As filed with the Securities and Exchange Commission on September 15, 1998.
File No. Commission file number: 0-9476
- ----------------- ------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
FLEXWEIGHT CORPORATION
------------------------------
(Exact name of registrant as specified in its charter)
Kansas 48-0680109
-------- ------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
915 N. Wells, Wendover, Nevada 89883
----------------------------------------
(Address of principal executive offices)
1998 Stock Option Plan of Flexweight Corporation
------------------------------------------------
(Full Title of Plan)
Walter Sanders, 915 N. Wells, Wendover, Nevada 89883
----------------------------------------------------
(Name, address,including zip code, of agent for service)
Telephone number, including area code, of agent for service: (702) 664-3484
--------------
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities Amount to be Price Per Offering Registration
to be Registered Registered Share(1) Price(1) Fee
- ----------------------- ------------ --------- ---------- ------------
<S> <C> <C> <C> <C>
$.10 P.V. Common Stock 1,018,333 $6.125 $6,237,290 $1,840
(1) Bona Fide estimate of maximum offering price solely for calculating the
registration fee pursuant to Rule 457(c) and (h) of the Securities Act of
1933, based on the average bid and asked price of the registrant's common
stock as of August 11, 1998, a date within five business days prior to the
date of filing of this registration statement.
</TABLE>
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Plan described herein.
1
<PAGE>
Explanatory Note
----------------
The Company is registering additional shares under its 1998 Stock Option
Plan filed on Form S-8 with Securities and Exchange Commission on August 13,
1998, Commission file number 333-61657. The Company's 1998 Stock Option Plan
filed on Form S-8 on August 13, 1998, is hereby incorporated by reference into
this Form S-8 registration statement. The Company has further modified the 1998
Stock Option Plan to account for the issuance of an additional 1,018,333 shares
being registered on this Form S-8. The registration of additional shares is for
the purpose of compensating certain consultants covered under the Company's 1998
Stock Option Plan for services rendered in connection with an Asset Purchase
Agreement signed by the Company on September 14, 1998.
Prior to the filing, if any, of a post-effective amendment that indicates
that all securities covered by this Registration Statement have been sold or
that de-registers all such securities then remaining unsold, all reports and
other documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
reports and documents.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Wendover, State of Nevada, on September 15, 1998.
FLEXWEIGHT CORPORATION
By: /s/Walter G. Sanders
----------------------
Walter Sanders, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Walter G. Sanders with power of substitution, as
his attorney-in-fact for him, in all capacities, to sign any amendments to this
registration statement and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorney-in-fact or his
substitutes may do or cause to be done by virtue hereof.
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Walter G. Sanders President, Acting Chief Financial September 15, 1998
- --------------------- Officer and Director
Walter G. Sanders
/s/ Charles Longson Vice President and Director September 15, 1998
- -------------------
Charles Longson
3
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
THE SECURITIES ACT OF 1933
----------------------
Flexweight Corporation
(A Kansas Corporation)
----------------------
4
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibits SEC Ref. No. Description Sequentially
of Exhibit Number Pages
- -------- ------------ ----------- ------------
A 10 Asset Purchase Agreement between the
Company and NuOASIS International, Inc.
dated September 14, 1998
B 10 Consulting Agreement between the Company
and Hudson Consulting Group, Inc. dated
July 18, 1998
C 5, 23(b) Opinion and consent of Counsel with
respect to the legality of the issuance
of securities being issued
D 23(a) Consent of Accountant
EXHIBIT "A"
Asset Purchase Agreement
<PAGE>
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, ("Agreement") dated this day of September,
1998, among Flexweight Corporation, a Kansas corporation ("Flexweight") and
NuOasis International Inc., a corporation organized under the laws of The
Commonwealth of the Bahamas ("NuOasis").
WHEREAS, Flexweight desires to acquire the assets of NuOasis consisting
of not less than 75% of the capital stock of Cleopatra Palace Resorts and
Casinos Limited, a U.K. corporation ("CPR") and not less than 80% of the total
issued and outstanding capital stock of NuOasis Resorts & Casinos N.V., a
Netherlands Antilles corporation in organization ("NAC") for a purchase price of
Two Hundred Twenty Million Dollars $220,000,000 (the "Purchase Price");
WHEREAS, NuOasis desires to sell the NuOasis Assets (as defined below)
to Flexweight for the Purchase Price; and
WHEREAS, Flexweight is a SEC reporting company whose shares of common
stock are traded on the NASDAQ OTC Bulletin Board.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
Definitions. (a) As used in this Agreement, the following defined terms shall
have the meanings indicated below:
"Actions or Proceedings" means any action, suit, proceeding, arbitration or
Governmental or Regulatory Authority investigation or audit.
"Affiliate" means, as applied to any Person, (i) any other Person directly or
indirectly controlling, controlled by or under common control with, that Person,
(ii) any other Person that owns or controls five percent (5%) or more of any
class of equity securities (including any equity securities issuable upon the
exercise of any Option) of that Person or any of its Affiliates, or (iii) any
member, director, partner, officer, agent, employee or relative of such Person.
For the purposes of this definition, "control" (including with correlative
1
<PAGE>
meanings, the terms "controlling", "controlled by", and "under common control
with") as applied to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
that Person, whether through ownership of voting securities or by contract or
otherwise.
"Agreement" means this Asset Purchase Agreement, the Exhibits and the Disclosure
Schedule and the certificates delivered in connection herewith, as the same may
be amended, modified or restated from time to time in accordance with the terms
hereof. "Assets and Properties" of any Person means all assets and properties of
every kind, nature, character and description (whether real, personal or mixed,
whether tangible or intangible, whether absolute, accrued, contingent, fixed or
otherwise and wherever situated), including the goodwill related thereto,
operated, owned or leased by such Person, including, without limitation, cash,
cash equivalents, accounts and notes receivable, chattel paper, documents,
instruments, general intangibles, real estate, equipment, inventory, goods and
Intellectual Property.
"Audited Financial Statements" has the meaning ascribed to it in Section 3.8.
"Books and Records" means all files, documents, instruments, papers, books and
records relating to the Business, NuOasis or the Subsidiaries, including without
limitation financial statements, Tax Returns and related work papers and letters
from accountants, budgets, pricing guidelines, ledgers, journals, deeds, title
policies, minute books, stock certificates and books, stock transfer ledgers,
Contracts, Permits, customer lists, computer files and programs, retrieval
programs, operating data and plans and environmental studies and plans.
"Business Combination" means with respect to any Person any (i) merger,
consolidation or combination to which such Person is a party, (ii) any sale,
issuance dividend, split or other disposition of any capital stock or other
equity interests (or any security or loan convertible into or exchangeable for
such capital stock or other equity interests) of such Person, (iii) any tender
offer (including without limitation a self-tender), exchange offer,
recapitalization, liquidation, dissolution or similar transaction, (iv) any
sale, dividend or other disposition of all or a material portion of the Assets
and Properties of such Person or (v) the entering into of any agreement or
understanding, or the granting of any rights or options, with respect to any of
the foregoing.
"Business Day" means a day other than Saturday, Sunday or any day on which banks
located in the State of Nevada are authorized or obligated to close.
"Business and/or Condition of NuOasis" means the Business, condition (financial
or otherwise), results of operations, Assets and Properties of NuOasis and the
Subsidiaries taken as a whole.
"Closing Date" means September 30, 1998, or such earlier date as the parties
hereto may mutually agree.
"Code" means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
2
<PAGE>
"Contract" means any agreement, lease,
license, evidence of Indebtedness, mortgage, indenture, security agreement or
other contract or other commitment (whether written or oral).
"NuOasis Assets" means, collectively, the 75% equity ownership of CPR,
consisting of not less than 18,750,000 shares of CPR capital stock (the "CPR
shares") and 80.0% equity ownership of NRC, consisting of not less than
4,000,000 shares of NRC capital stock (the "NRC Shares")
"Disclosure Schedule" means the schedules delivered to Flexweight by or on
behalf of NuOasis, containing all lists, descriptions, exceptions and other
information and materials as are required to be included therein by NuOasis
pursuant to Article 3 of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC thereunder.
"GAAP" means United States generally accepted accounting principles,
consistently applied throughout the specified period and in all prior comparable
periods.
"Governmental or Regulatory Authority" means any court, tribunal, authority,
agency, commission, official or other instrumentality of the United States, any
foreign country or any domestic or foreign state, county, city or other
political subdivision, any arbitrator, tribunal or panel of arbitrators and,
shall include, without limitation, any stock exchange, quotation service and the
National Association of Securities Dealers.
"Indebtedness" means, as to any Person: (i) all obligations, whether or not
contingent, of such Person for borrowed money (including, without limitation,
reimbursement and all other obligations with respect to surety bonds, letters of
credit and bankers' acceptances, whether or not matured), (ii) all obligations
of such Person evidenced by notes, bonds, debentures or similar instruments,
(iii) all obligations of such Person representing the balance of deferred
purchase price of property or services, except trade accounts payable and
accrued commercial or trade liabilities arising in the ordinary course of
business, (iv) all interest rate and currency swaps, caps, collars and similar
agreements or hedging devices under which payments are obligated to be made by
such Person, whether periodically or upon the happening of a contingency, (v)
all indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (vi)
all obligations of such Person under leases which have been or should be, in
accordance with GAAP, recorded as capital leases, (vii) all indebtedness secured
by any Lien (other than Liens in favor of lessors under leases other than leases
included in clause (vii)) on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been assumed
by that Person or is non-recourse to the credit of that Person, and (viii) all
Indebtedness of any other Person referred to in clauses (i) through (vii) above,
guaranteed, directly or indirectly, by that Person.
3
<PAGE>
"Intellectual Property" means all patents and patent rights, trademarks and
trademark rights, trade names and trade name rights, service marks and service
mark rights, service names and service name rights, brand names, inventions,
processes, formulae, copyrights and copyright rights, trade dress, business and
product names, logos, slogans, trade secrets, industrial models, processes,
designs, methodologies, computer programs (including all source codes) and
related documentation, technical information, manufacturing, engineering and
technical drawings, know-how and all pending applications for and registrations
of patents, trademarks, service marks and copyrights.
