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EXHIBIT 10.3
Agreement dated 29 September, 1997, between Park Investments Limited and
International Resort Developers, Inc.
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AGREEMENT FOR THE SALE AND PURCHASE OF SHARES
Date: 29 September, 1997
PARTIES
1. PARK INVESTMENTS LIMITED ( "the Seller")
2. INTERNATIONAL RESORT DEVELOPERS, INC. (incorporated in Idaho) of ("the
Buyer")
RECITALS
1. Growth Strategies Inc. ("the Company") is incorporated in Arkansas with an
authorized capital of 1,000 shares of $1.00 each all of which are issued ("the
Shares") and are held by the Seller. The Company has agreed to change its name
to Ameristar Worldwide Entertainment Corporation.
2. The Company carries on from premises at 0000 Xxxx Xxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxxxxxx ("the Premises") the businesses of network access and
long-distance services, network marketing, direct broadcast service, and home
theater equipment ("the Business") and is the owner of the trade name "Ameristar
Worldwide Entertainment"
3. The Buyer is a Reporting Company whose shares are registered with the SEC and
quoted on NASDAQ. The authorized capital of the Buyer is 100,000,000 shares of
$0.10 each of which approximately 1,807,124 are, or will be at closing, in
issue.
4. The Sellers are willing to sell and the Buyers to buy the Shares on the terms
of this Agreement.
IT IS HEREBY AGREED AS FOLLOWS
Sale and Purchase
1. Subject to the conditions herein contained the Sellers agree to sell and the
Buyer agrees to buy all the Shares. The consideration for the sale shall be:
(a) The issue by the Buyer to the Seller of 400,000 newly issued common
shares of the Buyer ("the Basic Consideration Shares")
(b) The further issue of shares in the capital of the Buyer ("the
Additional Consideration Shares") on the basis of 3,000 such shares for
each $1,000 of after-tax net profit earned by the Company in excess of
$1,000,000 during each of the calendar years 1998 and 1999, as shown in
the Company's audited accounts. Such number of Additional Consideration
Shares as are to be issued pursuant to this clause shall be issued to
the Sellers, or as the Sellers may direct, within ten working days of
the auditors of the
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Company certifying the accounts of the Company for the year in
question, as fully paid and ranking equally in all respects with
existing issued share capital of the Buyer. Provided that
notwithstanding the foregoing, the above-said number of shares to be
issued for each $1,000 of after-tax net profit shall be adjusted
pro-rata to reflect any stock split or consolidation (reverse stock
split) of shares of the Buyer hereafter effected.
(c) It is acknowledged by the Sellers that the Basic Consideration
Shares and the Additional Consideration Shares may not be
re-transferred by Sellers, in a public offering or sale, inclusive of
sales on NASDAQ, without an effective registration statement, covering
such offer and/or sale, under the Securities Act of 1933, and any
applicable provision of state law, unless an exemption from such
registration is available; and that the Basic Consideration Shares and
Additional Consideration Shares will be suitably legended to reflect
said restricted status. The Buyer undertakes that as soon as practical
after the issuance of the Basic Consideration shares, and after the
issuance of Additional Consideration Shares, it shall file such
registration statement or statements with the SEC as may be necessary
to qualify said shares for resale in the public markets, under federal
law, and will utilize its best efforts to secure the effectiveness of
such registration statement or statements, and as expeditiously as
possible.
Conditionality
2. Each of the parties' respective obligations to close the transaction hereby
agreed to shall be conditional upon:
(a) The approval of the transaction by the shareholders of the Buyer at
a duly called meeting of its shareholders. Buyer agrees that it will
utilize it best efforts to hold such a meeting in October, 1997,
pursuant to compliance with the rules of the Securities and Exchange
Commission regarding necessary filings with the commission and mailings
to shareholders in connection with such meeting.
(b) There having been no breaches by the other party of any of the
provisions hereof prior to the closing date and all warranties and
representations made by either party remain correct as at closing.
(c) There having been no material adverse change in the financial
position or prospects of the other party prior to the closing date
since the date on which the affairs of such other party were duly and
diligently investigated prior to the execution hereof.
