date of incorporation. All reports, returns and
statements currently required to be filed by COLONY, with respect to the
business and operations of COLONY, with any governmental agency have been filed
or valid extensions have been obtained in accordance with normal procedures and
all governmental reporting requirements have been complied with.
(k) NO MISLEADING STATEMENTS OR OMISSIONS. Neither this Agreement
nor any financial statement, exhibit, schedule or document attached hereto or
presented to AMERICAN in connection herewith, contains any materially misleading
statement, or omits any fact or statement necessary to make the other statements
or facts therein set forth not materially misleading.
(l) VALIDITY OF THE AGREEMENT. All corporate and other proceedings
required to be taken by the Sellers and by COLONY in order to enter into and to
carry out this Agreement have been duly and properly taken. This Agreement has
been duly executed by the Sellers and by COLONY, and constitutes the valid and
binding obligation of each of them, except to the extent limited by applicable
bankruptcy, reorganization, insolvency, moratorium or other laws relating to or
effecting generally the enforcement of creditors rights. The execution and
delivery of this Agreement and the carrying out of its purposes will not result
in the breach of any of the terms or conditions of, or constitute a default
under or violate, COLONY's Certificate of Incorporation or By-Laws, or any
material agreement, lease, mortgage, bond, indenture, license or other material
document or undertaking, oral or written, to which COLONY or the Sellers is a
party or is bound or may be
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affected, nor will such execution, delivery and carrying out violate any order,
writ, injunction, decree, law, rule or regulation of any court, regulatory
agency or other governmental body; and the business now conducted by COLONY can
continue to be so conducted after completion of the transaction contemplated
hereby, with COLONY as a wholly-owned subsidiary of AMERICAN.
(m) ENFORCEABILITY OF THE AGREEMENT. When duly executed and
delivered, this Agreement and the Exhibits hereto which are incorporated
herein and made a part hereof are legal, valid, and enforceable by AMERICAN
according to their terms, except to the extent limited by applicable
bankruptcy, reorganization, insolvency, moratorium or other laws relating to
or effecting generally the enforcement of creditors rights, and that at the
time of such execution and delivery, AMERICAN will have acquired title in and
to the COLONY Common Shares free and clear of all claims, liens and
encumbrances.
(n) ACCESS TO BOOKS AND RECORDS. AMERICAN will have full and free
access to COLONY's books during the course of this transaction prior to and at
the Closing, during regular business hours.
(o) COLONY FINANCIAL STATEMENTS. Attached hereto as Exhibit "G-1"
are recent unaudited financial statements of COLONY. Within 45 days after the
Closing, COLONY's audited financial statements will be provided to AMERICAN, and
will be annexed hereto as Exhibit "G-2"; the COLONY financial statements will
accurately describe COLONY's financial position as of the date thereof. COLONY's
financial statements will have been prepared in accordance with generally
accepted accounting principles in the United States ("GAAP") (or as permitted by
regulation S-X, S-B, and/or the rules promulgated under the U.S. Securities Act
of 1933 and the U.S. Securities Exchange Act of 1934) and present fairly in all
material respects the financial condition of COLONY as of the dates thereof and
will have been certified by independent certified public accountants with
substantial SEC experience. Without limiting any of the foregoing
representations and warranties, there are no liabilities of COLONY which will
not be reflected on the COLONY financial statements; and the audited financial
statements in Exhibits "G-2" will show no material adverse change from the
unaudited financial statements contained in Exhibit "G-1".
(p) COLONY'S CORPORATE SUMMARY. COLONY's Corporate Summary,
prepared in July, 1996 (attached hereto as Exhibit "L") accurately describes
COLONY's business, assets, proposed operations and management as of the date
thereof, since the date of the Corporate Summary, there has been no material
change in the Business Plan and no material adverse change in COLONY of any kind
or nature whatsoever.
(q) NO BROKERS. Except as set forth in paragraphs 4(b) and 12
below, no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with any of the transactions
contemplated by this Agreement.