"IRS" means the United States Internal Revenue Service.
"Laws" means all laws, statutes, rules, regulations, ordinances and other
pronouncements having the effect of law of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision or of any Governmental or Regulatory Authority.
"Liabilities" means all Indebtedness, obligations and other liabilities of a
Person (whether absolute, accrued, contingent, known or unknown, fixed or
otherwise, or whether due or to become due).
"Liens" means any mortgage, pledge, assessment, security interest, lease, lien,
adverse claim, levy, charge or other encumbrance of any kind, or any conditional
sale Contract, title retention Contract or Contract committing to grant any of
the foregoing.
"Loss" means any and all damages, fines, fees, penalties, deficiencies, losses
and expenses, including, without limitation, interest, reasonable expenses of
investigation, court costs, reasonable fees and expenses of attorneys,
accountants and other experts or other expenses of litigation or other
proceedings or of any claim, default or assessment (such fees and expenses to
include without limitation, all fees and expenses, including, without
limitation, fees and expenses of attorneys, incurred in connection with (i) the
investigation or defense of any third party claims or (ii) asserting or
disputing any rights under this Agreement against any party hereto or
otherwise).
"Option" with respect to any Person means any security, right, subscription,
warrant, option, "phantom" stock right or other Contract that gives the right to
(i) purchase or otherwise receive or be issued any shares of capital stock or
other equity interests of such Person or any security of any kind convertible
into or exchangeable or exercisable for any shares of capital stock or other
equity interest of such Person or (ii) receive any benefits or rights similar to
any rights enjoyed by or accruing to the holder of shares of capital stock or
other equity interest of such Person, including, without limitation, any rights
to participate in the equity, income or election of directors, management
committee members or officers of such Person.
"Order" means any writ, judgment, decree, injunction or similar order of any
Governmental or Regulatory Authority (in each such case whether preliminary or
final).
"Permits" means all licenses, permits, certificates of authority,
authorizations, approvals, registrations, franchises and similar consents
granted or issued by any Governmental or Regulatory Authority.
4
<PAGE>
"Permitted Lien" means (i) any Lien for Taxes, governmental, charges or levies
not yet due or delinquent or being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance with
GAAP, (ii) the Liens set forth in any Disclosure Schedule, (iii) any minor
imperfection of title, easements, rights of way or similar Lien as normally
exist with respect to property similar in character to the property affected
thereby and which individually or in the aggregate with other such Liens does
not impair the value or marketability of the property subject to such Lien or
interfere with the use of such property in the conduct of the business of the
Company or any Subsidiary and which do not secure obligations for money borrowed
and (iv) Liens imposed by any law, such as mechanic's, materialman's,
landlord's, warehouseman's and carrier's Liens, securing obligations incurred in
the ordinary course of business which are not yet overdue or which are being
diligently contested in good faith by appropriate proceedings and, with respect
to such obligations which are being contested, for which the Company has set
aside adequate reserves.
"Person" means any individual, corporation, joint stock corporation, limited
liability company or partnership, general partnership, limited partnership,
proprietorship, joint venture, other business organization, trust, union,
association or Governmental or Regulatory Authority.
"Projections" means the projections for the NuOasis assets, results of
operations, assets, liabilities, cash flow and other information supplied by
NuOasis.
"Purchase Price" has the meaning ascribed to it in Section 2.1.
"Flexweight" has the meaning ascribed to it in the forepart of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and
regulations thereunder.
"Subsidiary" means any Person in which NuOasis, directly or indirectly,
beneficially owns more than fifteen percent (15%) of either the equity interests
in, or the voting control of, such Person.
"Tax" or "Taxes" means all federal, state, local or foreign net or gross income,
gross receipts, net proceeds, sales, use, ad valorem, value added, franchise,
bank shares, withholding, payroll, employment, excise, property, alternative or
add-on minimum, environmental or other taxes, assessments, duties, fees, levies
or other governmental charges of any nature whatever, whether disputed or not,
together with any interest, penalties, additions to tax or additional amounts
with respect thereto.
"Tax Returns" means any returns, reports or statements (including any
information returns) required to be filed for purposes of a particular Tax.
5
<PAGE>
"Taxing Authority" means any governmental agency, board, bureau, body,
department or authority of any United States Federal, state or local
jurisdiction or any foreign jurisdiction, having or purporting to exercise
jurisdiction with respect to any Tax.
"Transfer Taxes" means sales, use, transfer, real property transfer, recording,
gains, stock transfer and other similar taxes and fees.
"Unaudited Financial Statements" has the meaning ascribed to it in Section 3.8.
(b) Unless the context of this Agreement otherwise requires, (i) words
of any gender include each other gender, (ii) words using the singular
or plural number also include the plural or singular number,
respectively, (iii) the terms "hereof," "herein," "hereby" and
derivative or similar words refer to this entire Agreement, (iv) the
terms "Article" or "Section" refer to the specified Article or Section
of this Agreement, and (v) the phrases "ordinary course of business"
and "ordinary course of business consistent with past practice" refer
to the business and practice of NuOasis or a Subsidiary. All accounting
terms used herein and not expressly defined herein shall have the
meanings given to them under GAAP.
(c) When used herein, the phrase "to the knowledge of " any Person, "to
the best knowledge of " any Person or any similar phrase, means (i)
with respect to any Person who is an individual, the actual knowledge
of such Person, and (ii) with respect to any other Person, the actual
knowledge of the directors, officers, members, general partners and
other similar Person in a similar position or having similar powers and
duties; and, in the case of each of (i) and (ii), the knowledge of
facts that such individuals should have after reasonable inquiry.
ARTICLE II
SALE OF PURCHASED INTERESTS; CLOSING
2.1 Purchase and Sale. On the terms and subject to the conditions of
this Agreement,
(a) At the Closing, Flexweight shall purchase from NuOasis, free and
clear of all Liens, all of the NuOasis Assets.
(b) The Purchase Price shall be payable at the Closing as set forth
below.
(c) The Purchase Price shall consist of (a) Eight Million (8,000,000)
shares of Flexweight's Common Stock (the "Flexweight Shares"), (b)
Promissory Notes in the aggregate principal amount of One Hundred
Eighty Million Dollars ($180,000,000), and (c) Six Million (6,000,000)
Warrants to Purchase Common Stock ("Warrants") pursuant to which
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<PAGE>
NuOasis, or the holder of the Warrants, may purchase six (6) shares of
Flexweight Common Stock for each Warrant at a price of six dollars
($6.00) per share.
2.2 Closings. The Closing will take place at the offices of Archer &
Weed, 4695 MacArthur Court, Suite 530, Newport Beach, California 92660 on the
Closing Date in accordance with the terms of this Agreement, or at such other
place or time as Flexweight and NuOasis mutually agree. At the Closing,
Flexweight shall pay to NuOasis the Purchase Price pursuant to Section 2.1.
Simultaneously, NuOasis shall deliver to Flexweight one or more certificates
representing the NuOasis Assets together with all necessary instruments of
transfer, in form and substance reasonably satisfactory to Flexweight. At the
Closing, there shall also be delivered to Flexweight and NuOasis the opinions,
certificates and other Contracts, documents and instruments required to be
delivered under the terms of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NUOASIS
NuOasis represents and warrants to Flexweight that the statements contained in
this Article III are true and correct as of the date of this Agreement, and will
be true and correct as of the Closing Date (as though made then and as though
such Closing Date was substituted for the date of this Agreement throughout this
Article III). NuOasis has delivered a Disclosure Schedule (including exhibits
thereto) to Flexweight setting forth certain information, the disclosure of
which is required or appropriate in relation to any or all of the following
representations and warranties.
3.1 Organization of NuOasis. (a) NuOasis is a corporation duly
incorporated, validly existing and in good standing under the Common Wealth of
the Bahamas. The property and business activity of NuOasis is the ownership
(beneficial and of record), on the Closing Date, of the NuOasis Assets, that is
(a) NuOasis is duly qualified, licensed or admitted to do business and
is in good standing in those jurisdictions in which the ownership, use
or leasing of its Assets and Properties, or the conduct or nature of
its business, makes such qualification, licensing or admission
necessary. NuOasis agrees, prior to the Closing Date, to deliver to
Flexweight true and complete English language copies of its (i)
certificate of incorporation with all amendments thereto (the
"Charter") and (ii) by-laws, in each case as in effect on the date
hereof and the name of each director and officer and the position held
by each of them with NuOasis.
3.2 Power and Authority. NuOasis has the requisite power and authority
to execute and deliver this Agreement and to perform its obligations hereunder
7
<PAGE>
and to consummate the transactions contemplated hereby. The execution and
delivery by NuOasis of this Agreement, the performance by NuOasis of the
obligations hereunder and the consummation of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate action.
This Agreement has been duly and validly executed and delivered by NuOasis and
constitutes a legal, valid and binding obligation of NuOasis enforceable against
NuOasis in accordance with its terms.
3.3 Capitalization. As of the date hereof, and immediately prior to the
consummation of the transactions contemplated hereby and before giving effect to
such transactions, the authorized capital stock of NuOasis consists of Seventy
Five Million (75,000,000) shares of Common Stock, of which not more than Seven
Five Million (75,000,000) shares are issued and outstanding and Twenty Five
Million (25,000,000) shares of Preferred Stock of which Twenty Four Million
(24,000,000) shares are issued and outstanding as Series A Convertible Preferred
Stock (the "Series A Shares").
As of the date hereof, there are no preemptive or similar rights to
purchase or otherwise acquire shares of the capital stock of NuOasis pursuant to
any provision of law, the Charter or By-laws (in each case, as amended and in
effect on the date hereof), or any agreement to which NuOasis is a party. All of
the outstanding shares of capital stock of NuOasis have been duly authorized and
validly issued, are fully paid and non-assessable.
