SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act
January 14, 2000
Date of Report
(Date of Earliest Event Reported)
ADVANCE TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Nevada 0-27175 95-4755369
(State or other (Commission File No.) (IRS Employer I.D. No.)
Jurisdiction)
304 South Elm Drive, Penthouse
Beverly Hills, CA 90212
(Address of Principal Executive Offices)
Registrant's Telephone Number
(310) 553-6776
Item 1. Changes in Control of Registrant.
(a) There were not any changes in the control pursuant to an
Agreement and Plan of Acquisition (the "Plan") dated
August 15, 1999 and deemed to have been closed as of September 27, 1999
between the Registrant and Seacrest Industries, Inc., a Nevada
corporation ("SII"). The Plan was adopted, ratified and approved by the
Board of Directors of the Registrant, and at a special meeting of the
shareholders held September 27, 1999 and adjourned.
(b) The source of the consideration used by SII and the SII Stockholders
to acquire their respective interests in the Registrant was the exchange
of 100% of the outstanding common stock of SII pursuant to the Plan.
Pursuant to the Plan, the Registrant was required:
1. To exchange 50,204,102 "unregistered" and "restricted" Non-voting
Preferred shares of the Registrant, in exchange for all of the
outstanding shares of common stock of SII.
2. The Following were directors and executive officers of the
Registrant. The designation and election, in seriatim, of Gary E. Ball,
Wendy Ball and Gary L. Bane, as directors and executive officers of the
Registrant, to serve until the next annual meeting of stockholders, and
until their respective successors are elected and qualified or until
their resignation or termination. These persons served in these same
capacities for SII prior to the completion of the Plan. Resumes of
these persons are included below under the caption "Management" of Item
2.
At a special meeting of shareholders held September 27,1999 the
SII Stockholders adopted, ratified and approved the Plan.
Taking into account the shares issued to the SII Stockholders, the
shares issued pursuant to the Plan were 50,204,102 outstanding shares of
preferred stock of the Registrant on the completion of the Plan.
A copy of the Plan, including any material exhibits and related
instruments, accompanies this Report, which, by this reference, is
incorporated herein; the foregoing summary is modified in its entirety
by such reference. See Item 7.
3. The following table contains information regarding
shareholdings of the Company's directors and executive officers and
those persons or entities who beneficially own more than 5% of the
Company's common and preferred stock, after taking into account the
completion of the Plan:
Advance Technologies Inc, 8K page 2
Amount and Nature Percent of Percent of
Of Beneficial Preferred Common
Name Title Ownership Class Class
- ------------- ---------- ----------------- ---------- ----------
Gary E. Ball President and 9,240,000 0.184 -0-
Director
Gary L. Bane Vice President 364,000 0.01 -0-
And Director
Wendy Ball Secretary and 9,240,000 0.184 -0-
Director
Item 2. Acquisition or Disposition of Assets.
(a) See Item 1 of this Report. The consideration exchanged under
the Plan was negotiated between the directors and executive officers of
the Registrant, the Board of Directors of SII (the board of directors of
the Registrant, are the same board of directors as that of SII) and the
SII Stockholders, and the Board of Directors of the Registrant used
criteria used in similar proposals involving the Registrant in the past,
including the relative value of the assets of the Registrant; its
present and past business operations; future potential of SII; its
management; and the potential benefit to the stockholders of the
Registrant. The members of the Board of Directors determined in their
good faith that the consideration for the exchange was reasonable, under
these circumstances.
Directors, executive officers or persons who may be deemed to be
an affiliate of the Registrant all had a direct or indirect interest in
SII prior to the completion of the Plan.
(b) The Registrant intends to continue the business operations
conducted by SII, which are described below under the caption Business.
Also see the financial statements of SII accompanying this Report, which
are described in Item 7, for a description of any assets of SII and a
description of its facilities.
Business
The Registrant through its wholly owned subsidiary SII, and
through its president and director Mr. Gary Ball was granted an
exclusive world-wide license agreement for the use of US patent number
5,534,694 by Hughes Aircraft Company, for a key optical element of the
Infrared Aircraft Landing System. Gary Ball founder and CEO of Infrared
Systems International (ISI) a/k/a Seacrest Industries International,
Inc. in 1992 formed the company for the singular purpose of providing
manufacturing and sales support for the unique Infrared System called
Enhanced Vision System (EVS). While employed by Electro-Optical
Systems, a segment of Hughes Aircraft Company, as senior Program Manager
and engineer, he led the research and development team responsible for
the development of the Enhanced Vision System (EVS). This technology
was designed to allow aircraft pilots to actually "see" the airport
environment through cloud ceiling or surface fog. The factor of
enhanced safety, alone, is generating an enormous demand for this type
of system, which, in the future, could become part of the Minimum
Advance Technologies, Inc. 8-K page 3
Equipment List (MEL) required for commercial aircraft carrying more than
a designated number of passengers (FAA Part-91, -121, & -135 markets).
Millions of dollars have been expended in the development of this
technology by many major Corporations.
Management
Names Title and Position Age
- -------------- -------------------- -----
Gary E. Ball President and Director 62
Gary L. Bane Director 62
Wendy Ball Director 53
GARY E. BALL Age 62, residing in Beverly Hills, California is married.
He attended California State University at Long Beach graduating in 1967
BSEE and MSEE, went on to perform Graduate Studies at University of
Southern California. He has specialized in product design, development,
and management for North American Aviation, Autonetics Division.
Technical Manager in charge of the Pave Track program for Ford
Aerospace. Program Manager for Northrop Electro-Mechanical in charge of
business development on several classified DOD programs, including the
AMRAAM effort. Program Manager for Hughes Aircraft where he developed
the Infrared Enhanced Vision System, reporting to the President of
EDSG as directed by General Motors and directed all non-core business.
He is a member of NATO NIAG study group on Aircraft Integration. He has
authored several articles for trade publications, the last 4 years he
has provided consulting services to 10 U.S. and foreign corporations in
the field of IR technology.
GARY L. BANE Age 62, residing in Santa Barbara, California is married.
He attended University of Southern California attaining BS Mechanical
and Aeronautical (1960) MS Control Systems and Instrumentation (1966) MS
Systems Management (1968). University of California, Los Angeles
studying Deep Submergence Vehicle, Oceanography and Offshore Systems
Engineering. Stanford University Executive Institute of Management of
High Technology Companies. Mr. Bane is a specialist in the development
and management of Deep Ocean and offshore technology projects. He
recently retired from Rockwell after 30 years as director of Ocean
Systems. While at Rockwell he successfully managed significant
technical solutions and advanced state-of-the-art programs for a number
of classified programs. He was General Manager of Interstate
Electronics; Oceanic Division where he was responsible for profit and
loss and R and D for offshore oil drilling and recovery projects.
WENDY BALL Age 53, residing in Beverly Hills, California is married.
She graduated from University of Southern California, BS cum Laude. Her
career has been focused on retail merchandising, where she has
demonstrated exceptional skills in management, team building and
communications. She was a key employee at Neiman Marcus Beverly Hills
where she increased sales 400% in the Christian Lacroix Boutique and was
a key buyer in New York. She was an account executive for Carolee
Jewelry for Southern California, Arizona and Utah increasing sales 84%.
