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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1 )*
---------
Spire International Corp.
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(Name of Issuer)
Common Stock, $.25 Par Value
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(Title of Class of Securities)
848931-10-1
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(CUSIP Number)
Richard G. Brown
KIMBALL, PARR, WADDOUPS, BROWN & GEE
P.O. Box 11019
Salt Lake City, Utah 84147
(801) 532-7840
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
April 26, 1996
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box / /.
Check the following box if a fee is being paid with this statement / /. (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class
of securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(Continued on following page(s))
Page 1 of 8 Pages
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CUSIP No. 848931-10-1 13D Page 2 of 8 Pages
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(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Douglas D. Yates; SSN: ###-##-####
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(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
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(3) SEC Use Only
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(4) Source of Funds*
00
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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(6) Citizenship or Place of Organization
United States
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power -0-
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 650,711
--------------------------------------------------
(9) Sole Dispositive
Power -0-
--------------------------------------------------
(10) Shared Dispositive
Power 650,711
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
650,711
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
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(13) Percent of Class Represented by Amount in Row (11)
16.7%
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(14) Type of Reporting Person*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION
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CUSIP No. 848931-10-1 13D Page 3 of 8 Pages
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(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Rita S. Yates; SSN: ###-##-####
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(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
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(3) SEC Use Only
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(4) Source of Funds*
00
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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(6) Citizenship or Place of Organization
United States
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Number of Shares (7) Sole Voting
Beneficially Owned Power -0-
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 650,711
--------------------------------------------------
(9) Sole Dispositive
Power -0-
--------------------------------------------------
(10) Shared Dispositive
Power 650,711
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
650,711
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
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(13) Percent of Class Represented by Amount in Row (11)
16.7%
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(14) Type of Reporting Person*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION
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CUSIP No. 848931-10-1 Page 4 of 8 Pages
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This Amendment No. 1 to the Schedule 13D of Douglas D.Yates and Rita
S. Yates amends and supplements, and should be read in conjuction with, the
Schedule 13D filed on April 26, 1996.
ITEM 1. SECURITY AND ISSUER
(a) TITLE OF CLASS OF SECURITIES:
No change.
(b) NAME OF ISSUER:
No change.
(c) ADDRESS OF ISSUER:
No change.
ITEM 2. IDENTITY AND BACKGROUND
(a) NAME:
No change.
(b) RESIDENCE ADDRESS OF THE REPORTING PERSONS:
No change.
(c) PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT:
No change.
(d) CRIMINAL PROCEEDINGS:
No change.
(e) CIVIL PROCEEDINGS:
No change.
(f) CITIZENSHIP:
No change.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Not applicable.
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CUSIP No. 848931-10-1 Page 5 of 8 Pages
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ITEM 4. PURPOSE OF TRANSACTION
Pursuant to a Stock Purchase Agreement, a copy of which is attached hereto
as Exhibit B and incorporated herein by reference (the "Stock Purchase
Agreement"), the Reporting Persons sold a total of 75,000 shares of the Common
Stock owned by them as Trustees of The Rita S. Yates Family Revocable Trust
dated July 1, 1993 (the "Trust") to WVC Holdings, L.P. ("WVC") and William F.
Coffin, Trustee of The William F. Coffin Corporation Defined Benefit Plan
("Coffin Corp.") at a price of $3.00 per share.
Also see Item 6.
The Reporting Persons reserve the right to purchase additional shares of
the Common Stock or to dispose of shares of the Common Stock in the open market,
in privately negotiated transactions or in any other lawful manner in the
future. Except as described above, the Reporting Persons presently have no
plans or proposals which relate to or would result in any action enumerated in
subparagraphs (a) through (j) of the instructions for Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) The Reporting Persons have beneficial ownership of 650,711 shares of
the Common Stock as Trustees of the Trust, which represents 16.7% of the
outstanding shares of the Issuer.
(b) The Reporting Persons share the power to vote, direct the vote,
dispose or direct the disposition of 650,711 shares of the Common Stock.
(c) Effective April 26, 1996, the Reporting Persons sold a total of 75,000
shares of the Common Stock owned by them as Trustees of the Trust to WVC and
Coffin Corp. The shares were sold to WVC and Coffin Corp. at a price of $3.00
per share.
(d) No other person has the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of the 650,711 shares
of the Common Stock in which the Reporting Persons have a beneficial interest.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
No change.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Attached hereto as Exhibit A is a copy of a written agreement relating to
the filing of a joint statement as required by Rule 13d-1(f) under the
Securities Exchange Act of 1934.