3.4 Subsidiaries. Section 3.4 of the Disclosure Schedule lists the name
of each Subsidiary and the ownership interest of NuOasis therein. Each
Subsidiary is a corporation duly organized, validly existing and in good
standing under the Laws of its jurisdiction of incorporation or organization and
has full power and authority to conduct its business as presently conducted and
to own, use and lease its Assets and Properties. Each Subsidiary is duly
qualified, licensed or admitted to do business and is in good standing in those
jurisdictions in which the ownership, use or leasing of such Subsidiary's Assets
and Properties, or the conduct or nature of its business, makes such
qualification, licensing or admission necessary. All of the outstanding shares
of capital stock of each Subsidiary have been duly authorized and validly
issued, are fully paid and non assessable, and, except as set forth in any
Disclosure Schedule, are owned, beneficially and of record, by NuOasis or
Subsidiaries wholly owned by the Company free and clear of all Liens. There are
no outstanding Options with respect to any Subsidiary. NuOasis agrees, prior to
the Closing Date, to deliver to Flexweight true and complete copies of the
certificate or articles of incorporation and by-laws (or other comparable
charter documents) of each of the Subsidiaries. Except for the Subsidiaries, the
Company holds no equity, partnership, limited liability company, joint venture
or other interest in any Person.
3.5 No Conflicts. The execution and delivery by NuOasis this Agreement,
the performance by NuOasis of its obligations hereunder and the consummation of
the transactions contemplated hereby does not and will not: (a) conflict with or
result in a violation or breach of any of the terms, conditions or provisions of
the Charter or the certificate or articles of incorporation or organization or
by-laws (or other comparable charter documents) of NuOasis, or any Subsidiary;
(b) conflict with or result in a violation or breach of any term or provision of
8
<PAGE>
any Law or Order applicable to NuOasis, or any Subsidiary or any of their
respective Assets and Properties; or (c) (i) conflict with or result in a
violation or breach of, (ii) constitute (with or without notice or lapse of time
or both) a default under, (iii) require NuOasis, or any Subsidiary to obtain any
consent or approval, make any filing with or give any notice to any Person as a
result or under the terms of, (iv) result in or give to any Person any right of
termination, cancellation, acceleration or modification in or with respect to,
(v) result in or give to any Person any additional rights or entitlement to
increased, additional, accelerated or guaranteed payments under, (vi) result in
the creation of any new additional or increased liability of the Company or any
Subsidiary under or (vii) result in the creation or imposition of any Lien upon,
NuOasis or any Subsidiary or any of their respective Assets and Properties
under, any Contract or Permit to which NuOasis, or any Subsidiary is a party or
by which any of their respective Assets and Properties are bound.
3.6 Governmental Approvals and Filings. No consent, approval or action
of, filing with or notice to any Governmental or Regulatory Authority on the
part of NuOasis, or any Subsidiary is required in connection with the execution,
delivery and performance of this Agreement, or the consummation of the
transactions contemplated hereby.
3.7 Corporate Formalities; Books and Records.
(a) NuOasis has complied in all material respects with all corporate
formalities required to be complied with under applicable laws.
(b) The minute books and other similar records of NuOasis and each
Subsidiary as made available to Flexweight prior to the Closing Date
under this Agreement contain a true and complete record, in all
material respects, of all action taken at all meetings and by all
written consents in lieu of meetings of directors, members,
stockholders, the management committee or boards of directors,
subcommittees and committees of the boards of directors of NuOasis and
each Subsidiary.
3.8 Financial Statements.
(a) NuOasis has furnished the Flexweight with true and complete copies
of its audited consolidated balance sheets and its Subsidiaries as of
June 30, 1997 and the related consolidated statements of operations,
statement of changes in stockholder's equity and cash flows for the
years then ended, together with the notes thereto, (the "NuOasis
Financial Statements"), setting forth in each case in comparative form
the corresponding figures for the corresponding dates and periods of
the previous fiscal year, together with reports of auditors thereon,
except as to June 30, 1998 which is presently unaudited. The June 30,
1998 financial statements and those of CPR and NRC and their
subsidiaries for periods ending prior to June 30, 1998 which are
unaudited, if any, fairly present in all material respects the
consolidated financial position of NuOasis and its Subsidiaries as of
the respective dates thereof, and the results of operations, changes in
stockholder's equity and cash flows for the periods set forth therein,
all in conformity with GAAP. The Unaudited Financial Statements fairly
9
<PAGE>
present in all material respects the consolidated financial position of
NuOasis and its Subsidiaries as of the dates thereof and the results of
operations, changes in stockholder's equity and cash flows of the
Company and its Subsidiaries for the periods set forth therein, all in
conformity with GAAP, except as specifically noted in the notes
thereto. (b) The Projections constitute a reasonable forecast of the
NuOasis Assets and business operations for the periods set forth
therein. The Projections have been prepared based on the estimates and
assumptions set forth therein, which assumptions and estimates are all
of the assumptions and estimates used in formulating such Projections
and are reasonable and fair in light of current conditions and reflect
the reasonable estimate of NuOasis of the results of operations,
assets, liabilities, cash flow and other information projected therein.
To the knowledge of NuOasis, no facts exist which would result in any
material change in any such Projections, save the adjustments set forth
above.
3.9 Absence of Changes. Since June 30, 1998 except (a) as set forth in
Section 3.9 of the Disclosure Schedule or (b) the transactions contemplated by
this Agreement, there has not been any event or development which, individually
or together with other such events, could reasonably be expected to have a
material adverse effect on the NuOasis Assets. In addition, without limiting the
foregoing, except as disclosed in Section 3.9 of the Disclosure Schedule and
except for the transactions contemplated by this Agreement since June 30, 1998
neither NuOasis nor any Subsidiary:
(a) has (i) declared, set aside or paid any dividend or other
distribution in respect of the capital stock of NuOasis or any
Subsidiary or (ii) directly or indirectly redeemed, purchased or
otherwise acquired any such capital stock or other equity interests;
(b) authorized, issued, sold or otherwise disposed of, or granted any
Option with respect to any shares of capital stock or other equity
interests of NuOasis or any Subsidiary, or modified or amended any
right of any holder of any outstanding shares of capital stock or other
equity interests of NuOasis or any Subsidiary or Option with respect
thereto;
(c) (i) increased salary, wages or other compensation (including,
without limitation, any bonuses, commissions and any other payments) of
any officer, employee or consultant of NuOasis or any Subsidiary whose
annual salary, wages and such other compensation is, or after giving
effect to such change would be, in the aggregate, $100,000 or more per
annum; (ii) established or modified (A) targets, goals, pools or
similar provisions under any benefit plan, employment contract or other
employee compensation arrangement or (B) salary ranges, increase
guidelines or similar provisions in respect of any benefit plan,
employment Contract or other employee compensation arrangement; or
(iii) adopted, entered into, amended, modified or terminated (in whole
or in part) any benefit plan;
(d) (i) incurred any Indebtedness, (ii) made or agreed to make any
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loans to any Person or (iii) made or agreed to make any voluntary
purchase, cancellation, prepayment or complete or partial discharge in
advance of a scheduled payment date with respect to, or waiver of any
right of NuOasis or any Subsidiary under, any Indebtedness of or owing
to NuOasis or any Subsidiary;
(e) suffered any physical damage, destruction or other casualty loss
(whether or not covered by insurance) adversely affecting any of the
real or personal property or equipment of the material Assets and
Properties of NuOasis or any Subsidiary;
(f) failed to pay or satisfy when due any obligation of NuOasis or any
Subsidiary, except when the failure would not have a material adverse
effect on the Business or Condition of NuOasis or its Subsidiaries;
(g) acquired any business or Assets and Properties of any Person
(whether by merger, consolidation or otherwise) or disposed or leased,
or incurred a Lien (other than a Permitted Lien) on, any Assets and
Properties of NuOasis or any Subsidiary, in each case, other than
acquisitions or dispositions of products in the ordinary course of
business of NuOasis or such Subsidiary consistent with past practice;
(h) entered into, amended, modified, terminated (in whole or in part)
or granted a waiver under or given any consent with respect to any
Intellectual Property;
(i) commenced, terminated or changed any line of the Business;
(j) entered into any transaction with any stockholder or Affiliate of
NuOasis or any Subsidiary, other than pursuant to any Contract in
effect on the Audited Financial Statement Date;
(k) made any change in the accounting methods or procedures of NuOasis
or any Subsidiary or became subject to any conditions or event which
has or could reasonably be expected to have a material adverse effect
on the Business or Condition of NuOasis; or
(l) entered into any agreement to do any of the things described in the
preceding paragraphs, including, without limitation, with respect to
any Business Combination not otherwise restricted by the preceding
paragraphs.
3.10 No Undisclosed Liabilities. At Closing, NuOasis will have no
Liabilities of, relating to or affecting the NuOasis Assets or any Subsidiary or
any of their respective Assets and Properties, except (i) Liabilities reflected
or reserved against in the Audited Financial Statements, (ii) Liabilities
disclosed in Section 3.10 of the Disclosure Schedule, or (iii) Liabilities
incurred in the ordinary course of business consistent with past practice since
the Audited Financial Statement Date and in accordance with the provisions of
this Agreement.
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3.11 Taxes.
(a) All Taxes which could constitute a lien on the Assets and
Properties of NuOasis or the Subsidiaries and which were due and
payable by NuOasis or the Subsidiaries with respect to the Closing Date
and all periods beginning and ending prior thereto have been or will be
paid by NuOasis prior to delinquency. All Tax Returns that have been
filed by or with respect to NuOasis or any Subsidiary, or any
affiliated, combined, consolidated, unitary or similar group of which
NuOasis is or was a member with any Taxing Authority correctly and
completely reflects the income, franchise or other Tax liability and
all other information required to be reported thereon. NuOasis and the
Subsidiaries have withheld and paid all Taxes required to have been
withheld and paid in connection with amounts paid or due and payable to
any employee, creditor, independent contractor or other third party.
(b) NuOasis does not expect any Taxing Authority to assess any
additional Taxes against or in respect of it or any Subsidiary for any
past period. There is no dispute or claim concerning any Tax liability
of NuOasis or any Subsidiary either (i) claimed or raised by any Taxing
Authority or (ii) otherwise known to NuOasis, or any Subsidiary.