She was co-owner Brava Specialty Clothing Store in Redondo Beach,
California.
Advance Technologies, Inc. 8-K page 4
Item 3. Bankruptcy or Receivership.
None; not applicable.
Item 4. Changes in Registrant's Certifying Accountant.
None; not applicable.
Item 5. Other Events.
See Item 1.
Item 6. Resignations of Directors and Executive Officers.
None; not applicable
Item 7. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired.
Audited Financial Statements of Seacrest Industries, Inc.
for the period ended September 30, 1999.
Accountant's Report
Balance Sheet
Statement of Earnings (Deficit) and Retained Deficit
Statement of Shareholders' Equity
Statement of Cash Flows
Notes to Financial Statements
(b) Exhibits.
Exhibit
Number
Description of Exhibit*
Agreement and Plan of Reorganization 2
Documents Incorporated by Reference*
Form 10 S-B*
* Summaries of any exhibit are modified in their entirety
by this reference to each exhibit
Advance Technoliges, Inc. 8-K page 5
Item 8 Change in Fiscal Year.
None; not applicable.
Item 9. Sales of Equity Securities pursuant to Regulation S.
None; not applicable
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this Report to be signed on its
behalf by the undersigned hereunto duly authorized.
ADVANCE TECHNOLOGIES, INC
Date: 01/14/2000 By /S/ Gary E. Ball
President and Director
Advance Technoligies, Inc. 8-K page 6
<PAGE>
Advance Technologies, Inc.
(a Development Stage Company)
Consolidated Financial Statements
September 30, 1999
C O N T E N T S
Independent Auditor's Report 2
Consolidated Balance Sheets 3
Consolidated Statements of Operations 4
Consolidated Statements of Stockholders' Equity 5
Consolidated Statements of Cash Flows 6
Notes to the Consolidated Financial Statements 7
Advance Technologies, Inc. 8-K page 1
(Consolidated Financial Statements)
[LETTERHEAD CROUCH, BIERWOLF & CHISHOLM]
---------------------------------------
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors and Stockholders of
Advance Technologies, Inc.
We have audited the accompanying consolidated balance sheet of Advance
Technologies, Inc. (a Development Stage Company) as of September 30,
1999 and the related statements of operations, stockholders' equity and
cash flows for the years ended September 30, 1999 and 1998 and from
inception on October 1, 1985 though September 30, 1999. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements
based on our audits. The financial statements for the period October 1,
1985 through September 30, 1995 were audited by other accountants, who
expressed an unqualified opinion on their report dated February 12,
1996.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits
to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe
that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of
Advance Technologies, Inc. (a Development Stage Company) as of
September 30, 1999 and the results of its operations and cash flows for
the years ended September 30, 1999 and 1998 and from inception on
October 1, 1985 through September 30, 1999 in conformity with generally
accepted accounting principles.
/s/ crouch, Bierwolf & Chisholm
Salt Lake City, Utah
January 12, 2000
Advance Technologies, Inc. 8-K page 2
(Consolidated Financial Statements)
<PAGE>
Advance Technologies, Inc.
(a Development Stage Company)
Consolidated Balance Sheets
Assets
September 30,
1999
------------------
Current assets
Cash $ 555
Prepaid License (Note 4) 25,000
Prepaid Auto Lease 2,180
----------------
Total Assets $27,735
Liabilities and Stockholders' Equity
Current Liabilities
Accounts Payable $ 1,218
Accounts Payable-Officer 4,846
Note Payable-Officer (Note 7) 48,000
Advance Royalties (Note 5) 25,000
----------------
Total Current Liabilities 79,064
----------------
Stockholders' Equity
Common Stock, authorized
100,000,000 shares of $.001 par value,
issued and outstanding 2,572,923 shares 2,573
Preferred Stock, Series A authorized
100,000,000 shares of $.001 par value,
issued and outstanding 50,204,102 shares 50,204
Additional Paid in Capital 446,496
Deficit Accumulated During the
Development Stage (550,602)
------------------
Total Stockholders' Equity (51,329)
-----------------
Total Liabilities and Stockholders? Equity $ 27,735
------------------
The accompanying notes are an integral part of these financial stattements
Advance Technologies, Inc. 8-K page 3
(Consolidated Financial Statements)
<PAGE>
Advance Technologies, Inc.
(a Development Stage Company)
Consolidated Statements of Operations
Cumulative
For the Total since
years ended inception of
September 30, development
1999 1998 stage
--------- --------- -----------
Revenues: $ - $ - $ -
Expenses:
Organization Costs 11,331 - 11,331
General and administrative 78,795 449 478,570
--------- --------- -----------
Total Expenses 91,126 449 489,901
--------- --------- -----------
Net (Loss) $ (90,126) $ (449) (489,901)
--------- --------- -----------
Net Loss Per Share $ (0.068) $ (0.000) (3.09)
--------- --------- -----------
Weighted average
shares outstanding 1,322,924 72,923 158,407
--------- --------- ------------
The accompanying notes are an integral part of these financial statements
Advance Technologies, Inc. 8-K page 4
(Consolidated Financial Statements)
<PAGE>
Advance Technologies, Inc.
(a Development Stage Company)
Consolidated Statement of Stockholders' Equity
Deficit
Accumulated
Additional During the
Common Stock paid-in Preferred Stock Development
Shares Amount capital Shares Amount Stage
-------- ------- -------- --------- -------- --------
Balance,
October 1, 1985
(beginning of the
development stage) 6,487 $ 7 $ 58,161 $ - $ - $(60,701)
Shares issued
For coal
royalties at $0.01 4,369 4 1,525 - - -
Shares issued for
services at $0.25 554 1 4,849 - - -
Shares issued for
services at $0.03 1,601 2 1,680 - - -
Shares issued for
services at $0.25 1,274 1 11,145 - - -
Shares issued for
services at $0.01 2,290 2 798 - - -
Shares issued for
services at $0.25 37,203 37 325,487 - - -
Preferred shares
issued for
services - - - 10,048 1,004 -
Expiration of
preferred shares - - 1,004 (10,048) (1,004) -
Net loss since the
beginning of the
development stage
at October 1, 1985 - - - - - (344,001)
-------- ------- -------- --------- -------- --------
Balance,
September 30, 1995 53,778 54 404,649 - - (404,702)
Shares issued for
services at $0.25 5,714 6 49,994 - - -
Fractional shares
Adjustment (6) (1) - - - -
Net loss for the
year ended
September 30, 1996 - - - - - (50,000)
-------- ------- -------- --------- -------- --------
Balance
September 30, 1996 59,486 59 454,643 - - (454,702)
-------- ------- -------- --------- -------- --------
Shares issued for
services at $0.25 609 1 5,324 - - -
Net loss for the
year ended
September 30, 1997 - - - - - (5,325)
-------- ------- -------- --------- -------- --------
Balance
September 30, 1997 60,095 60 459,967 - - (460,027)
Shares issued for
services at $0.001 12,828 13 436 - - -
Net loss for the
year ended
September 30, 1998 - - - - - (449)
-------- ------- -------- --------- -------- --------
Balance
September 30, 1998 72,923 73 460,403 - - (460,476)
Shares issued for
cash at $0.01 2,500,000 2,500 22,500 - - -
Shares issued for
common stock of
SeaCrest
Industries
Corporation
at $0.001 - - (36,407) 50,204,102 50,204 -
Net loss for the
year ended
September 30, 1999 - - - - - (90,126)
-------- ------- -------- --------- -------- --------
Balance
September
30, 1999 2,572,923 $2,573 $446,496 $50,204,102 $50,204 $550,602)
The accompanying notes are an integral part of these financial statements
Advance Technologies, Inc. 8-K page 5
(Consolidated Fiancial Statements)
<PAGE>
Advance Technologies, Inc.