(r) COMPLIANCE WITH LAWS. COLONY represents and warrants that is
has complied with, and is not in violation of any applicable federal, state, or
local statutes, laws or regulations as respects the ownership of its property or
the operation of its business.
(s) COMPLIANCE WITH LAWS; ENVIRONMENTAL OR OTHER RELATED MATTERS.
COLONY's operations have been conducted in all material respects in accordance
with all applicable statutes, laws, rules and regulations. COLONY is not in
violation of any Federal, state, local or foreign law, ordinance or regulation
or any Governmental Order applicable to COLONY or by which any of its properties
is subject, bound or affected. There is no Governmental Order outstanding
against COLONY (nor, to the best knowledge of COLONY, threatened to be issued)
that will or would have a Material Adverse Effect. Except as disclosed herein,
COLONY currently holds (and at the Closing will hold) all the environmental,
health and safety and
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other permits, licenses, authorizations, certificates and approvals of
Governmental Authorities, whether Federal, state, local or foreign
(collectively, "Permits"), necessary or proper for the current use, occupancy
or operation of the Business, and all of the Permits are now and at the
Closing will be in full force and effect. Schedule "S" annexed hereto and
made a part hereof contains a list of all material Permits and all material
applications for Permits relating to COLONY and the Business. COLONY has not
received and has no reason to believe it will receive any notice that any
Governmental Authority is considering revoking, canceling, rescinding,
materially modifying or refusing to renew any of the Permits. Except as
otherwise disclosed herein, there is no existing practice, action or plan of
COLONY and no existing condition of the assets of COLONY that may give rise
to any civil or criminal liability under, or violate or prevent compliance
with, any environmental, health or occupational safety or other applicable
statute, regulation, ordinance, decree or Permit other than those practices,
action, plans and conditions the existence of which will not have a Material
Adverse Effect. Schedule "T" identifies all Permits that require consent,
notification or other action to remain in full force and effect following the
consummation of the transaction contemplated hereby.
4. WARRANTIES AND REPRESENTATIONS OF AMERICAN. In order to induce
the Sellers and COLONY to enter into this Agreement and to complete the
transaction contemplated hereby, AMERICAN warrants and represents to COLONY
and Sellers that:
(a) ORGANIZATION AND STANDING. AMERICAN is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, is qualified to do business as a foreign corporation in
every other state in which it operates to the extent required by the laws of
such states, and has full power and authority to carry on its business as now
conducted and to own and operate its assets, properties and business.
(b) CAPITALIZATION. AMERICAN's entire authorized equity
capital consists of 100,000,000 shares of voting common stock, $.0001 par
value. As of the Closing, after giving effect to (a) the proposed
one-for-19.926 reverse split of AMERICAN's 9,788,000 currently outstanding
shares and its 175,000 stock options; the issuance of 9,500,000 post-reverse
split shares to COLONY'S shareholders (which consists of 8,200,000 restricted
shares to COLONY's current shareholders and 1,300,000 shares to Consultants
in payment for their services in connection with this transaction); and (c)
the amendment to AMERICAN's is authorized capital stock, AMERICAN will have
20,000,000 shares of Common Stock, $.0001 par value authorized and 10,000,000
shares of voting common stock, $.0001 par value issued and outstanding
(including shares reserved for exercise of the aforesaid options). Upon
issuance, all of the AMERICAN Common Stock will be validly issued fully paid
and non-assessable. The relative rights and preferences of AMERICAN's equity
securities are set forth on the Certificate of Incorporation, as amended and
AMERICAN's By-laws (Exhibit "H" hereto). There are no other voting or equity
securities convertible into voting stock, and no outstanding subscriptions,
warrants, calls, options, rights, commitments or agreements by which AMERICAN
is bound, calling for the issuance of any additional shares of common stock
or any other voting or equity security. The By-laws of AMERICAN provide that
a simple majority of the shares voting at a stockholders' meeting at which a
quorum is present may elect all of the directors of AMERICAN. Cumulative
voting is provided for by the By-Laws or Certificate of Incorporation of
AMERICAN. Accordingly, as of the Closing the 9,500,000 shares being issued
to and acquired by the Sellers (including the shares issued to Consultants)
will constitute 95% of the 10,000,000 shares of AMERICAN which will then be
issued and outstanding, (including after giving effect to the issuance of the
above-stated number of shares as payment for all consulting fees and
commissions) which includes, INTER ALIA, that same percentage of AMERICAN's
voting power, right to receive dividends, when, as and if declared and paid,
and the right to receive the proceeds of liquidation attributable to common
stock, if any.