NuOasis has delivered to Flexweight, with respect to NuOasis and each
Subsidiary, complete and correct copies of all federal, state, local
and foreign income Tax Returns filed by, and all correspondence,
agreements, notices, reports or statements of deficiencies with, from
or to any Taxing Authority, in each case since January 1, 1996.
3.12 Legal Proceedings. (a) (i) Neither NuOasis nor any Subsidiary has
knowledge of any Orders outstanding against NuOasis or any Subsidiary; and (ii)
there are no Actions or Proceedings pending or, to the knowledge of NuOasis, or
any Subsidiary, threatened against, relating to or affecting NuOasis or any
Subsidiary or any of their respective Assets and Properties. Neither NuOasis nor
any Subsidiary is in default with respect to any Order of any court or
Governmental or Regulatory Authority and there are no unsatisfied judgments
against NuOasis, or any Subsidiary.
3.13 Compliance With Laws and Orders. NuOasis and the Subsidiaries and
the conduct of the Business are in compliance with all applicable Laws and
Orders, except where the failure to comply would not have a material adverse
effect on the Business or Condition of NuOasis or the NuOasis Assets. None of
NuOasis, or any Subsidiary has any knowledge that it is not in compliance with
any of such Laws or Orders where the failure to comply would have a material
adverse effect on the Business or Condition of NuOasis or the NuOasis Assets.
None of NuOasis, or any Subsidiary has any reasonable basis to anticipate that
any presently existing circumstances are likely to result in violations of any
such Laws or Orders which would, individually or in the aggregate, have a
material adverse effect on the Business or Condition of NuOasis.
3.14 Permits. Section 3.14 of the Disclosure Schedule contains a true
and complete list of all Permits used in and material to the business or
operations of NuOasis or any Subsidiary, setting forth the owner, the function
and the expiration and renewal date of each. Prior to the execution of this
Agreement, NuOasis has delivered to Flexweight true and complete copies of all
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such Permits. Except as disclosed in Section 3.14 of the Disclosure Schedule:
(i) NuOasis and each Subsidiary own or validly hold all Permits that are
material to the Business, (ii) each Permit listed in Section 3.14 of the
Disclosure Schedule is valid, binding and in full force and effect and (iii)
neither NuOasis nor any Subsidiary is, or has received any notice that it is, in
default (or with the giving of notice or lapse of time or both, would be in
default) under any such Permit.
3.15 Affiliate Transactions.
(a) Except as disclosed in Section 3.15(a) of the Disclosure Schedule
and except as contemplated by this Agreement, (i) there are no
Liabilities owed to NuOasis or any Subsidiary, on the one hand, by any
current or former equity holder or Affiliate of NuOasis, on the other
hand, (ii) there are no liabilities owed by NuOasis or any Subsidiary
on the one hand, to any such current or former stockholder or Affiliate
of NuOasis or any Affiliate of any such stockholder or Affiliate, on
the other hand, (iii) neither NuOasis, nor any such current or former
stockholder or Affiliate provides or causes to be provided any Assets
and Properties, services or facilities to NuOasis or any Subsidiary,
and (iv) neither NuOasis nor any Subsidiary provides or causes to be
provided any assets, services or facilities to any such current or
former stockholder or Affiliate.
(b) Except as disclosed in Section 3.15(b) of the Disclosure Schedule,
each of the Liabilities and transactions listed in Section 3.15(a) of
the Disclosure Schedule was incurred or engaged in, as the case may be,
on an arm's-length basis on competitive terms.
3.16 Business Relationships. Since June 30, 1998, no business
relationship of NuOasis or any Subsidiary with any customer, supplier or any
group of customers or suppliers whose purchases or sales, as the case may be,
are individually or in the aggregate material to the Business or Condition of
NuOasis has been, or to the knowledge of NuOasis, or any Subsidiary, has been
threatened to be, terminated, canceled, limited or changed or modified
adversely, and, to the knowledge of NuOasis, or any Subsidiary, there exists no
present condition or state of facts or circumstances with respect to such
business relationship that would materially adversely affect the Business or
Condition of NuOasis, or prevent NuOasis from conducting the Business after the
consummation of the transactions contemplated by this Agreement, in
substantially the same manner in which it has heretofore been conducted.
3.17 Other Negotiations; Brokers. Except as set forth in Section 3.17
of the Disclosure Schedule, neither NuOasis, nor any of their respective
Affiliates (nor any investment banker, financial advisor, attorney, accountant
or other Person retained by or acting for or on behalf of NuOasis, any
Subsidiary, or any such Affiliate) (i) has entered into any agreement that
conflicts with any of the transactions contemplated by this Agreement or (ii)
has entered into any agreement or had any discussions with any third party
regarding any transaction involving the Company or any Subsidiary which could
result in Flexweight or its members, officers, director, employee, agent or
Affiliate of any of them being subject to any claim for liability to said third
party as a result of entering into this Agreement or consummating the
transactions contemplated hereby or thereby.
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3.18 Disclosure. This Agreement does not, and the documents and
certificates executed by NuOasis or otherwise furnished by NuOasis to Flexweight
do not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained herein or
therein, in light of the circumstances under which they were made, not
misleading.
4. Representations and Warranties of Flexweight.
Flexweight represents and warrants to NuOasis that:
4.1 Organization and Authority. Flexweight is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Kansas, with the corporate power and authority to carry on its business as
now being conducted. The execution and delivery of this Agreement and the
consummation of the transactions contemplated in this Agreement have been, or
will be prior to closing, duly authorized by all requisite corporate actions on
the part of Flexweight. This Agreement has been duly executed and delivered by
Flexweight and constitutes the valid, binding, and enforceable obligation of
Flexweight.
4.2 Ability to Carry Out Agreement. To the best of Flexweight's
knowledge and belief, the execution and performance of this Agreement will not
violate, or result in a breach of, or constitute a default in, any provisions of
applicable law, any agreement, instrument, judgment, order or decree to which
Flexweight is a party or to which Flexweight is subject. No consents of any
persons under any contract or agreement required to be disclosed pursuant to
this Agreement are required for the execution, delivery, and performance by
Flexweight of this Agreement.
4.3 The Shares. The Shares to be issued pursuant to this Agreement will
be issued at Closing, free and clear of liens, claims, and encumbrances, and
Flexweight has all necessary right and power to issue the Shares to NuOasis as
provided in this Agreement without the consent or approval of any person, firm,
corporation, or governmental authority.
4.4 Capitalization of Flexweight. The capitalization of Flexweight is,
as of the date hereof, comprised of twenty five million (25,000,000) shares of
authorized $.10 par value common stock of which, as of the Closing Date, not
more than Nine Million (9,000,000) shares will be issued and outstanding. All
issued and outstanding shares are legally issued, fully paid, and
non-assessable, and are not issued in violation of the preemptive or other right
of any person.
4.5 Financial Information. Flexweight has provided to NuOasis, or will
provide prior to Closing, copies of its Annual Report on Form 10-KSB for the two
(2) years ending at or prior to August 31, 1997 and the interim quarterly
financial statement on Form 10-QSB for the quarters ended November 30, 1997,
February 28, 1998 and May 31, 1998. The quarterly financial statements and such
Annual Reports, and all other information included in such reports, shall be
referred to as the "Flexweight's Financials." Flexweight has no obligations or
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liabilities (whether accrued, absolute, contingent, liquidated or otherwise,
including without limitation any tax liabilities due or to become due) which are
not fully disclosed and adequately provided for in Flexweight Financials,
excepting current liabilities incurred and obligations under agreements entered
into in the usual and ordinary course of business since the date of Flexweight
Financials, none of which (individually or in the aggregate) are material except
as expressly indicated in Flexweight Financials. Flexweight is not a guarantor
or otherwise contingently liable for any material amount of such indebtedness.
Except as indicated in Flexweight Financials or Flexweight Disclosure Documents,
there exists no default under the provisions of any instrument evidencing such
indebtedness or of any agreement relating thereto.
4.6 Litigation. To the best knowledge and belief of Flexweight, except
as disclosed pursuant to this Agreement, there is neither pending nor
threatened, any action, suit or arbitration to which its property, assets or
business is or is likely to be subject and in which an unfavorable outcome,
ruling or finding will or is likely to have a material adverse effect on the
condition, financial or otherwise, or properties, assets, business or
operations, which would create a material liability on the part of Flexweight,
or which would conflict with this Agreement or any action taken or to be taken
in connection with it.
4.7 Tax Matters. Flexweight has filed or will file all federal, state,
and local income, excise, property, and other tax returns, forms, or reports,
which are due or required to be filed by it and has paid, or made adequate
provision for payment of all taxes, interest, penalty fees, assessments, or
deficiencies shown to be due or claimed to be due or which have or may become
due on or in respect to such returns or reports.
4.8 Contracts. Except as disclosed pursuant to this Agreement, there
are no contracts, actual or contingent obligations, agreements, franchises,
license agreements, or other commitments between Flexweight and other third
parties which are material to the business, financial condition, or results of
operation of Flexweight, taken as a whole. For purposes of the preceding
sentence, the term "material" refers to any obligation or liability which by its
terms calls for aggregate payments of more than $25,000.
A list of material contracts will be attached as an exhibits and approved or
disapproved at closing ("Approved Agreements").
4.9 Material Contract Breaches; Defaults. To the best of Flexweight's
knowledge and belief, except as disclosed in Flexweight Financials, it has not
materially breached, nor has it any knowledge of any pending or threatened
claims or any legal basis for a claim that it has materially breached, any of
the terms or conditions of any agreements, contracts, or commitments to which it
is a party or is bound and which might give rise to a claim by anyone against
Flexweight. To the best of its knowledge and belief, Flexweight is not in
default in any material respect under the terms of any outstanding contract,
agreement, lease, or other commitment which might give rise to a claim against
Flexweight, and there is no event of default or other event which, with notice
or lapse of time or both, would constitute a default in any material respect
under any such contract, agreement, lease, or other commitment which might give
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rise to a claim against Flexweight in respect of which Flexweight has not taken
adequate steps to prevent such a default from occurring.