(a Development Stage Company)
Consolidated Statement of Cash Flows
October 1,
(inception of
For the development
year ended stage) to
September 30, September 30,
1999 1998 1999
----------- ---------- -------------
Cash Flows from Operating
Activities
Net loss $ (90,126) $ (449) $ (489,901)
Adjustments to reconcile
net loss to net cash
provided by operations:
Increase in Accounts Payable 6,064 - 6,064
Stock issued for services - 449 399,775
Organization Costs 11,331 - 11,331
----------- ---------- -------------
Net cash flows provided
(used) by operating
activities (72,731) - (72,731)
----------- ---------- -------------
Cash Flows from Investment
Activities:
Investment in Subsidiary 286 - 286
----------- ---------- -------------
Cash Flows from Financing
Activities:
Cash paid on officer loan (12,000) - (12,000)
Proceeds from loan from officer 60,000 - 60,000
Net proceeds from
issuance of stock 25,000 - 25,000
----------- ---------- -------------
Net cash flows provided
(used) by operating activities 73,,000 - 73,000
----------- ---------- -------------
Net increase (decrease) in cash 555 - 555
Cash, beginning of year - - -
----------- ---------- -------------
Cash, end of year $ 555 $ - $ 555
----------- ---------- -------------
The accompanying notes are an integral part of these financial statements
Advance Technologies, Inc. 8-K page 6
(Consolidated Fiancials Statements)
<PAGE>
Advance Technologies, Inc.
(a Development Stage Company)
Notes to the Consolidated Financial Statements
September 30, 1999
NOTE 1 - Summary of Significant Accounting Policies
a. Organization
The Company was organized under the laws of the state of Delaware on
June 16, 1969 as PWB Industries, Inc. On November 10, 1975, the Company
changed its name to Sun Energy, Inc. At that time the Company began
operations in the oil and gas lease industry. By 1985 the Company
discontinued its operations and became dormant. On March 6, 1996 the
Company attempted a merger that eventually failed. On August 23, 1997
the Company changed its name to Advance Technologies, Inc. and moved its
state of domicile to the state of Nevada.
On September 27, 1999 pursuant to a plan of acquisition, the
Company exchanged 50,204,102 shares of its Series "A" preferred stock
for SeaCrest Industries Corporation?s 50,204,102 shares of common stock.
This acquisition has been accounted for using the purchase method of a
business combination.
b. Accounting Method
The Company recognizes income and expense on the accrual basis of
accounting.
c. Consolidation
The consolidated financial statements include the accounts of
Advanced Techologies, Inc. and SeaCrest Industries Corporation, a wholly
owned subsidiary. Intercompany transactions have been eliminated.
d. Earnings (Loss) Per Share
The computation of earnings per share of common stock is based on
the weighted average number of shares outstanding at the date of the
financial statements.
e. Cash and Cash Equivalents
The Company considers all highly liquid investments with maturities
of three months or less to be cash equivalents.
f. Provision for Income Taxes
No provision for income taxes has been recorded due to net
operating loss carryforwards totaling approximately $(550,602) that
will be offset against future taxable income. These NOL carryforwards
begin to expire in the year 2004 No tax benefit has been reported in the
financial statements because the Company believes there is a 50% or
greater chance the carryforward will expire unused.
Deferred tax assets and the valuation account is as follows:
September 30,
1999
-----------------
Deferred tax asset:
NOL carrryforward $ 189,360
Valuation allowance (189,360)
-----------------
Total $ -
-----------------
Advance Technologies, Inc. 8-K page 7
(Consolidated Financial Statements)
Advance Technologies, Inc.
(a Development Stage Company)
Notes to the Consolidated Financial Statements
September 30, 1999
NOTE 2 - Going Concern
The accompanying financial statements have been prepared assuming
that the Company will continue as a going concern. The Company has few
assets and has had recurring operating losses and is dependent upon
financing to continue operations. The financial statements do not
include any adjustments that might result from the outcome of this
uncertainty. It is management's plan to find an operating company to
merge with, thus creating necessary operating revenue.
NOTE 3 - Development Stage Company
The Company is a development stage company as defined in Financial
Accounting Standards Board Statement No. 7. It is concentrating
substantially all of its efforts in raising capital and developing its
business operations in order to generate significant revenues.
NOTE 4 - Prepaid License Agreement
SeaCrest Industries Corporation, formerly Infrared Systems
International, Inc., entered into a licensing agreement with Hughes
Aircraft Company for an infrared landing aid system. Hughes Aircraft
Company was paid $25,000 on October 25, 1995 upon commencement of the
agreement. There is also a $1,000 royalty payment due to Hughes
Aircraft Company for each unit sold. The first twenty units sold,
$20,000, will be deducted from the original $25,000 deposit. This
royalty agreement will be renegotiated on October 25, 2000.
NOTE 5 - Advanced Royalties
SeaCrest Industries Corporation, formerly Infrared Systems
International, Inc., entered into a licensing agreement for marketing
and distributing of infrared aircraft landing systems. Seacrest
received $25,000 in advances.
NOTE 6 - Stock Transactions
On December 2, 1998 and August 23, 1997, the Company's board of
directors authorized a reverse stock split, 1 share for 35 shares and 1
share for 10 shares, respectively. The financial statements have been
retroactively restated to show the effects of the reverse stock split.
Advance Technologies, Inc. 8-K page 8
(Consolidated Fiancial Statements)
Advance Technologies, Inc.
(a Development Stage Company)
Notes to the Consolidated Financial Statements
September 30, 1999
NOTE 7 - Related Party Transactions
Since the Company does not have the necessary operating revenue to
sustain operations, stock has been issued for service. Some of the
parties receiving stock are related parties, including officers of the
Company.
During 1999, an officer of the Company advanced $60,000 to cover
expenses. $12,000 was subsequently paid back leaving a note payable of
$48,000 at September 30, 1999. The note payable-officer is considered a
current liability with no provisions for interest.
During 1999, the officers of the Company paid their own travel
expenses. The amount payable to the officers at September 30, 1999 is
$4,846.
Advance Technologies, Inc. 8-K page 9
(Consolidated Financial Statements)
<PAGE>
AGREEMENT AND PLAN OF ACQUISITION
This Agreement and Plan of Acquisition [herein, together with all
Exhibits, ["Agreement"] is entered into as of August 15, 1999 by and
between Advance Technologies, Inc., [a Nevada Corporation] and Seacrest
Industries Corporation [a Nevada Corporation].
This Agreement sets forth the terms and conditions upon which Seacrest
Industries Corporation will be acquired by Advance Technologies [the
"Acquisition"] pursuant to this Agreement and Plan of Acquisition [the
"Acquisition Agreement"] in substantially the form herein, and which
provides, among other things, for the conversion and exchange of all
outstanding shares, (other than shares held by shareholders who exercise
statutory dissenter rights) 50,204,102 shares of $0.001 par value common
stock of Seacrest, for series "A" preferred shares of Advance
Technologies .