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(c) OWNERSHIP OF SHARES. By AMERICAN's issuance of the
AMERICAN Common Shares to the Sellers pursuant to this Agreement, the Sellers
will thereby acquire good and marketable title thereto, free and clear of all
liens, encumbrances and restrictions of any nature whatsoever, except by
reason of the fact that such AMERICAN shares will not have been registered
under the '33 Act.
(d) SIGNIFICANT AGREEMENTS. AMERICAN is not and will not at
Closing be bound by any of the following other than where already disclosed
in any other exhibit, unless specifically listed in Exhibit "I" hereto:
(i) Employment, advisory or consulting contract;
(ii) Plan providing for employee benefits of any nature;
(iii) Lease with respect to any property or equipment;
(iv) Contract or commitment for any future expenditure
in excess of $1,000;
(v) Contract or commitment pursuant to which it has
assumed, guaranteed, endorsed, or otherwise become
liable for any obligation of any other person, firm
or organization;
(vi) Contract, agreement, understanding, commitment or
arrangement, other than in the normal course of
business, not fully disclosed or set forth in this
Agreement;
(vii) Agreement with any person relating to the dividend,
purchase or sale of securities, that has not been
settled by the delivery or payment of securities when
due, and which remains unsettled upon the date of
this Agreement.
(e) TAXES. AMERICAN has filed all federal, state and local
income or other tax returns and reports that it is required to file with all
governmental agencies, wherever situate, and has paid all taxes as shown on
such returns such that a failure to file, pay or accrue will not have a
Material Adverse Effect on AMERICAN. Such returns have been prepared in
accordance with the applicable tax laws and rules and regulations thereunder
to which AMERICAN is subject and AMERICAN has delivered true and complete
copies of all such tax returns for the periods August 1, 1992 to July 31,
1995 to COLONY.
(f) ABSENCE OF LIABILITIES. At and as of the Closing Date and
after giving effect to the sale of all of AMERICAN's assets to and the
assumption of liabilities by Xxxxxx Xxxxx and Xxxxxx Xxxxx, AMERICAN will
have no liabilities of any kind or nature, undisclosed fixed or contingent,
except for (i) the costs, including legal and accounting fees and other
expenses, in connection with this transaction, for which AMERICAN agrees to
be responsible and to pay in full at or before the Closing, AND (ii) THE
TRANSACTION DESCRIBED IN SECTION 7(b)(vi) HEREIN.
(g) NO PENDING ACTIONS. There are no material legal actions,
lawsuits, proceedings or investigations, either administrative or judicial,
pending or threatened, against or affecting AMERICAN, or against any of
AMERICAN's officers or directors and arising out of their operation of
AMERICAN that are reasonably likely to have a Material Adverse Effect on
American. AMERICAN is not knowingly in violation of any law, ordinance or
regulation of any kind whatever, including, but not limited to, the '33 Act,
the 1934 Act, as amended, the Rules and Regulations of the SEC, or the
securities laws and regulations of any state.
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AMERICAN is not an investment company as defined in the Securities laws.
AMERICAN is not required to file reports pursuant to either Section 12(g) or
15(d) of the '34 Act.
(h) CORPORATE RECORDS. All of AMERICAN's books and records,
including, without limitation, its books of account, corporate records,
minute book, stock certificate books and other records are up-to-date,
complete and reflect accurately and fairly the conduct of its business in all
material respects since its date of incorporation; all of said books and
records will be delivered to AMERICAN's new management at the Closing.