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Closing
3. Closing shall take place at Nashville, Tennessee within ten days of the
approval of the transaction by the shareholders of the Buyer, or at such other
time and place as the parties may agree, at which time:
(a) The Sellers shall deliver to the Buyer:
(i) Certificates representing all of the Shares endorsed for
transfer to the Buyer by the owner of record thereof.
(ii) A corporate resolution of any corporate holders of the
Shares authorizing the transfer thereof in such form as the
Buyer shall require.
(iii) A resolution of the directors of the Company resolving
to register the transfer of the Shares to the Buyer.
(iv) The corporate books and records of the Company.
(v) A resolution of the directors of the company appointing as
directors and officers of the Company such persons as the
Buyer shall have nominated.
(vi) The resignations of the directors of the Company which
the Buyer shall have the option to decline.
(vii) Certificates of all banks at which the Company has
accounts (including merchant accounts) of the balances at the
close of business the previous day with copies of all bank
mandates and signature authorities.
(viii) An opinion of the company's counsel, satisfactory to
the Buyer, as to the following:
(1) That the Company is validly incorporated and is
in good standing in the state of Arkansas.
(2) That the Shares in the Company which have been
assigned to the Buyer are validly issued and
non-assessable, and constitute all of the issued and
outstanding shares of the Company.
(3) That the assignments of the Shares to the buyer
have been validly executed by the Sellers; that said
assignments are effective to convey, and have
conveyed, all of the rights and interest of the
Sellers in said shares to the Buyer; and that the
Buyer, as a result of said assignments, is vested
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with all rights, respecting the Shares or which
derive from ownership of the Shares, as were
previously possessed by the Sellers.
(4) That there are no agreements, corporate governing
instruments, or provisions of law, which prevent or
otherwise condition the transfer of the Shares by the
Sellers to the Buyer, or which prevent or condition
the vesting of all voting and other rights attendant
to ownership of the Shares in the Buyer.
(5) That the resignations of the Directors of the
company are effective; that the resolution of such
Directors, prior to their resignation, appointing as
directors and officers of the company those persons
nominated by the buyer, has been duly adopted; and
that said resolution is effective pursuant to the
corporate governing documents of the Company, and all
applicable laws, to effectuate the appointment of the
persons nominated by the Buyer as directors and
officers of the company without further necessity of
shareholder approval or other corporate action.
(6) That counsel for the Company is unaware of any
pending litigation in which claims have been made
against the Company, or of other claims which have
been made or threatened against the Company, or of
circumstances which could give rise to any such
claims; nor is counsel aware of any failure of
compliance by the Company with applicable laws and
regulations relating to its affairs and activities.
(ix) A written agreement between the Company and Xxx Xxxxxx,
in form satisfactory to Buyer, providing for the services of
Xx. Xxxxxx as President and CEO of the Company, terminable by
either party on not less than 12 months written notice.
(b) The Buyer shall:
(i) Either deliver the Basic Consideration Shares to the
Sellers or as they shall direct, or shall, having passed the
necessary directors' resolution to issue the Basic
Consideration Shares, give an irrevocable direction to the
Buyer's Transfer Agents to issue the Basic Consideration
Shares to the Sellers or as they may direct. The Seller hereby
directs that 60,000 of the Basic Consideration Shares shall be
issued to Xxxxxx X. Xxxxxx, who shall have, as well, pro-rata
entitlement to such Additional Consideration Shares as may be
issued.
(ii) Nominate Xxxxxx X. Xxxxxx and Xxxxxx Xxxxxx as two of the
five directors proposed by management for election by the
shareholders at the meeting of shareholders of the Buyer to be
held in October, 1997.
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If closing shall not have occurred within two months of the date hereof, as the
result of failure of warranties or otherwise, either party may by written notice
to the other terminate this contract, and neither party shall have a claim
against the other in respect of such termination except for willful failure to
close or to meet the conditions for closing.
Warranties and representations
4. The Sellers warrant and represent to the Buyer in relation to the Company,
except where stated otherwise, effective as at the date thereof and as at the
date of closing.
(a) That the accounting and financial information disclosed to the
Buyer in writing is correct and comprehensive in all material respects
in its account of the financial affairs, assets and liabilities of the
Company and the Business.
(b) That there has been no material deterioration in the financial
position or prospects of the Company or the business since the making
of the disclosures referred to in (a) above.