In consideration of the mutual promises and covenants contained herein,
Advance Technologies and Seacrest agree as follows:
ARTICLE 1
Definitions
As used in this Agreement, the following terms (whether used in singular
or plural forms) shall have the following meanings:
["Contract"] means any written contract, mortgage, deed of trust, bond,
indenture, lease, license, note, franchise, certificate, option,
warrant, right, or other instrument, document or agreement, and any oral
obligation, right or agreement.
["GAAP"] means generally accepted accounting principles, as the American
Institute of Certified Public Accountants defines that term under the
first standard of reporting under its generally accepted accounting
standards.
["Knowledge"] of Advance Technologies of or with respect to any matter
means that any of the executive officers, directors or senior managers
of Advance Technologies has, or after due inquiry and investigation
would have, actual awareness or knowledge of such matter, and knowledge
of Seacrest or with respect to any matter means that any of the
executive officers, directors or senior managers of Seacrest has, or
after due inquiry and investigation would have, actual awareness or
knowledge of such matter.
["Legal Requirements"] means applicable common law and any statute,
ordinance, code or other law, rule, regulation, order, technical or
other standard, requirement, judgment, or procedure enacted, adopted,
promulgated, applied or followed by any governmental authority including
judgments.
["Lien"] means any security agreement, financing statement filed with
any governmental authority, conditional sales statement filed with any
governmental authority, conditional sale or other title retention
agreement, any lease, consignment or bailment given for purposes of
security, any lien, mortgage, indenture, Pledge, option, encumbrance,
adverse interests, constructive trust or other trust, claim, attachment,
exception to or defect in title or other ownership interest [including
but not limited to reservations, rights of entry, possibilities of
reverted, encroachments, easement, rights-of-way, restrictive covenants
leases and licenses] of any kind, which otherwise constitutes an
Advance Technologies, Inc. 8-K page 1
(Agreement and Plan of Acquisition)
interest in or claim against property, whether arising pursuant to any
Legal Requirement, Contract or otherwise.
ARTICLE 2
Acquisition
Section 2.1 Acquisition. Subject to the terms and conditions contained
in this agreement, Seacrest will be acquired by Advance Technologies,
Inc. pursuant to the Acquisition agreement at a closing at the effective
time of the Acquisition as defined in the Acquisition agreement. In the
Acquisition, the shares of Seacrest common stock outstanding immediately
prior to the effective time of the Acquisition (excluding shares as to
which statutory dissenters' rights have been exercised) will be
converted into and exchanged for 50,204,102 shares of Advance
Technologies Corp. class "A" preferred Stock, subject to adjustments.
Section 2.2 Authorized Capital. Advance Technologies Corp. shall have
authorized capital of 100,000,000 common shares, at $0.001 par value.
Section 2.3 Name. The name of the surviving corporation (Advance
Technologies, Inc.) shall be Advance Technologies, Inc.
Section 2.4 Directors. Three new directors shall be appointed at the
Special Board of Directors Meeting held at closing of the Acquisition.
Section 2.5 Mechanics for Closing Acquisition. Upon the approval of
the respective board of directors, the Articles of Acquisition will be
executed.
Section 2.6 Further Assurances. At or after closing, Advance
Technologies, at the request of Seacrest, shall promptly execute and
deliver, or cause to be executed and delivered, to Seacrest all such
documents and instruments, in form and substance satisfactory to
Seacrest, as Seacrest reasonably may request in order to carry out or
evidence the terms of this agreement.
ARTICLE 3
Representations and Warranties of Seacrest
Seacrest represents and warrants to Advance Technologies, as of the date
of this Agreement and as of Closing, as follows:
Section 3.1 Organization and Qualification of Seacrest. Seacrest is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Nevada, and has all requisite corporate power
to conduct its activities as such activities are currently conducted.
Section 3.2 Authority. Seacrest has all requisite corporate power and
authority to execute, deliver and perform this Agreement. The execution,
delivery and performance of this Agreement by Seacrest have been duly
and validly authorized by all necessary action on the part of Seacrest.
This Agreement has been duly and validly executed and delivered by
Seacrest, and is a valid and binding obligation of Seacrest, enforceable
against Seacrest in accordance with its terms.
Section 3.3 Ownership and Number of Shares of Seacrest Common Stock.
The shareholders set forth on Exhibit 3.3, own the Seacrest Common Stock
shown thereon, beneficially and of record, free and clear of all liens.
The Seacrest Common Stock is not subject to, or bound or affected by,
any proxies, voting agreements, or other restrictions on the incidents
of ownership hereof. There are not, and will not at closing be more than
Advance Technologies, Inc. 8-K page 2
(Agreement and Plan of Acquisition)
50,204,102 shares issued and outstanding of Seacrest Common Stock.
Section 3.4 Subsidiaries. Seacrest does not control or hold direct or
indirect equity interests in, or holds rights to control or acquire
direct or indirect equity interests in, any corporation.
Section 3.5 Capitalization of Seacrest. The authorized capital stock
of Seacrest consists of 75,000,000 duly authorized shares of common
stock no par value, of which 50,204,102 shares are validly issued and
outstanding, fully paid and non-assessable. In addition, there are no
preferred shares issued and outstanding. There are no authorized or
outstanding subscriptions, options, convertible securities, warrants,
calls or other rights of any kind issued or granted by or binding upon,
Seacrest to purchase or otherwise acquire any securities of or equity
interest in Seacrest.
Section 3.6 No Conflicts: Required Consents. The execution, delivery and
performance by Seacrest of this Agreement will not; (i) conflict with
or violate any provision of the articles or certificate of incorporation
or bylaws of Seacrest; (ii) violate any Legal Requirements; (iii) result
in the creation or imposition of any Lien against or upon the Seacrest
Common Stock or any of the assets or properties owned or leased by
Seacrest; or (iv) require any consent, approval, or authorization of, or
filing of any certificate, notice, application, report or other document
with, any governmental authority or other person.
Section 3.7 Litigation. There is no litigation pending or, to
Seacrest's knowledge, threatened by or before any governmental authority
or private arbitration tribunal, against Seacrest or it operations, nor,
to Seacrest's knowledge, is there any basis for any such litigation
except as set forth in the financial statements dated August 30,1997.
Section 3.8 Compliance with Applicable Legal Requirements. Conduct by
Seacrest of its activities as currently conducted does not violate or
infringe any Legal Requirements currently in effect, or, to the
knowledge of Seacrest, proposed to become effective, and Seacrest has
received no notice of any violation by Seacrest of any Legal
Requirements applicable to Seacrest or its activities as currently
conducted; and Seacrest knows of no basis for the allegation of any such
violation except as set forth in the financial statements dated August
30, 1999.
Section 3.9 Financial Statements. Seacrest has delivered to Advance
Technologies Corp. the audited financial statements of Seacrest as of
August 30,1999.
Section 3.10 Liabilities. Seacrest has no liabilities or obligations.