(i) NO MISLEADING STATEMENTS OR OMISSIONS. Neither this
Agreement nor any financial statement, exhibit, schedule or document attached
hereto or presented to COLONY in connection herewith contains any materially
misleading statement, or omits any fact or statement necessary to make the
other statements or facts therein set forth not materially misleading.
(j) VALIDITY OF THE AGREEMENT. All corporate and other
proceedings required to be taken by AMERICAN in order to enter into and to
carry out this Agreement have been duly and properly taken. This Agreement
has been duly executed by AMERICAN, and constitutes a valid and binding
obligation of AMERICAN except to the extent limited by applicable bankruptcy
reorganization, insolvency, moratorium or other laws relating to or effecting
generally the enforcement of creditors rights. The execution and delivery of
this Agreement and the carrying out of its purposes will not result in the
breach of any of the terms or conditions of, or constitute a default under or
violate, AMERICAN's Certificate of Incorporation or By-Laws, or any material
agreement, lease, mortgage, bond, indenture, license or other document or
undertaking, oral or written, to which AMERICAN is a party or is bound or may
be affected, nor will such execution, delivery and carrying out violate any
order, writ, injunction, decree, law, rule or regulation of any court,
regulatory agency or other governmental body.
(k) ENFORCEABILITY OF THE AGREEMENT. When duly executed and
delivered, this Agreement and the Exhibits hereto which are incorporated
herein and made a part hereof are legal, valid, and enforceable by COLONY and
the Sellers according to their terms, except to the extent limited by
applicable bankruptcy reorganization, insolvency, moratorium or other laws
relating to or effecting generally the enforcement of creditors rights; and
at the time of such execution and delivery, the Sellers will have acquired
good, marketable title in and to the AMERICAN Common Shares acquired pursuant
hereto, free and clear of all liens and encumbrances.
(l) ACCESS TO BOOKS AND RECORDS. COLONY and Sellers will have
full and free access during regular business hours and on reasonable prior
notice to AMERICAN's books and records during the course of this transaction
prior to and at the Closing.
(m) AMERICAN FINANCIAL STATEMENTS. Within 45 days after the
Closing, AMERICAN will provide COLONY with recent audited financial
statements, which will be certified in accordance with GAAP by independent
certified public accountants with substantial SEC experience.
(n) AMERICAN FINANCIAL CONDITION. After consummation of all of
the transactions contemplated whereby AMERICAN will have no assets or
liabilities, EXCEPT AS SET FORTH IN SECTION 7(b)(vi).
(o) DIRECTORS' APPROVAL. Promptly upon the signing of this
Agreement, AMERICAN'S Board of Directors, by meeting or consent, will
authorize the matters described in section 7(b)(i) herein.
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5. TERM. All representations, warranties, covenants and agreements
made by any party herein and in the exhibits attached hereto shall survive
the execution and delivery of this Agreement and payment pursuant thereto.
6. THE AMERICAN SHARES AND COLONY SHARES. All of the AMERICAN and the
COLONY Common Shares shall be validly issued, fully-paid and non-assessable
shares of AMERICAN and COLONY Common Stock respectively,, with full voting
rights, dividend rights, and right to receive the proceeds of liquidation, if
any, as set forth in the respective Articles of Incorporation.