4.10 Securities Laws. Flexweight is a public company and represents
that, except as disclosed in Flexweight Disclosure Documents and in Flexweight's
Financials, it has no existing or threatened liabilities, claims, lawsuits, or
basis for the same with respect to its original stock issuance to its founders,
its initial public offering, any other issuance of stock, or any dealings with
its stockholders, the public, the brokerage community, the SEC, any state
regulatory agencies, or other persons. Flexweight is required to file periodic
reports under Section 12(g) of the '34 Act. Flexweight represents that all
reports required to be filed pursuant to the '34 Act and any applicable U.S.
state "Blue Sky" laws have been filed.
4.11 Brokers. Flexweight has not agreed to pay any brokerage fees,
finder's fees, or other fees or commissions with respect to the transactions
contemplated in this Agreement which could give rise to a claim against the
Shares. To the best of Flexweight's knowledge, except for Hudson Consulting
Group Inc. and NuVen Advisors Inc., no person or entity is entitled, or intends
to claim that it is entitled, to receive any such fees or commissions in
connection with such transactions. Flexweight further agrees to indemnify and
hold harmless the other parties to this Agreement against liability to any other
broker claiming to act on behalf of Flexweight.
4.12 Corporate Records. Copies of all corporate books and records,
including, but not limited to, any other documents and records of Flexweight
relating to the proceeding of its shareholders and directors will be provided to
NuOasis prior to Closing at the request of NuOasis. All such records and
documents are and will be complete, true, and correct.
4.13 Approvals. Except as otherwise provided in this Agreement, no
authorization, consent, or approval of, or registration or filing with, any
governmental authority or any other person is required to be obtained or made by
Flexweight in connection with the execution, delivery, or performance of this
Agreement.
4.14 Full Disclosure. The information concerning Flexweight, set forth
in this Agreement, and in Flexweight Disclosure Documents, is, to the best of
Flexweight's knowledge and belief, complete and accurate in all material
respects and does not contain any untrue statement of a material fact or omit to
state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
4.15 Date of Representations and Warranties. Each of the
representations and warranties of Flexweight set forth in this Agreement is true
and correct at and as of the Closing Date, with the same force and effect as
though made at and as of the Closing Date, except for changes permitted or
contemplated by this Agreement. Without limiting the generality of the
foregoing, Company represents and warrants that as of the Closing Date, its
payables will be $20,000 or less excluding notes payable for the purchase of the
Oasis, Nevada property.
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5. Conditions Precedent to Obligations of NuOasis.
All obligations of NuOasis under this Agreement are subject to the fulfillment,
prior to or as of the Closing Date, of each of the following conditions:
5.1 Representations and Warranties. The representations and warranties
by Flexweight set forth in this Agreement shall be true and correct at and as of
the Closing Date, with the same force and effect as though made at and as of the
Closing Date, except for changes permitted or contemplated by this Agreement.
Flexweight shall deliver on the Closing Date a certificate to this effect,
referred to as Flexweight Certificate of Representations and Warranties.
5.2 No Breach or Default. Flexweight shall have performed and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing.
5.3 Action to Pay Purchase Price. Flexweight shall have taken all
corporate and other action necessary to issue and deliver the Shares, the Notes
and the Warrants representing the Purchase Price to NuOasis pursuant to this
Agreement at Closing.
5.4 Company Disclosure Documents. Before Closing, Flexweight will have
delivered to NuOasis, or caused the delivery of, Flexweight Disclosure
Documents.
5.5 Approval of Other Instruments and Documents by NuOasis. All
instruments and documents delivered to NuOasis pursuant to the provisions of
this Agreement shall be reasonably satisfactory to their legal counsel.
5.6 Opinion of Counsel. Flexweight shall have delivered to NuOasis an
opinion of counsel dated the Closing Date to the effect that:
(a) Flexweight is duly organized, validly existing, and in good
standing under the laws of the United States, State of Kansas.
(b) Flexweight has the corporate power to conduct business and,
specifically, to carry on its business as now being conducted and is
duly qualified to do business in the United States, State of Kansas.
(c) All corporate actions and director approvals have been properly
obtained and completed by Flexweight, to the extent, if any, that they
are necessary, for all actions required under this Agreement prior to
Closing.
(d) This Agreement has been duly authorized, executed, and delivered by
Flexweight and is a valid and binding obligation of Flexweight and, in
this regard, Flexweight shall provide NuOasis at Closing with a
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certified copy of the resolution or resolutions of the Board of
Directors of Flexweight, approving and authorizing the issuance by
Flexweight of the Shares upon the terms and conditions herein set
forth.
6. Conditions Precedent to Obligations of Flexweight
All obligations of Flexweight under this Agreement are subject to the
fulfillment, prior to or as of the Closing Date, of each of the following
conditions:
6.1 Representations and Warranties. The representations and warranties
executed by and on behalf NuOasis set forth in this Agreement shall be true and
correct at and as of the Closing Date, with the same force and effect as though
made at and as of the Closing Date, except for changes permitted or contemplated
by this Agreement. NuOasis shall cause to be delivered on the Closing Date the
certificate to this effect, referred to in this Agreement as the Certificate of
Representations and Warranties executed by the President and Chief Executive
Officer of NuOasis.
6.2 No Breach or Default. NuOasis shall have performed and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by them prior to or at the Closing.
6.3 Action to Transfer the NuOasis Assets. NuOasis shall have taken all
action necessary to transfer the NuOasis Assets to Flexweight pursuant to this
Agreement. In this regard, the conveyance(s) of the NuOasis Assets shall contain
such good and sufficient stock powers, and other good and sufficient instruments
of sale, conveyance, transfer, and assignment, in form and substance reasonably
satisfactory to Flexweight's counsel and with all requisite documentary stamps,
if any, affixed, as shall be required or as may be appropriate in order
effectively to vest in Flexweight's good, indefeasible, and marketable title to
the NuOasis Assets free and clear of all liens, mortgages, conditional sales,
and other title retention agreements, pledges, assessments, covenants,
restrictions, reservations, easements, and all other encumbrances of every
nature.
In addition to the conveyance and delivery of the NuOasis Assets, NuOasis shall
have taken all action necessary to deliver all of NuOasis's corporate books and
records, including but not limited to its files, documents, papers, agreements,
formulas, books of account, and records pertaining to its business, and evidence
of compliance with applicable securities laws, if required and requested by
Flexweight's counsel.
6.4 NuOasis Financials. Before Closing, NuOasis will have delivered the
Audited Financial Statements and the Unaudited Financial Statements translated
into English to Flexweight. The NuOasis Disclosure Documents shall specifically
include the information set forth in paragraph 3.8.
6.5 Approval of Other Instruments and Documents by Flexweight. All
instruments and documents delivered to Flexweight pursuant to the provisions of
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this Agreement shall be reasonably satisfactory to Flexweight and its legal
counsel.
6.6 Opinions, Affidavits and Declarations of NuOasis. NuOasis shall
have delivered to Flexweight an opinion of qualified legal counsel reasonably
satisfactory to Flexweight, and its counsel and auditors, dated as at the
Closing Date, that:
(a) NuOasis is duly organized, validly existing, and in good
standing under the laws of the Commonwealth of the Bahamas and that the
NuOasis Assets are free and clear of any and all liens, encumbrances or
contingent liabilities except as disclosed pursuant to this Agreement.
(b) NuOasis has the corporate power to carry on its business as
now being conducted and is duly qualified to do business in any other
jurisdiction where required or where the non-qualification to do
business would have a material adverse affect on the value of its
business.
(c) All action and approvals required in connection to the
transfer of the NuOasis Assets to Flexweight have been properly taken,
completed or obtained by NuOasis, to the extent, if any, that they are
necessary.
(d) This Agreement has been duly authorized, executed, and
delivered by NuOasis and is a valid and binding obligation of NuOasis.
7. Covenants and Agreements of NuOasis
Up to and including the Closing Date, NuOasis covenants that:
7.1 Access and Information. After the execution of this Agreement,
NuOasis will permit Flexweight to have reasonable access to all information
necessary to verify the representations and warranties made herein. After the
Closing, NuOasis will continue to permit Flexweight access to such additional
documentation and information as is reasonably necessary to completion of the
transactions contemplated under this Agreement.
7.2 Conduct of Business as Usual. Up until the Closing Date, NuOasis
shall insure that NuOasis's operations shall be conducted only in the usual and
ordinary course, and that no change will be made to such operations which might
adversely affect the value of the NuOasis Assets to be transferred to
Flexweight.
7.3 Best Efforts. NuOasis shall use its best efforts to fulfill all
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conditions of the Closing including the timely solicitation of affirmative
consent of all third parties necessary to effect a Closing under this Agreement.
7.4 Assent to Sale of NuOasis Assets. In the event the sale of the
NuOasis Assets is consummated, then the shareholders of NuOasis agree to such
sale and waive, surrender, and agree not to exercise any rights which such
shareholders might have concerning the sale of the NuOasis Assets.
8. Covenants and Agreements of Flexweight
Up to and including the Closing Date, Flexweight covenants that:
8.1 Change in Flexweight Directors. Flexweight's Board of Directors
will consist of five (5) seats. At Closing, Flexweight agrees that four (4) of
the five (5) seats on Flexweight's Board will be vacant and may be filled by two
(2) new directors to be chosen by NuOasis and two (2) new directors to be chosen
by mutual agreement between Flexweight and NuOasis, with such directors to be
"Independent", as such termis defined in the Listing Requirements for the Nasdaq
National Market System.
8.2 Maintenance of Capital Structure. Up until the Closing Date, or
termination hereof, whichever is the earlier, except as disclosed herein or
required under the terms of this Agreement, no change shall be made in the
Articles of Incorporation or Bylaws of Flexweight, or the authorized capital
stock of Flexweight.
8.3 Avoidance of Distributions. Up until the Closing Date, Flexweight
shall not declare any dividends, make any payments or distributions to its
stockholders or purchase for cash or redeem any of its shares of capital stock.
8.4 Conduct of Business as Usual. Up until the Closing Date, Flexweight
shall conduct its operations only in the usual and ordinary course, and that no
change will be made to such operations which might adversely affect the value of
Flexweight.