Whether absolute, accrued, contingent or otherwise, that are not
reflected in the Balance Sheet, or non-delinquent obligations for
ordinary and recurring expenses. Including in the ordinary course of
business of Seacrest since the date of the Balance Sheet.
Section 3.11 Tax Returns and Payments. Seacrest has filed all federal,
state, local and foreign tax returns required to be filed, and has
timely paid all taxes that have become due and payable, whether or not
so shown on any such tax returns. Seacrest has not received any notice
of, nor does Seacrest have any knowledge of, any deficiency or
assessment of, proposed deficiency or assessment from any taxing
governmental authority. There are no tax audits pending with respect to
Seacrest that extend the statutory period of limitations applicable to
Advance Technologies, Inc. 8-K page 3
(Agreement and Plan of Acquisition)
any federal, state, local, or foreign tax returns for any period.
Section 3.12 Absence of Certain Changes or Events. Since the date of
the Balance Sheet there has not occurred:
(a) Any material and adverse change in the financial condition
or operations of Seacrest;
(b) Any damage, destruction or loss to or of any of the material
assets or properties owned or leased by Seacrest;
(c) The creation or attachment of any Lien against the Common
Stock of Seacrest;
(d) Any waiver, release, discharge, transfer, or cancellation by
Seacrest of rights or claims of material value;
(e) Any issuance by Seacrest of any securities, or any
Acquisition or consolidation of Seacrest with any other person, or any
acquisition by Seacrest of the business of any other person except as
reflected in Section 3.3 above.
(f) Any incurrence, assumption or guarantee by Seacrest of any
indebtedness or liability;
(g) Any declaration, setting aside or payment by Seacrest of any
dividends on, or any other distribution with respect to, any capital
stock of Seacrest or any repurchase, redemption, or other acquisition of
any capital stock of Seacrest except as reflected in Section 3.3. Above.
(h) [A] any payment of any bonus, profit sharing, pension or
similar payment or arrangement or special compensation to any employee
of Seacrest, except in the ordinary course of the administration of
Seacrest, or
[B] Any increase in the compensation payable or to become
payable to any employee of
Seacrest; or
[C] The entry by Seacrest into any Contract to do any of the
foregoing.
Section 3.13 Material Seacrest Contracts. As of the date of this Plan
of Acquisition, Seacrest does not have (i) contracts evidencing or
relating to any liabilities or obligations of Seacrest, whether
absolute, accrued, contingent or otherwise, or granting any Person a
Lien against any properties or assets owned or leased by Seacrest; (ii)
joint venture or partnership Contracts between Seacrest and any other
person; (iii) contracts limiting the freedom of Seacrest to engage in or
to compete in any activity, or to use or disclose any information in its
possession; and (iv) any other contracts to which Seacrest is a party or
by which it or the assets or properties owned or leased by it are bound
or affected that are not set forth, which in the aggregate contemplate
payments to or by Seacrest exceeding $50,000 in any twelve-month period
[collectively herein as the "Material Seacrest Contract"]. Seacrest has
delivered to Advance Technologies true and complete copies of each of
the material Seacrest contracts, including any amendments thereto or, in
the case of oral material Seacrest contracts is valid, in full force and
effect and enforceable in accordance with its terms against the parties
thereto other than Seacrest, and Seacrest has fulfilled when due, or has
taken all action necessary to enable it to fulfill when due, all of its
Advance Technologies, Inc. 8-K page 4
(Agreement and Plan of Acquisition)
obligations thereunder; (v) there has not occurred any default [without
regard to lapse of time, the giving of notice, or the election of
Seacrest, or any combination thereof] by any other person, under any of
the material Seacrest contracts; (vi) neither Seacrest nor, to the
knowledge of Seacrest, any other person is in arrears in the performance
or satisfaction of its obligations under any of the material Seacrest
contracts, and no waiver has been granted by any of the parties thereto.
Section 3.14 Real Property. As of the date of this Plan of
Acquisition, Seacrest does not own any real property other than
described in the financial statements dated August 30, 1999.
Section 3.15 Employees. As of the date of this Plan of Acquisition,
Seacrest has 2 employees.
Section 3.16 Books and Records. All of the books, records and accounts
of Seacrest are in all material respects true and complete, are
maintained in accordance with good business practice and all applicable
legal requirements, accurately present and reflect in all material
respects all of the transactions therein described, and are reflected
accurately in the financial statements. Seacrest has previously
delivered to Advance Technologies the complete stock record book of
Seacrest, and true and complete copies of all of the minutes of
meetings, and all other corporate actions of the stockholders, board of
directors and committees of the board of directors of Seacrest since the
date of its incorporation.
Section 3.17 Certain Interests. None of Seacrest or its officers,
directors, or holders of 10% or more of Advance Technologies common
stock, directly or indirectly is, or owns any interest in, or controls,
or is an employee, officer, director or partner of or participant in, or
consultant to, any person which is a competitor, supplier or customer of
Advance Technologies.
Section 3.18 Bank Accounts. Exhibit 3.18 sets forth all bank accounts,
brokerage accounts, and safe deposit boxes of any kind maintained by
Seacrest and, in each case, identifies the persons that are authorized
signatories for, or which are authorized to have access to, each of
them.
Section 3.19 Changes in Circumstances. Seacrest has no knowledge of
(i) any current or future condition or state of facts or circumstances
which could reasonably be expected to result in a material and adverse
change in the financial condition of operations of Seacrest, or (ii) any
Legal Requirements from which Seacrest would be exempt by reason of any
"grandfather" clauses or provisions contained therein, but which would
be applicable to Advance Technologies following Closing.
Section 3.20 Accuracy of Information. None of the written information
and documents which have been or will be furnished by Seacrest or any
representatives of Seacrest to Advance Technologies or any of the
representatives of Advance Technologies, in connection with the
transactions contemplated by this Agreement contains or will contain, as
the case may be, any untrue statement of a material fact or omits or
will omit to state a material fact necessary in order to make the
statements therein not misleading in light of the circumstances in which
made. To the knowledge of Seacrest, Seacrest has disclosed to Advance
Technologies as the purchaser of Seacrest Common Stock all material
information relating to Seacrest and its activities as currently
conducted.
Advance Technologies, Inc. 8-K page 5
(Agreement and Plan of Acquisition)
Section 3.21 Investment. Seacrest is acquiring Advance Technologies
Common Stock for investment purposes, and not with a view to
distribution or resale thereof in violation of applicable securities
Legal Requirements.
ARTICLE 4
Representations and Warranties of Advance Technologies Corp.
Advance Technologies represents and warrants to Seacrest, as of the date
of this agreement and as of closing, as follows:
Section 4.1 Organization and Qualification of Advance Technologies, Inc.
Advance Technologies is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Nevada, and has all
requisite corporate power and authority to own and lease the properties
and assets it currently owns and leases and to conduct its activities as
currently conducted. Advance Technologies is duly qualified to do
business as a foreign corporation in which the ownership or leasing of
the properties and assets owned or leased by it or the nature of its
activities makes such qualification necessary.
Section 4.2 Authority. Advance Technologies has all requisite
corporate power and authority to execute, deliver and perform this
Agreement. The execution, delivery, and performance of this agreement by
Advance Technologies has been duly and validly executed and delivered by
Advance Technologies and is the valid and binding obligation of Advance
Technologies, enforceable against Advance Technologies in accordance
with its terms.