7. CONDITIONS PRECEDENT TO CLOSING. (a) The obligations of COLONY and
Sellers under this Agreement shall be and are subject to fulfillment, prior
to or at the Closing, of each of the following conditions:
(i) That AMERICAN's representations and warranties contained
herein shall be true and correct at the time of Closing, as if such
representations and warranties were made at such time;
(ii) That AMERICAN in all material respects shall have performed
or complied with all agreements, terms and conditions required by this
Agreement to be performed or complied with by it prior to or at the time of
Closing;
(iii) That AMERICAN's directors, by proper and sufficient vote
taken either by consent of directors or at a meeting duly and properly called
and held, shall have properly approved all of the matters described in
Section 7(b)(i) herein;
(iv) That AMERICAN shall have filed the notice of the reverse
split required by Rule 10b-17 under the '34 Act, and shall have sent notice
to its stockholders of the transactions contemplated herein;
(v) That Messrs. Xxxxx and Xxxxx shall have signed agreements
stating that neither shall publicly sell any of his shares for 90 days after
the Closing; AND THEREAFTER THEY WILL NOT SELL COLLECTIVELY IN ANY CALENDAR
MONTH, MORE THAN THE GREATER OF (A) 1/4 OF 1% OF THE TOTAL NUMBER OF SHARES
OF COMMON STOCK ISSUED AND OUTSTANDING, OR (B) 20,000 SHARES, without
COLONY's prior written consent; AND
(vi) THAT AMERICAN WILL HAVE SOLD FOR $100 ALL OF ITS EXISTING
ASSETS AND BUSINESS, SUBJECT TO ALL OF ITS LIABILITIES TO A COMPANY
CONTROLLED BY XXXXXX XXXXX AND XXXXXX XXXXX.
(b) The obligations of AMERICAN under this Agreement shall be and are
subject to fulfillment, prior to or at the Closing of each of the following
conditions:
(i) That AMERICAN'S Shareholders and Board of Directors, by proper
and sufficient vote, shall have approved this Agreement and the transactions
contemplated hereby; approved the contemplated reverse split of AMERICAN's
outstanding Common Stock; approved the change of the authorized Common Stock
to 20,000,000 shares; approved the resignation of all of AMERICAN'S current
directors and the election of up to four designees of COLONY to serve as
directors in place of AMERICAN's current directors; approved a change of
AMERICAN'S corporate name to a name selected by COLONY and will have approved
such other changes as are consistent with this Agreement and approved by
COLONY for submission to AMERICAN stockholders;
(ii) That COLONY's and Sellers' representations and warranties
contained herein shall be true and correct at the time of Closing as if such
representations and warranties were made at such time and that
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there shall have been no Material Adverse Effect with respect to COLONY; and
American shall have received a certificate of COLONY and Sellers to such an
effect signed by a duly authorized officer of COLONY and by each of the
Sellers; and
(iii) That COLONY and Sellers shall have performed or complied with
all agreements, terms, and conditions required by this Agreement to be
performed or complied with by them prior to or at the time of Closing Date
and AMERICAN shall have received a Certificate of COLONY and Sellers to such
effect signed by or duly authorized officer of COLONY and by each of the
Sellers;
(iv) That COLONY's officers will have signed non-compete clauses
in the form attached hereto as Exhibit "J";
(v) That COLONY shall have delivered a signed letter of intent
from a U.S.-based NASD member broker-dealer providing for a proposed "best
efforts" secondary offering of AMERICAN's securities in an amount of at least
$6.5 million; the letter of intent shall contain the usual and customary
provisions AND SHALL BE ATTACHED AS EXHIBIT "K"; and
(vi) THAT COLONY OR ITS DESIGNEE SHALL HAVE LENT $40,000 TO
AMERICAN AT THE CLOSING, BY CERTIFIED CHECK DRAWN ON A NEW YORK BANK, WHICH
FUNDS WILL BE INCLUDED IN THE ASSETS ACQUIRED BY THE COMPANY DESCRIBED IN
SECTION 7(a)(vi), BUT THE LIABILITY FOR REPAYMENT OF WHICH SHALL NOT BE
ASSUMED BY THAT COMPANY.
8. TERMINATION. This Agreement may be terminated at any time before or
at Closing, by:
(a) The mutual agreement of the parties;
(b) Any party if:
(i) Any provision of this Agreement applicable to a party shall
be materially untrue or fail to be accomplished.
(ii) Any legal proceeding shall have been instituted or shall
be imminently threatening to delay, restrain or prevent the
consummation of this Agreement or any material component
thereof.