(c) That all contracts, licenses and permits on which the Company
relies in the course of the Business or any part thereof are in full
force and effect and that there is no breach of any such contract
license or permit. No facilities of the type used in the Business have
been revoked or denied to the Company or granted on onerous terms.
(d) That the certificate of incorporation and by-laws of the Company,
as provided to the Buyer, are those currently in effect, and constitute
the totality of corporate documents governing the operation of the
Company; and without limitation, that there are no other agreements,
including agreements among shareholders or between shareholders and the
Company, which affect the governance of the company, relations among
shareholders, or relations between shareholders and the Company.
(e) That the Company is the owner of such rights as may exist in the
tradename "Ameristar Worldwide Entertainment", has not licensed the
right to use of this name or any part thereof to any other persons, and
that the Sellers are not aware of any infringing uses of said name.
(f) That the Company possess a proprietary database of approximately
9,000 current and/or former customers, and has not licensed or
otherwise agreed to the use of this database by any other person.
(g) That the Company maintains in force effective insurance cover
against all risks that are normally insured against in the fields of
the Business.
(h) That save as disclosed in writing the Company is not a party to any
litigation and that there are no claims made or threatened against the
Company and that the Company is not aware of any circumstances which
could give rise to any such claim.
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(i) That the opinion of counsel to the Company given pursuant to
clause 3(a) is correct in all respects.
(j) That the Company is in compliance with all applicable laws and
regulations relating to its affairs and activities and has made all
required returns in full accurate timely and compliant manner. No
penalties are payable in respect of any such return including tax
returns.
(k) That pending closing it will not:
(i) hold any meeting of shareholders or permit to be passed
any shareholders' resolution.
(ii) undertake any transaction not in the normal course of
business.
(iii) borrow or lend or give any guarantee or security.
(iv) hire or dismiss any employee without the consent of the
Buyer.
(v) make any distribution.
(vi) issue any shares.
but will operate its business as a going concern in all respects as
hitherto, except insofar as may have been consented to by the Buyer.
5. The Buyer warrants and represents to the Sellers
(a) It is in good standing in the State of Idaho and is current in its
filings with the Securities and Exchange Commission.
(b) The since the filing of its 10-QSB for its quarter ending March 31,
1997, there have been no material changes in the business assets or
affairs of the Buyer, except as disclosed in Form 8-K filed by the
Buyer on or about August 4, 1997 pertaining to the sale of its
concession in the Port of Ensenada, Mexico, and except as otherwise
disclosed in or pursuant to this agreement. Further, that Form 10-KSB
filed by the Buyer for its fiscal year ended June 30, 1996 and
subsequent Form 10-QSB's filed by the Buyer are accurate and complete
in all material respects.
(c) That other than as disclosed in the above filings, the Buyer is not
a party to litigation, is not aware of any claim, and is not aware of
circumstances which may give rise to any claim, which the directors of
the Buyer deem material to Buyer's financial position, save that the
Buyer is aware of a complaint filed in Florida by Andaurex
International Inc., but
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which has not been served on the Company, full details of which have
been disclosed to the Sellers.
(d) That the Buyer is in compliance with all applicable laws and
regulations insofar as they affect it assets and activities.
(e) That pending closing it will not make any distribution.
6. The Sellers agree that during a period of three (3) years from the date of
closing, they will not engage in the business of network marketing or the custom
provision of internet services within the United States, or to customers in the
United States, or otherwise compete with the Buyer or any of its subsidiaries in
regard to any business heretofore conducted by any of the Sellers.
7. This agreement shall inure to the benefit of, and shall be binding upon, the
parties and their subsidiaries, successors and assignees. The provisions of this
agreement, including without limitation the provisions of Section 6, above,
shall survive the Closing.
8. This agreement may be executed in separate counterparts, and when so executed
by all of the parties, will be valid as if all signatories had executed the same
document.
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IN WITNESS WHEREOF, this Agreement is executed by the parties as
specified
"BUYER"
International Resort
Developers, Inc.
By: s/Pieter X.X. Xxxxxxxxxx
Date: October 13, 1997
"SELLER"
Park Investments Limited
By: s/Xxxxx Xxxxxxxxxx
Date: October 13, 1997