Section 4.3 No Conflicts: Required Consents. The execution, delivery
and performance by Advance Technologies of this Agreement does not and
will not: (i) conflict with or violate any provisions of the articles or
certificate of incorporation or bylaws of Advance Technologies; (ii)
violate any provision of any Legal Requirements; or (iii) conflict with,
violate, result in a breach of, constitute a default under (without
regard to requirements of notice, lapse of time, or elections of other
persons, or any combination thereof) or accelerate or permit the
acceleration of the performance required by, any Contract or Lien to
which Advance Technologies is a party or by which Advance Technologies
or the assets or properties owned or leased by it are bound or affected,
or (iv) require any consent, approval or authorization, report or other
document with, any Governments Authority or other person.
Section 4.4 Validity and Ownership of Advance Technologies, Inc.
Preferred Stock. The Advance Technologies preferred stock received by
the shareholders of Seacrest at closing will be validly issued and
outstanding, fully paid and non-assessable. The Advance Technologies
preferred stock will not be subject to, nor bound or affected by, any
proxies, or other restrictions on the ownership thereof.
ARTICLE 5
Covenants of Seacrest and Advance Technologies Corp.
Section 5.1 Affirmative Covenants of Seacrest. Except as Advance
Technologies may otherwise consent in writing, between the date of the
agreement and closing, Seacrest shall:
(a) Conduct its business only in the usual, regular, and
ordinary course, and in accordance with past practices;
Advance Technologies, Inc. 8-K page 6
(Agreement and Plan of Acquisiton)
(b) [1] duly comply with all applicable Legal Requirements; [2]
perform all of its obligations under all Seacrest Contracts without
default, and [3] maintain its books, records, and accounts on a basis
consistent with past practices;
(c) [l] give Advance Technologies and its counsel, accountants
and other representatives reasonable access during normal business hours
to the premises of Seacrest, all of the assets and properties owned or
leased by Seacrest, Advance Technologies books and records, and
Seacrest's personnel; [2] furnish to Advance Technologies and such
representatives all such additional documents [certified by an officer
of Seacrest, if requested], financial information and other information
as Advance Technologies may from time to time reasonably request; and
[3] cause Seacrest's accountants to permit Advance Technologies and its
accountants to examine the records and working papers pertaining to
Seacrest's financial statements' provided that no investigation by
Advance Technologies or it representatives will affect or limit the
scope of any of the representations and warranties of Seacrest herein or
in any Exhibit or other related document;
(d) Use it best efforts to obtain in writing as promptly as
possible all approvals and consents required to be obtained by Seacrest
in order to consummate the transactions contemplated hereby and deliver
to Advance Technologies copies, satisfactory in form and substance to
Advance Technologies, or such approvals and consents;
(e) Promptly deliver to Advance Technologies, true and complete
copies of all monthly and quarterly financial statements of Seacrest and
any reports with respect to the activities of Seacrest which are
prepared by or for Seacrest at any time from the date hereof until
closing; and
(f) Promptly notify Advance Technologies of any circumstance,
event or action, by Seacrest or otherwise, [1] which, if known at the
date of this agreement, would have been required to be disclosed in or
pursuant to this Agreement, or [2] the existence, occurrence or taking
of which would result in any of the representations and warranties of
Seacrest in this agreement or in any transaction document not being true
and correct in all material respects.
Section 5.2 Negative Covenants of Seacrest. Except as Advance
Technologies may otherwise consent in writing, between the date of this
agreement and closing, Seacrest shall not:
(a) Change the character of its business;
(b) Incur any liability or obligation or enter into any contract
except, in each case, in the ordinary course of business consistent with
prior practices and not prohibited by any other provision hereof;
(c) Incur, assume or guarantee any indebtedness or liability in
respect of borrowed money;
(d) Make any capital expenditure or commitment for capital
expenditure;
(e) Modify, terminate, or abrogate any material Seacrest
contract other than in the ordinary course of business, or waive, lease,
discharge, transfer or cancel any rights or claims of material value;
Advance Technologies, Inc. 8-K page 7
(Agreement and Plan of Acquisition)
(f) Create or permit the creation or attachment of any lien
against any of the assets or properties owned or leased by it;
(g) Except as otherwise required by this agreement, prepay any
material liabilities or obligations;
(h) Issue any securities, or merge or consolidate with any other
person, or acquire any of the securities, partnership or joint venture
interests, or business of any other person;
(i) Declare, set aside or pay any dividends on, or make any
other distribution with respect to, any of its capital stock, or
repurchase, redeem or otherwise acquire any of its capital stock; and
(j) Enter into any transaction or permit the taking of any
action that would result in any of the representations and warranties in
this agreement not being true and correct in all material respects at
closing.
Section 5.3 Covenants of Advance Technologies, Inc. Except as Seacrest
may otherwise agree in writing, between the date of the agreement and
closing, Advance Technologies shall:
(a) Use its best efforts to obtain in writing as promptly as
possible all approvals and consents required to be obtained by Advance
Technologies in order to consummate the transactions contemplated hereby
and deliver to Seacrest copies, satisfactory in form and substance to
Seacrest of such approvals and consents;
(b) Promptly notify Seacrest of any circumstance, event or action,
by Advance Technologies or otherwise, (i) which, if known at the date of
this agreement, would have been required to be disclosed in or pursuant
to this agreement, or (ii) the existence, occurrence or taking of which
would result in any of the representations and warranties of Advance
Technologies in this agreement or in any transaction document not being
true and correct in all material respects.
Section 5.4 Joint Undertakings. Each of Advance Technologies and
Seacrest shall cooperate and exercise commercially reasonable efforts to
facilitate the consummation of the transactions contemplated by the
agreement so as to permit closing to take place on the date provided
herein and to cause the satisfaction of conditions to closing set forth
in Article 6.
Section 5.5 Confidentiality.
(a) Any non-public information that Advance Technologies may
obtain from Seacrest in connection with this agreement, including but
not limited to information concerning trade secrets, licenses, research
projects, costs, profits, markets, sales, customer lists, strategies,
plans for future development and any other information of a similar
nature, shall be deemed confidential, and unless and until closing shall
occur, Advance Technologies shall not disclose any such information to
any third party [other than its directors, officers and employees, and
persons whose knowledge thereof is necessary to facilitate the
consummation of the transactions contemplated hereby] or use such
information to the detriment of Seacrest; provided that; (i) Advance
Technologies may use and disclose any such information once it has been
publicly disclosed [other than by Advance Technologies in breach of its
obligations under this Section] or which rightfully has come into the
Advance Technologies, Inc. 8-K page 8
(Agreement and Plan of Acquisition)
possession of Advance Technologies [other than from Seacrest], and (ii)
to the extent that Advance Technologies may become compelled by legal
requirements to disclose any of such information, Advance Technologies
may disclose such information if it shall have used all reasonable
efforts, and shall have afforded Seacrest the opportunity, to obtain an
appropriate protective order, or other satisfactory assurance of
confidential treatment, for the information compelled to be disclosed.
In the event of termination of this agreement, Advance Technologies
shall use all reasonable efforts to cause to be delivered to Seacrest,
and retain no copies of, any documents, work papers, and other materials
obtained by Advance Technologies or on its behalf from Seacrest, whether
so obtained before or after the execution hereof.