8.5 Access and Information. After the execution of this Agreement,
Flexweight will permit NuOasis to have reasonable access to all information
necessary to verify the representations and warranties of Flexweight. After the
Closing, Flexweight will continue to permit NuOasis access to such additional
documentation and information regarding Flexweight as is reasonably necessary to
completion of the transactions contemplated under this Agreement.
8.6 Best Efforts. Flexweight shall use its best efforts to fulfill or
obtain the fulfillment of all conditions of the Closing, including the timely
solicitation of affirmative consent of all third parties necessary to effect a
Closing under this Agreement.
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9. Termination
9.1 Termination Without Cause. This Agreement may be terminated at any
time prior to the Closing Date without cost or penalty to either party:
(a) Mutual Consent. By mutual consent of NuOasis and Flexweight.
(b) Actions or Proceedings. By NuOasis or Flexweight, (unless the
action or proceeding referred to is caused by a breach or default on
the part of NuOasis or Flexweight of any of their representations,
warranties, or obligations under this Agreement), if there shall be any
actual or threatened action or proceeding by or before any court or any
other governmental body which shall seek to restrain, prohibit, or
invalidate the transactions contemplated by this Agreement and which,
in the judgment of NuOasis or Flexweight, made in good faith and based
upon the advice of legal counsel, makes it inadvisable to proceed with
the transactions contemplated by this Agreement.
9.2 Termination with Cause. This Agreement may be terminated, with the
terminating party to be reimbursed by the other party of all expenses and costs
related to this Agreement, if:
(a) Breach or Noncompliance by NuOasis. NuOasis shall fail to
comply in any material aspect with any of their representations,
warranties, or obligations under this Agreement, or if any of the
representations or warranties made by NuOasis under this Agreement
shall be inaccurate in any material respect and is not cured within ten
(10) business days of notice of such breach.
(b) Breach or Noncompliance by Flexweight. Flexweight shall fail
to comply in any material aspect with any of its representations,
warranties, or obligations under this Agreement, or if any of the
representations or warranties made by Flexweight under this Agreement
shall be inaccurate in any material respect and is not cured within ten
(10) business days of notice of such breach.
10. Securities Registration; Disclosure
10.1 Private Transaction. NuOasis understand that the Shares issued
pursuant to this Agreement, have not been nor will they be registered under the
Securities Act of 1933 as amended ("'33 Act"), but are issued pursuant to
exemptions from registration including but not limited to Regulation D and
Section 4(2) of the '33 Act, and Flexweight's reliance on such exemptions in
21
<PAGE>
issuing the Shares is predicated in part on the representations of NuOasis set
forth herein and in the Investment Letter attached hereto as Exhibit "A" (the
"Investment Letter"), to be executed by NuOasis and delivered to Flexweight at
Closing.
10.2 Access to Information. NuOasis represents that, by virtue of its
economic bargaining power or otherwise, it has had access to or has been
furnished with, prior to or concurrently with Closing, the same kind of
information that would be available in a registration statement under the '33
Act should registration of the Shares issued pursuant to this Agreement have
been necessary, and that they have had the opportunity to ask questions of and
receive answers from Flexweight's officers and directors, or any party acting on
their behalf, concerning the business of Flexweight and that they have had the
opportunity to obtain any additional information, to the extent that Flexweight
possesses such information or can acquire it without unreasonable expense or
effort, necessary to verify the accuracy of information obtained or furnished by
Flexweight.
11. Indemnification
As provided herein, NuOasis and Flexweight shall each indemnify and hold
harmless the other for one (1) year following the date of Closing under this
Agreement against and in respect of any liability, damage, or deficiency, all
actions, suits, proceedings, demands, assessments, judgments, costs and expenses
resulting from any misrepresentations, breach of covenant or warranty, or from
any misrepresentation contained in any certificate furnished hereunder. In this
regard, NuOasis agrees that Flexweight is held harmless from and indemnified
against any loss, damage, or expense resulting from the falsity or breach of any
of the representations, warranties, or agreements of NuOasis contained herein
under which the Shares hereunder are transferred to NuOasis.
12. Confidential Information
Notwithstanding any termination of this Agreement, Flexweight, NuOasis and their
representatives, agree to hold in confidence any information not generally
available to the public received by them from the other party pursuant to the
terms of this Agreement. If this Agreement is terminated for any reason,
Flexweight, NuOasis and their representatives will continue to hold such
information in confidence and will, to the extent requested by any party,
promptly return to the requesting party all written material and all copies or
abstracts thereof previously furnished.
13. Miscellaneous Provisions
13.1 Survival of Representations and Warranties. All representations,
warranties, and covenants made by any party in this Agreement shall survive the
Closing hereunder and the consummation of the transactions contemplated hereby
for three (3) years from the Closing Date. NuOasis and Flexweight are executing
22
<PAGE>
and carrying out the provisions of this Agreement in reliance on the
representations, warranties, and covenants and agreements contained in this
Agreement or at the Closing of the transactions herein provided for including
any investigation upon which they might have made or any representations,
warranty, agreement, promise, or information, written or oral, made by the other
party or any other person other than as specifically set forth herein.
13.2 Costs and Expenses. Subject to paragraph 9 herein, all costs and
expenses in the proposed sale and transfer described in this Agreement shall be
borne by NuOasis and Flexweight in the following manner:
(a) Attorneys Fees and Costs. Each party has been represented by
its own attorney(s) in this transaction, shall pay the fees of its own
attorney(s), except as may be expressly set forth herein to the
contrary.
(b) Costs of Closing. Each party shall bear its reasonable share
of all other Closing costs and expenses arising from this Agreement.
13.3 Further Assurances. At any time and from time to time, after the
effective date, each party will execute such additional instruments and take
such action as may be reasonably requested by the other party to confirm or
perfect title to any property transferred hereunder or otherwise to carry out
the intent and purposes of this Agreement.
13.4 Waiver. Any failure of any party to this Agreement to comply with
any of its obligations, agreements, or conditions hereunder may be waived in
writing by the party to whom such compliance is owed. The failure of any party
to this Agreement to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such provision or a waiver of
the right of such party thereafter to enforce each and every such provision. No
waiver of any breach of or non-compliance with this Agreement shall be held to
be a waiver of any other or subsequent breach or non-compliance.
13.5 Notices. All notices and other communications hereunder shall
either be in writing and shall be deemed to have been given if delivered in
person, sent by overnight delivery service or sent by facsimile transmission, to
the parties hereto, or their designees, as follows:
To Flexweight:
C/O Walter Sanders
915 North Wells, Suite 4
Wendover , Nevada 89883
Telephone (702) 664-3081
Facsimile (702) 664-2331
23
<PAGE>
To NuOasis:
43 Elizabeth Avenue, Box N-8680
Nassau, Bahamas
Telephone (809) 356-2903
Facsimile (809) 326-8434
13.6 Headings. The paragraph and subparagraph headings in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
13.7 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
13.8 Governing Law. This Agreement shall be governed by the laws of the
United States, State of Nevada.
13.9 Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors, and assigns.
13.10 Entire Agreement. This Agreement contains the entire agreement
between the parties hereto and supersedes any and all prior agreements,
arrangements, or understandings between the parties relating to the subject
matter of this Agreement. No oral understandings, statements, promises, or
inducements contrary to the terms of this Agreement exist. No representations,
warranties, covenants, or conditions, express or implied, other than as set
forth herein, have been made by any party.
13.11 Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
13.12 Amendment. This Agreement may be amended only by a written
instrument executed by the parties or their respective successors or assigns.
13.13 Facsimile Counterparts. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more parties hereto and
such executed copy may be delivered by facsimile of similar instantaneous
electronic transmission device pursuant to which the signature of or on behalf
of such party can be seen, and such execution and delivery shall be considered
valid, binding and effective for all purposes. At the request of any party
hereto, all parties agree to execute an original of this Agreement as well as
any facsimile, telecopy or other reproduction hereof.
24
<PAGE>
13.14 Time is of the Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
"Flexweight"
Flexweight Corporation
By:/s/ Walter G. Sanders
---------------------
Name: Walter G. Sanders
Title: President
"NuOasis"
NuOasis International Inc.
By:/s/ Fred Luke
-------------
Name: Fred Luke
Title: President
25
EXHIBIT "B"
Consulting Agreement
<PAGE>
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ( "Agreement") is made this 18th day of July
1998, by and between Hudson Consulting Group, Inc., a Nevada corporation
("Consultant") and Flexweight Corporation, a Kansas corporation (the "Company").
WHEREAS, Consultant and Consultant's personnel are in the business of
assisting development stage companies through locating, evaluating, and
effecting mergers and acquisitions;
WHEREAS, Consultant is also in the business of providing general
financial advise to corporate management and also performs general
administrative duties for publicly-held companies; and
WHEREAS, the Company desires to retain Consultant to advise and assist
the Company on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and
Consultant agree as follows:
1. Engagement
The Company hereby retains Consultant, effective the date hereof and
continuing until termination, as provided herein, to (1) assist the
Company in locating evaluating, and effecting a merger and/or
acquisition; (2) provide general financial advice to corporate
management; (3) provide general administrative duties and (4) assist in
the acquisition of various assets (the "Services"). The Services are to
be provided on a "best efforts" basis directly and through Consultant's
employees or others employed or retained and under the direction of
Consultant ("Consultant's Personnel"); provided, however, that the
Services shall expressly exclude all legal advice, accounting services
or other services which require licenses or certification.
2. Term
This Agreement shall have an initial term of one (1) year (the "Primary
Term"), with an effective date retroactive to the date services were
first performed by Consultant, which was on or about January 2, 1998.
3. Time and Effort of Consultant
Consultant shall allocate time and Consultant's personnel as it deems
necessary to provide the Services. The particular amount of time may
vary from day to day or week to week. Consultant has provided a
statement identifying, in general, the tasks its has performed from
January 1, 1998 to June 30, 1998, attached as Exhibit A. The Company
has reviewed this statement and believes the time and effort expended
by Consultant to be reasonable for the tasks its has completed.