Upon termination of this Agreement for any reason, in accordance with
the terms and conditions set forth in this paragraph, each said party shall
bear all costs and expenses as each party has incurred and no party shall be
liable to the other for such costs and expenses.
9. EXHIBITS. All Exhibits attached hereto are incorporated herein by
this reference as if they were set forth in their entirety.
10. MISCELLANEOUS PROVISIONS. This Agreement is the entire agreement
between the parties in respect of the subject matter hereof, and there are no
other agreements, written or oral, nor may this Agreement be modified except
in writing and executed by all of the parties hereto. The failure to insist
upon strict compliance with any of the terms, covenants or conditions of this
Agreement shall not be deemed a waiver or relinquishment of such right or
power at any other time or times.
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11. CLOSING. The Closing of the transactions contemplated by this
Agreement ("Closing") shall take place at 1:00 P.M. on the first business day
after the latter of the Sellers approving this Agreement or the shareholders
of AMERICAN approving this Agreement and the matters referred to in
Section 7(b)(i), or such other date as the parties hereto shall agree upon.
At the Closing, all of the documents and items referred to herein shall be
exchanged.
12. FEES AND COMMISSIONS. As compensation for its services in
initiating this transaction and ongoing consulting services to COLONY, COLONY
acknowledges that 1,300,000 of the 9,500,000 shares being issued to COLONY's
shareholders hereunder are being issued under Rule 504 in cancellation of all
debts owed to the Consultants for their services rendered or otherwise
arising out of this Agreement and the transactions contemplated hereby.
Pursuant to the Consulting Agreements attached hereto as Exhibit "X", 600,000
of such shares are being issued to COLONY's designees and the 700,000 remaining
shares will be issued equally between (a) Olympic Capital Group, Inc. and its
designees, and (b) Xxxxxx Securities and its designees.
13. NO THIRD PART BENEFICIARIES. The provisions of this Agreement are
for the exclusive benefit of the parties who are signatories hereto and their
permitted successors and assigns, and no third party shall be a beneficiary
of, or have any rights by virtue of, this Agreement.
14. ASSIGNMENT; BINDING EFFECT. This Agreement, including both its
obligations and benefits, shall redound to the benefit of, and be binding on
the respective permitted assigns, transferees and successors of the parties.
This Agreement may not be assigned or transferred in whole or in part by
either party without the prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed.
15. NON-RECOURSE. Notwithstanding anything contained in this Agreement
to the contrary, it is expressly understood and agreed by the parties hereto
that each and every representation, warranty, covenant, undertaking and
agreement made in this Agreement (except with respect to the Sellers) was not
made nor intended to be made as a personal representation, undertaking,
warranty, covenant, or agreement on the part of any incorporator,
stockholder, director, officer, partner, employee or agent, past present or
future, or any of them and any recourse on account of any such
representations, warranties, covenants, undertakings or agreements made in
this Agreement, whether in common law, in equity, by statute or otherwise,
against any of them (except with respect to the Sellers) is hereby forever
waived and released.
16. MATERIAL ADVERSE EFFECT. As used in this Agreement, "Material
Adverse Effect" with respect to a party means any change in, or effect on,
the business conducted by such party that is, or is reasonably likely to be,
materially adverse to (i) the business results of operations, prospects or
condition (financial or otherwise) of such party and its Subsidiaries, taken
as a whole, or (ii) the assets and properties used or useful in the conduct
of the business of such party and its Subsidiaries, taken as a whole.
17. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Delaware.
18. COUNTERPARTS. This Agreement may be executed in duplicate
facsimile counterparts, each of which shall be deemed an original and
together shall constitute one and the same binding Agreement, with one
counterpart being delivered to each party hereto.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals as
of the date and year above first written.
AMERICAN COIN AND STAMP VENTURES, INC.
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
President
4/27/96
COLONY INTERNATIONAL INCORPORATED
By: /s/ President & C.O.O. S. Xxxxxx
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November 28, 1996
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SELLERS:
/s/ X. Xxxxxx
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Xxxxx Xxxxxx
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