(b) Any non-public information that Seacrest may obtain from
Advance Technologies in connection with this agreement, including but
not limited to information concerning trade secrets, licenses, research
projects, costs, profits, markets, sales, customer lists, strategies,
plans for future development and any other information of a similar
nature, shall be deemed confidential, and unless, and until Closing
shall occur, Seacrest shall not disclose any such information to any
third party [other than its directors, officers, and employees, and
persons whose knowledge thereof is necessary to facilitate the
consummation of the transactions contemplated hereby] or use such
information to the detriment of Advance Technologies; provided that (i)
Seacrest may use and disclose any such information once it has been
publicly disclosed (other than by Seacrest in breach of its obligations
under this Section) or which rightfully has come into the possession of
Seacrest [other than from Advance Technologies Corp.]; and (ii) to the
extent that Seacrest may become compelled by legal requirements to
disclose any of such information, Seacrest may disclose such information
if it shall have used all reasonable efforts, and shall have afforded
Advance Technologies the opportunity, to obtain an appropriate
protective order, or other satisfactory assurance of confidential
treatment, for the information compelled to be disclosed. In the event
of termination of this agreement, Seacrest shall use all reasonable
efforts to cause to be delivered to Advance Technologies and retain no
copies of, any documents, work papers and other materials obtained by
Seacrest or on its behalf from Advance Technologies, whether so obtained
before or after the execution hereof.
ARTICLE 6
Conditions Precedent
Section 6.1 Publicity. Advance Technologies and Seacrest shall each
consult with and obtain the consent of the other before issuing any
press release or making any other public disclosure concerning this
agreement or the transactions contemplated hereby unless, in the
reasonable judgment of the disclosing party, a release or disclosure is
required to discharge its disclosure obligations under applicable legal
requirements, in which case it shall in good faith consult with the
other party about the form, content and timing of such release or
disclosure prior to its release or disclosure.
Section 6.2 Conditions to Seacrest's Obligation. The obligations of
Seacrest to consummate the transactions contemplated by this agreement
are subject to the following conditions:
(a) Accuracy of Representations; The representations of Advance
Technologies in this agreement or in any transaction document shall be
true and accurate in all material respects at and as of closing with the
Advance Technologies, Inc. 8-K page 9
(Agreement and Plan of Acquisition)
same effect as if made at and as of closing, except as affected by the
transactions contemplated hereby
(b) Performance of Agreements; Advance Technologies shall have
performed all obligations and agreements and complied with all covenants
in this Agreement to be performed and complied with by it at or before
closing.
(c) Officer's Certificate; Seacrest shall have received a
certificate executed by an executive officer of Advance Technologies,
dated as of closing, reasonably satisfactory in form and substance to
Seacrest certifying that the conditions stated in subparagraphs (a) and
(b) of this Section have been satisfied.
(d) Legal Proceedings; There shall be no legal requirement, and
no judgment shall have been entered and not vacated by any Governmental
Authority of competent jurisdiction and no litigation shall be pending
which restrains, makes illegal or prohibits consummation of the
transactions contemplated hereby.
(e) Consents; Seacrest shall have obtained evidence, in form and
substance satisfactory to it that there have been obtained all consents,
approvals and authorizations required by this agreement.
(f) Legal Matters Satisfactory to Seacrest's Counsel; All
actions, proceedings, instruments and documents required to carry out
the transactions contemplated by this agreement or incidental thereto
and all related legal matters shall be reasonably satisfactory to and
approved by Seacrest's counsel, and such counsel shall have been
furnished with such certified copies of actions and proceedings and such
other instruments and documents as it shall have reasonably requested.
Section 6.3 Conditions to Advance Technologies, Inc. Obligations. The
obligations of Advance Technologies to consummate the transactions
contemplated by this agreement are subject to the following conditions:
(a) Accuracy of Representations; The representations of Seacrest
in this agreement or in any transaction document shall be true and
accurate (in all material respects) at and as of closing with the same
effect as if they were made at and as of closing, except as affected by
the transactions contemplated hereby.
(b) Performance of Agreements; Seacrest shall have performed all
obligations and agreements and complied with all covenants in this
agreement or in any transaction document to which it is a party to be
performed and complied with by it at or before closing.
(c) Officer's Certificate; Advance Technologies shall have
received a certificate executed by an executive officer of Seacrest
dated as of closing, reasonably satisfactory in form and substance to
Advance Technologies, certifying that the conditions stated in
subparagraphs (a) and (b) of this Section have been satisfied.
(d) Legal Proceedings; There shall be no legal requirement, and
no judgment shall have been entered and not created by any Governmental
Authority of competent jurisdiction and no litigation shall be pending
which (i) restrains, makes illegal or prohibits consummation of the
transactions contemplated hereby or (ii) could have a material adverse
effect upon the operations or financial condition of Seacrest.
Advance Technologies, Inc. 8-K page 10
(Agreement and Plan of Acquisition)
(e) Consents; Advance Technologies shall have received evidence,
in form and substance satisfactory to it, that there have been obtained
all consents, approvals, and authorizations required by this agreement.
(f) Resignation of Officers and Directors; Each of the Officers
and directors of Advance Technologies whose resignation Seacrest shall
have requested pursuant to Section 4 & 5 shall have delivered to
Seacrest written resignations effective as of closing.
(g) Legal Matters Satisfactory to Advance Technologies and its
Counsel; All actions, proceedings, instruments and documents required
to carry out the transactions contemplated by this Agreement or
incidental thereto and all related legal matters shall be reasonably
satisfactory to and approved by Advance Technologies counsel, and such
counsel shall have been furnished with such certified copies of actions
and proceedings and such other instruments and documents as it shall
have reasonably requested.
ARTICLE 7
Indemnification
Section 7.1 Indemnification by Selling Shareholders. From and after
closing, the selling shareholders set forth in Exhibit 7.1 who, together
with their subsidiaries, other corporate affiliates, and immediate
families, are all the holders of 10% or more of the Seacrest common
stock ["Principal Shareholder"] all jointly and severally indemnify and
hold harmless Advance Technologies, it officers and directors,
employees, agents and representatives and any person claiming by or
through any of them, from and against any and all losses and related
expenses arising out of or resulting from:
(a) Any representations and warranties of Seacrest in this
agreement not being true and accurate when made or when required by this
agreement to be true and accurate; or
(b) Any failure by Seacrest to perform any of its covenants,
agreements or obligations in this agreement.
Section 7.2 Indemnification by Advance Technologies, Inc. From and
after closing, Advance Technologies shall indemnify and hold harmless
Seacrest. Its officers and directors, agents and representative, and any
person claiming by or through any of them, as the case may be, from and
against any and all losses and related expenses arising out of or
resulting from:
(a) Any representations and warranties of Advance Technologies
in this agreement not being true and accurate when made or when required
by this agreement or any transaction document to be true and accurate;
or
(b) Any failure by Advance Technologies to perform any of its
covenants. agreements or obligations in this agreement.
(c) All undisclosed liabilities and obligations relating to, or
arising out of activities of Advance Technologies during periods prior
to closing.