Consultant will continue to provide billing statements on a monthly
basis or within (7) days upon the Company's request. These billing
statements shall be conclusive evidence that the Services have been
performed. Additionally, in the absence of willful misfeasance, bad
1
<PAGE>
faith, negligence or reckless disregard for the obligations or duties
hereunder by Consultant, neither Consultant nor Consultant's personnel
shall be liable to the Company or any of its any shareholders for any
act or omission in the course of or connected with rendering the
Services, including but not limited to losses that may be sustained in
any corporate act in any subsequent Asset Opportunity or Business
Opportunity (as defined herein) undertaken by the Company as a result
of advice provided by Consultant or Consultant's personnel.
4. Compensation
The Company agrees to pay Consultant a fee for the Services it has
provided from January 1, 1998 to June 30, 1998, as stated in Exhibit A
(the "Initial Fee") by way of the issuance by the Company of Three
Hundred Thousand (300,000) shares of the Company's common stock. After
the Initial Fee is paid covering the first 6 months of the Primary
Term, the Company agrees to pay Consultant in shares of its common
stock for the Services Consultant provides at a rate of 15,000 shares
per month (the "Fee Shares").
5. Other Services
If the Company subsequent to the date hereof enters into a merger,
acquisition or purchases assets as a direct or indirect result of
Consultants efforts, the Company agrees to pay Consultant a fee in the
manner described below.
If the Company acquires any asset as a result of Consultants services,
excluding the acquisition of a controlling interest in an entity
through the purchase of substantially all of the entities assets or
stock ("Asset Opportunity"), the Company will pay Consultant a fee
equivalent to 10% of the value of such asset. The Company at its
discretion can pay Consultant in cash, shares of the Company or in like
kind for Assets Opportunity the Company acquires as a result of
Consultant's efforts excluding the acquisition of a controlling
interest in an entity ("Consultant's Fee").
If Consultant assists the Company in a merger, acquisition or an asset
purchase of an entity ("Business Opportunity"), Consultant shall be
paid 5% of the gross value of the merger or acquisition transaction in
shares of common stock of the Company within (5) days of signing a
Definitive Merger, Acquisition or Asset Purchase Agreement ("M&A Fee").
For purposes of determining Consultants M&A Fee, the Company's shares
will be valued at $6.00 per share for assisting the Company in a
merger, acquisition or asset purchase.
The Fee Shares, Consultant's Fee and M&A Fee and any other shares
issued pursuant to this Agreement are in addition to any compensation
paid to Consultant for its role or any of Consultant's affiliates role,
in effecting the acquisition of Oasis Resort, Hotel & Casino-III, Inc.,
the purchase of any land held by the Company formerly owned by
Consultant's affiliates in Oasis, Nevada, or any other shares issued to
Consultant or its affiliates prior to July 18, 1998.
6. Registration of Shares
The Company shall register all shares of its common stock payable to
Consultant with the Securities and Exchange Commission under a Form S-8
or other applicable registration statement, and the Company shall cause
such registration statement to be remain effective at all times while
2
<PAGE>
Consultant holds shares issued to Consultant pursuant to this
Agreement.
The Company will pay the Initial Fee upon demand from Consultant with
shares registered under an applicable registration statement. If the
Company decides to pay the Consultant Fee or the M&A Fee with shares of
its common stock such shares shall be registered and payable with 5
days of the event giving rise to the Company's obligation to pay
Consultant.
However, if Consultant at Consultant's election, agrees to accept such
shares from the Company based upon exemptions from registration
provided by Section 4(2) of the Securities Act of 1933 (the "'33 Act"),
Regulation D of the `33 Act, and applicable state securities laws the
Company will have no obligation to register Consultant's shares.
7. Costs and Expenses
All third party and out-of-pocket expenses incurred by Consultant in
the performance of the Services shall be paid by the Company, or
Consultant shall be reimbursed if paid by Consultant on behalf of the
Company, within ten (10) days of receipt of written notice by
Consultant, provided that the Company must approve in advance all such
expenses in excess of $500 per month.
8. Place of Services
The Services provided by Consultant or Consultant's Personnel hereunder
will be performed at Consultant's offices except as otherwise mutually
agreed by Consultant and the Company.
9. Independent Contractor
Consultant and Consultant's Personnel will act as independent
contractors in the performance of any duties under this Agreement.
Accordingly, Consultant will be responsible for payment of all federal,
state, and local taxes on compensation paid under this Agreement,
including income and social security taxes, unemployment insurance, and
any other taxes due relative to Consultant's Personnel, and any and all
business license fees as may be required. This Agreement neither
expressly nor impliedly creates a relationship of principal and agent,
or employee and employer, between Consultant's Personnel and the
Company. Neither Consultant nor Consultant's Personnel are authorized
to enter into any agreements on behalf of the Company. The Company
expressly retains the right to approve, in its sole discretion, each
Asset Opportunity or Business Opportunity introduced by Consultant, and
to make all final decisions with respect to all transactions on any
Asset Opportunity or Business Opportunity.
10. Rejected Asset Opportunity or Business Opportunity
If, during the term of this Agreement, the Company elects not to
proceed to acquire, participate or invest in any Asset Opportunity or
Business Opportunity identified and/or selected by Consultant,
notwithstanding the time and expense the Company may have incurred
reviewing such transaction, such Asset Opportunity or Business
Opportunity shall re-vest back to and become proprietary to Consultant,
and Consultant shall be entitled to acquire or broker the sale or
investment in such rejected Asset or Business or Business Opportunity
for its own account, or submit such assets or Business Opportunity
elsewhere. In such event, Consultant shall be entitled to any and all
3
<PAGE>
profits or fees resulting from Consultant's purchase, referral or
placement of any such rejected Asset Opportunity or Business
Opportunity, or the Company's subsequent purchase or financing with
such Asset Opportunity or Business Opportunity in circumvention of
Consultant.
11. No Agency Express or Implied
This Agreement neither expressly nor impliedly creates a relationship
of principal and agent between the Company and Consultant, or employee
and employer as between Consultant's Personnel and the Company.
12. Termination
The Company and Consultant may terminate this Agreement prior to the
expiration of the Primary Term upon thirty (30) days written notice
with mutual written consent. Failing to have mutual consent, without
prejudice to any other remedy to which the terminating party may be
entitled, if any, either party may terminate this Agreement with thirty
(30) days written notice under the following conditions:
(A) By the Company.
(i) If during the Primary Term of this Agreement,
Consultant is unable to provide the Services as set
forth herein for thirty (30) consecutive business
days because of illness, accident, or other
incapacity of Consultant's personnel; or,
(ii) If Consultant willfully breaches or neglects the
duties required to be performed hereunder; or,
(B) By Consultant.
(i) If the Company breaches this Agreement or fails to
make any payments or provide information required
hereunder; or,
(ii) If the Company ceases business or, other than in a
merger arranged by Consultant, sells a controlling
interest to a third party, or agrees to a
consolidation or merger of itself with or into
another corporation, or enters into such a
transaction outside of the scope of this Agreement,
or sells substantially all of its assets to another
corporation, entity or individual outside of the
scope of this Agreement; or,
(iii) If the Company has a receiver appointed for its
business or assets, or otherwise becomes insolvent or
unable to timely satisfy its obligations in the
ordinary course of, including but not limited to the
obligation to pay the Initial Fee, the M&A Fee, or
the Consultant Fee; or,
(iv) If the Company institutes, makes a general assignment
for the benefit of creditors, has instituted against
it any bankruptcy proceeding for reorganization for
rearrangement of its financial affairs, files a
petition in a court of bankruptcy, or is adjudicated
a bankrupt; or,
4
<PAGE>
(v) If any of the disclosures made herein or subsequent
hereto by the Company to Consultant are determined to
be materially false or misleading.
In the event Consultant elects to terminate without cause or this
Agreement is terminated prior to the expiration of the Primary Term by
mutual written agreement, or by the Company for the reasons set forth
in A(i) and (ii) above, the Company shall only be responsible to pay
Consultant for unreimbursed expenses, Consultant Fee and M&A Fee
accrued up to and including the effective date of termination. If this
Agreement is terminated by the Company for any other reason, or by
Consultant for reasons set forth in B(i) through (v) above, Consultant
shall be entitled to any outstanding unpaid portion of reimbursable
expenses, M&A Fee, if any, and the balance of the Consultant Fee for
the remainder of the unexpired portion of the applicable term (Primary
Term) of the Agreement.
13. Indemnification
Subject to the provisions herein, the Company and Consultant agree to
indemnify, defend and hold each other harmless from and against all
demands, claims, actions, losses, damages, liabilities, costs and
expenses, including without limitation, interest, penalties and
attorneys' fees and expenses asserted against or imposed or incurred by
either party by reason of or resulting from any action or a breach of
any representation, warranty, covenant, condition, or agreement of the
other party to this Agreement.
14. Remedies
Consultant and the Company acknowledge that in the event of a breach of
this Agreement by either party, money damages would be inadequate and
the non-breaching party would have no adequate remedy at law.
Accordingly, in the event of any controversy concerning the rights or
obligations under this Agreement, such rights or obligations shall be
enforceable in a court of equity by a decree of specific performance.
Such remedy, however, shall be cumulative and non-exclusive and shall
be in addition to any other remedy to which the parties may be
entitled.
15. Miscellaneous
(A) Subsequent Events. Consultant and the Company each agree to
notify the other party if, subsequent to the date of this
Agreement, either party incurs obligations which could
compromise its efforts and obligations under this Agreement.
(B) Amendment. This Agreement may be amended or modified at any
time and in any manner only by an instrument in writing
executed by the parties hereto.
(C) Further Actions and Assurances. At any time and from time to
time, each party agrees, at its or their expense, to take
actions and to execute and deliver documents a may be
reasonably necessary to effectuate the purposes of this
Agreement.
(D) Waiver. Any failure of any party to this Agreement to comply
with any of its obligations, agreements, or conditions
hereunder may be waived in writing by the party to whom such
compliance is owed. The failure of any party to this Agreement
5
<PAGE>
to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such
provision or a waiver of the right of such party thereafter to
enforce each and every such provision. No waiver of any breach
of or non-compliance with this Agreement shall be held to be a
waiver of any other or subsequent breach or non-compliance.
(E) Assignment. Neither this Agreement nor any right created by it
shall be assignable by either party without the prior written
consent of the other.
(F) Notices. Any notice or other communication required or
permitted by this Agreement must be in writing and shall be
deemed to be properly given when delivered in person to an
officer of the other party, when deposited in the United
States mails for transmittal by certified or registered mail,
postage prepaid, or when deposited with a public telegraph
company for transmittal, or when sent by facsimile
transmission charges prepared, provided that the communication
is addressed:
(i) In the case of the Company:
Flexweight Corporation
915 North Wells, Suite 4
Wendover, NV 89883
Telephone: (702) 664-3919
Facsimile: (702) 664-2331
(ii) In the case of Consultant:
Hudson Consulting Group, Inc.
268 West 400 South, Suite 300
Salt Lake City, Utah 84101
Telephone: (801) 575-8073
Telefax: (801) 575-8092
or to such other person or address designated in writing by
the Company or Consultant to receive notice.
(G) Headings. The section and subsection headings in this
Agreement are inserted for convenience only and shall not
affect in any way the meaning or interpretation of this
Agreement.
(H) Governing Law. This Agreement was negotiated and is being
contracted for in the United States, State of Nevada, and
shall be governed by the laws of the State of Nevada, and
United States of America, notwithstanding any conflict-of-law
provision to the contrary.
(I) Binding Effect. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties, their
respective heirs, administrators, executors, successors, and
assigns.
(J) Entire Agreement. This Agreement contains the entire agreement
6
<PAGE>
between the parties hereto and supersedes any and all prior
agreements, arrangements, or understandings between the
parties relating to the subject matter of this Agreement. No
oral understandings, statements, promises, or inducements
contrary to the terms of this Agreement exist. No
representations, warranties, covenants, or conditions, express
or implied, other than as set forth herein, have been made by
any party.
(K) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in
full force and effect.
(L) Counterparts. A facsimile, telecopy, or other reproduction of
this Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument, by one or more parties hereto and such executed
copy may be delivered by facsimile of similar instantaneous
electronic transmission device pursuant to which the signature
of or on behalf of such party can be seen. In this event, such
execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of any party
hereto, all parties agree to execute an original of this
Agreement as well as any facsimile, telecopy or other
reproduction hereof.
(M) Time is of the Essence. Time is of the essence of this
Agreement and of each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date above written.
"Consultant"
Hudson Consulting Group, Inc.
a Nevada corporation
By:/s/ Richard Surber
------------------
Name: Richard Surber
Title: President
The "Company"
Flexweight Corporation
a Kansas corporation
By:/s/ Walter G. Sanders
---------------------
Name: Walter Sanders
Title: President
<PAGE>
Exhibit A
"Initial Fee" Invoice.
<PAGE>
HUDSON CONSULTING GROUP, INC.
Invoice submitted to:
Flexweight Corporation
915 North Wells, Suite #4
Wendover, NV 89883
July 18, 1998
Professional Services - January 1, 1998 to June 30, 1998
Hours
-----
Kimberly Barrager - SEC filing 1.00
Phyllis Cummings - Corporate document preparation, SEC 20.75
filing 20.75 preparation and research.
Melinda Druce - Corporate document preparation 4.50
Gerald Einhorn - Corporate document preparation, research and 35.00
conference
Mike Golightly - Corporate document preparation 2.75
Steve Mallery - Maintaining corporate books, document preparation, 56.25
SEC filing preparation, research and conference
Wayne Newton - Corporate document preparation, review corporate 87.75
documents, research, conference with auditors and update
general ledger
Judith Richardson - Discussion and document preparation relating 3.75
to Flexweight's 10-QSB and 10-KSB
Sheila Smith - Preparation of financials and accompanying notes and 2.50
document preparation
<PAGE>
Professional Services - January 1, 1998 to June 30, 1998
(Continued)
Hours
-----
Bonnie Tippetts - Corporate document preparation and clerical 15.50
Contract Work
A-Z Professional Consultants, Inc. - Negotiations and financial 40.00
analysis of acquisition of Mizpah Hotel, parcels of land
in Wendover, Nevada and various phone conferences with
principals
--------
TOTAL HOURS 269.75
Description Amount
- ----------- ------
Initial Fee pursuant to Consulting Agreement dated 300,000 shares of
July 18, 1998 Flexweight Common
Stock
<PAGE>
Addendum
This Addendum to the Consulting Agreement dated July 18, 1998 between
Flexweight Corporation (the "Company") and Hudson Consulting Group, Inc. (the
"Consultant") is entered into this 15th day of September 1998.
Premises
WHEREAS, the Company must receive a reduction in fees payable to the
Consultant in order to close upon the Asset Purchase Agreement signed September
14, 1998, so that it can provide fee shares to other consultants;
WHEREAS, the Consultant has assisted in procuring, coordinating
adivising and other services relating to the Asset Purchase Agreement with
NuOASIS International, Inc. and wishes to assist in a timely closing upon the
Asset Agreement and is willing to reduce its fee accordingly;
WHEREAS, the Consultant has agreed to waive its 300,000 share initial
fee in favor of Oxford Consulting, Inc.;
WHEREAS, the Consultant has agreed to reduce its fee for procuring and
assisting the Company in signing and eventually closing up the Asset Purchase
Agreement from the contemplated 1,833,333 shares to 1,500,000 shares of the
Company's common stock;
WHEREAS, the Consultant has agreed to waive its 45,000 share fee for
consulting work performed in July, August and September;
Agreement
BASED on the above premises, which are hereby incorporate by this
reference and inconsideration of the mutual promises contained herein, the
benefit to be derived by each party hereunder and other good and valuable
consideration, the sufficiency of which is hereby expressly acknowledged, the
Consultant and the Company agree to amend the Consulting Agreement to reflect
the above reductions in compensation.
IN WITNESS WHEREOF, the parties hereto have executed this addendum.
EXECUTED this 15th day of September, 1998
Hudson Consulting Group, Inc. Flexweight Corporation
/s/ Richard Surber /s/ Walter G. Sanders
- ------------------------ ---------------------
Richard Surber, President Walter Sanders, President
EXHIBIT "C"
Opinion and Consent of Counsel
<PAGE>
Kim Taylor
Attorney at Law
September 15, 1998
Board of Directors
Flexweight Corporation
915 N. Wells, Suite 4
Wendover, NV 89883
RE: Form S-8 Registration Statement Opinion of Counsel
Gentlemen:
I have acted as a special counsel for Flexweight Corporation, a Kansas
corporation (the "Company") in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended, (the "Act") of a a registration statement on Form S-8
(the "Registration Statement"), concerning the issuance of an 1,018,333 shares
of the Company's Common Stock, par value $0.10 (the "Shares"), pursuant to an
employee benefit plan (the "Plan"). In association with the filing of the
Registration Statement, you have requested my opinion regarding the validity of
the issuance of the aforementioned Shares.
For the purpose of this opinion, I have examined the Company's articles of
incorporation, other relevant corporate records, and the Registration Statement
to be filed with the Commission. In addition, I have made such investigations of
federal law as I have considered necessary and appropriate to form a basis for
this opinion. My opinion is qualified by the scope of the document review
specified herein and I make no representations as to the sufficiency of my
investigation for this opinion. I further expressly exempt from this opinion any
representations as to the completeness, adequacy, accuracy or any other aspect
of the financial statements incorporated in the Registration Statement.
The documentation and representations provided to me for this opinion by
the Company and its duly authorized representatives indicate that the Company is
validly organized under the laws of the State of Kansas; the Company is current
in its filings with the Commission; the Company's board of directors has
authorized the filing of a Form S-8 Registration Statement and that the number
of shares to be included in the Registration Statement are available for
issuance based upon Corporate documentation and on the amount of shares actually
issued and outstanding. As such, I am of the opinion that the Shares herein
referenced have been duly and validly authorized and that subject to compliance
with all provisions of the Plan, the Shares will be validly issued as fully paid
and non-assessable shares of Common Stock in the Company.
This opinion is based upon and subject to the qualifications and
limitations specified below:
(A) I have made no independent verification of the facts asserted to be
true and accurate by authorized representatives of the Company.
(B) In rendering this opinion I have assumed that all signatures are
genuine, that all documents submitted to me as copies conform substantially to
the originals, that all documents have been duly executed on or as of the date
represented on the documents, that execution and delivery of the documents was
duly authorized on the part of the parties, that all documents are legal, valid
and binding on the parties and that all corporate records are complete.
(C) I have assumed that the Company is satisfying the substantive
requirements of Form S-8 and I expressly disclaim any opinion regarding the
Company's compliance with such requirements, whether they are of federal or
state origin, or any opinion as to the subsequent tradability of any Shares
issued pursuant to the Plan.
(D) I am admitted to practice law in the State of Utah. I am not admitted
to practice law in the State of Kansas or in any other jurisdiction where the
Company may own property or transact business. This opinion is with respect to
federal law only and I have not consulted legal counsel from any other
jurisdiction for the purpose of the opinion contained herein. I expressly except
from this opinion any opinion as to whether or to what extent a Kansas court or
any other court would apply Kansas law, or the law of any other state or
jurisdiction, to any particular aspect of the facts, circumstances and
transactions that are the subject of this opinion.
(E) This opinion is strictly limited to the parameters contained and
referenced herein and is valid only as of the signature date with respect to the
same. I assume no responsibility to advise you of any subsequent changes or
developments which might affect any aspect of this opinion.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement. This opinion may not be used, relied upon, circulated,
quoted or otherwise referenced in whole or in part for any purpose without my
written consent.
Sincerely,
/s/ Kim Taylor
--------------
Kim Taylor
EXHIBIT "D"
Consent of Accountant
<PAGE>
Jones, Jensen
& Company, LLC
--------------
CERTIFIED PUBLIC ACCOUNTANTS AND CONSULTANTS
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
- --------------------------------------------------
I hereby consent to the to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated May 4, 1998, relating to the financial
statement of Flexweight Corporation as of August 31, 1997.
/s/Jones, Jensen & Company
- --------------------------
Jones, Jensen & Company
September 15, 1998
Salt Lake City, Utah