Section 7.3 Indemnification Against Third Party Claims. Promptly after
receipt, by a person entitled to indemnification hereunder [the
"Indemnittee"] of written notice of the assertion of any claim or the
commencement of any litigation with respect to any matter referred to in
Sections 7.1 or 7.2, the Indemnity shall give written notice thereof to
Advance Technologies, Inc. 8-K page 11
(Agreement and Plan of Acquisition)
the party from whom indemnification is sought pursuant hereto [the
"Indemnitor"] and thereafter shall keep the Indemnitor reasonably
informed with respect thereto, provided that failure of the Indemnity to
give the Indemnitor notice as provided herein shall not relieve the
Indemnitor of its obligations hereunder. In case any litigation is
brought against any Indemnity, the Indemnitor shall be entitled to
participate in (and at the request of the Indemnity shall assume) the
defense thereof with counsel satisfactory to the Indemnity at the
Indemnity's expense. If the Indemnitor, at the Indemnity's request,
shall assume the defense of any settlement shall include as an
unconditional term thereof the giving by the claimant or the plaintiff
of a release of the Indemnity, satisfactory to the Indemnity, from all
liability with respect to such litigation.
Section 7.4 Time and Manner of Certain Claims. The representations and
warranties of Advance Technologies and the principal shareholders in
this agreement shall survive closing; provided, however, that neither
Advance Technologies nor the principal shareholders shall have any
liability under Sections 7.1 or 7.2, respectively unless a claim is
asserted by the party seeking indemnification thereunder by written
notice to the party from whom indemnification is sought within three
years after closing and such party commences litigation seeking such
indemnification within 180 days following the date of such notice.
Section 7.5 Effect of de minims Damage on Indemnity by Principal
Shareholders. The principal shareholders shall have no indemnity
obligations under this Article 7, unless the aggregate amount payable by
them under this Article 7 is in excess of $100,000.
Section 7.6 Tax Effect. In calculating amounts payable to an Indemnity
hereunder, (i) the amount of indemnified losses shall be reduced by the
amount of any reduction in the Indemnity's liability for taxes resulting
from the facts or occurrence giving rise to the indemnified losses; and
(ii) the amount of the indemnified losses shall be grossed up by the
amount of any increase in liability for taxes resulting from
indemnification with respect thereto.
ARTICLE 8
Termination
Section 8.1 Termination Events. This agreement may be terminated and
the transactions contemplated hereby may be abandoned:
(a) At any time, by the mutual agreement of Advance Technologies
and Seacrest.
(b) By either Advance Technologies or Seacrest, if the other is
in material breach or default of its respective covenants, agreements or
other obligations hereunder or if any of its representations and
warranties herein are not true and accurate in all material respects
when made or when otherwise required by this agreement to be true and
accurate.
(c) By Seacrest, if any of the conditions to its obligations set
forth in Section 6.1 shall not have been satisfied as of closing, unless
satisfaction shall have been frustrated or made impossible by an act or
failure to act of Seacrest; or
(d) By Advance Technologies, if any of the conditions to its
obligations set forth in Section 6.2 shall not have been satisfied as of
closing, unless satisfaction shall have been frustrated or made
Advance Technologies, Inc. page 12
(Agreement and Plan of Acquisition)
impossible by an act of failure to act of Advance Technologies; or
(e) By either Advance Technologies or Seacrest upon written notice
to the other, if the transactions contemplated by this agreement are not
consummated on or prior to February 1, 1999 for any reason other than
material breach or default by such party of it respective
representations, warranties, covenants. Agreements or other obligations
hereunder.
Section 8.2 Effect of Termination. If this agreement shall be
terminated, all obligations of the parties hereunder shall terminate,
except for the obligations set forth in Section 5.5, 5.6 and 9.3
ARTICLE 9
Miscellaneous
Section 9.1 Expenses. Each party shall be responsible for the legal,
accounting and any other expenses consummated as a result of this
transaction.
Section 9.2 Waiver and Modifications. Any of the provisions of the
agreement may be waived at any time by the party entitled to the benefit
thereof, upon the authority of the Board of Directors of such party;
provided, however, that no waiver by Advance Technologies shall be
authorized after the last vote of the stockholders of Advance
Technologies if such waiver shall, in the judgment of the board of
directors of Advance Technologies, affect materially and adversely the
benefits of the Advance Technologies stockholders under this agreement
or the agreement of Acquisition. Any of the provisions of this agreement
[including the exhibits and the Agreement of Acquisition] may be
modified at any time prior to and after the vote of the stockholders of
Advance Technologies by agreement in writing approved by the board of
directors of each party and executed in the same manner [but necessarily
by the same persons] as this Agreement, provided that such modification,
after the last vote of the stockholders of Advance Technologies shall
not, in the judgment of the board of directors of Advance Technologies,
affect materially and adversely the benefits of Advance Technologies
stockholders under this agreement or the agreement of Acquisition. To
the extent permitted by law, the powers of the board of directors may be
delegated by the board to the executive committee of such board or by
such board [or by the executive committee to the extent any matter has
been delegated to such committee by the board] to any officer or
officers of such party, and any notices, consents or other action
referred to in this agreement may be given or taken by any officer so
authorized.
Section 9.3 Finder Commissions. Advance Technologies and Seacrest each
represents and warrants that no broker or finder is entitled to any
brokerage or finder's fee or other commission based on agreements,
arrangements or understandings made by it with respect to the
transactions contemplated by this agreement or by the agreement of
Acquisition, other than set forth in Exhibit 9.3.
Advance Technologies, Inc. 8-K page 13
(Agreement and Plan of Acquisition)
Section 9.4 Notices. Any notice, request, instruction or other
document to be given hereunder or under the agreement of Acquisition by
any party to another shall be in writing and delivered personally or
sent by registered or certified mail, postage prepaid.
If to Advance Technologies, Inc. addressed to:
304 South Elm Drive
Penthouse
Beverly Hills, CA 90212
If to Seacrest Industries Corporation addressed to:
304 South Elm Drive
Penthouse
Beverly Hills, CA 90212
Section 9.6 Abandonment. At any time before the effective date, this
Acquisition Agreement may be terminated and the Acquisition may be
abandoned by the Board of Directors of either Advance Technologies
Corp., or Seacrest Industries Corporation, or both, notwithstanding
approval of this agreement by the shareholders of Advance Technologies
Corp., or the shareholders of Seacrest Industries Corporation, or both
Section 9.7 Entire Agreement. This Agreement and Plan of Acquisition
represents the entire agreement between the parties. Any and all other
oral or written agreements concerning this Acquisition shall be deemed
null and void.
Section 9.8 Governing Law. This agreement shall be governed by,
construed, and enforced in accordance with the laws of the State of
Nevada.
Section 9.9 Counterparts. In order to facilitate the filing and
recording of this Acquisition Agreement the same may be executed in any
number of counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, Advance Technologies, Inc. and Seacrest Industries
Corporation, by their duly authorized officers, have executed and
delivered this Agreement effective as of the date first above written.
Advance Technologies, Inc.
By: /S/ Gary E. Ball
Name: Gary E. Ball
Title: President and Director
Seacrest Industries Corporation.
By: /S/ Wendy Ball
Name: Wendy Ball
Title: Secretary and Director
Advance Technologies, Inc. 8-K page 14
(Agreement and Plan of Acquisition)