Attached hereto as Exhibit B is a copy of the Stock Purchase Agreement.
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CUSIP No. 848931-10-1 Page 6 of 8 Pages
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
5/1/96
- -------------------- By /s/ DOUGLAS D. YATES
Date -------------------------------------
Douglas D. Yates
5/1/96 By /s/ DOUGLAS D. YATES
- -------------------- -------------------------------------
Date Rita S. Yates, by Douglas D. Yates as
Attorney-in-Fact, pursuant to a Power of
Attorney dated April 22, 1996, an
electronically transmitted copy of which is
on file with the Commission and is
incorporated herein by reference.
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CUSIP No. 848931-10-1 Page 7 of 8 Pages
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INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
- ----------------- -----------------------------------------------------------
A Written Agreement relating to the filing of a joint
statement as required by Rule 13d-1(f) under the Securities
Exchange Act of 1934.
B Stock Purchase Agreement.
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CUSIP No. 848931-10-1 Page 8 of 8 Pages
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EXHIBIT A
AGREEMENT
The undersigned agree that this Amendment No. 1 to the Schedule 13D of Douglas
D. Yates and Rita S. Yates relating to shares of common stock of Spire
International Corp. shall be filed on behalf of the undersigned.
/s/ DOUGLAS D. YATES /s/ DOUGLAS D. YATES
- ------------------------------ ----------------------------------
Douglas D. Yates Rita S. Yates, by Douglas D. Yates
as Attorney-in-Fact, pursuant to a
Power of Attorney dated April 22,
1996, an electronically transmitted
copy of which is on file with the
Commission and is incorporated
herein by reference.
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EXHIBIT B
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into this 26th
day of April, 1996, by and between RITA S. YATES and DOUGLAS D. YATES, Trustees,
and any successor trustees, of The Rita S. Yates Family Revocable Trust dated
July 1, 1993, of Utah County, Utah ("Seller"), and WVC Holdings, L.P., by
William F. Coffin general partner ("WVC"), and William F. Coffin, Trustee of
the William F. Coffin Corporation Defined Benefit Plan ("Coffin Corp.") (WVC and
Coffin Corp. are sometimes herein together referred to as the "Purchaser") based
on the following premises.
PREMISES
Seller desires to sell to Purchaser, and Purchase desires to purchase from
Seller, 75,000 shares of the common stock of Spire Technologies International
Corporation, f/k/a Amacan Resources Corporation ("STI") par value $.25 per share
(the "STI Common Stock" or the "Purchased Stock"), at a purchase price of $3.00
per share, all on the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, based on the stated premises, which are incorporated herein
by reference, and for and in consideration of the mutual covenants and
agreements hereinafter set forth and the mutual benefit to the parties to be
derived therefrom, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, it is hereby agreed as follows:
ARTICLE I
PURCHASE AND SALE
Section 1.01 PURCHASE OF STOCK. On the terms and subject to the
conditions contained in this Agreement, Seller hereby sells, transfers, assigns,
conveys, and delivers to Purchaser, and Purchaser hereby purchases from Seller,
the aggregate amount of 75,000 shares of STI Common Stock. Of this amount,
65,000 shares shall be purchased by WVC and 10,000 shares shall be purchased by
Coffin Corp.
Section 1.02 PURCHASE PRICE. The purchase price (the "Purchase Price")
paid by Purchaser to Seller for the Purchased Stock is $3.00 per share of STI
Common Stock, for an aggregate of $225,000, to be paid by wire transfer of
immediately available funds to Seller's account or other means of payment
acceptable to Seller.
ARTICLE II
CLOSING
Section 2.01 CLOSING EVENTS. Contemporaneously with the purchase and
sale of the Purchased Stock hereunder,
(a) Seller has delivered to Purchaser stock certificates
representing all of the Purchased Stock duly endorsed in blank or
accompanied by duly executed stock powers.
(b) Purchaser has delivered to Seller the Purchase Price.
(c) The parties intend that all of the foregoing deliveries
shall be deemed to have taken place simultaneously, except to the extent
that sequential occurrences are appropriate.
Section 2.02 ADDITIONAL DOCUMENTS. In addition to the items identified
in section 2.01 of this Agreement, each of the parties shall execute and
deliver, as of, or any time subsequent to the date of this Agreement, such
additional documents as may be reasonably requested by the other party in order
to effectuate the transactions contemplated by this Agreement.
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ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF THE SELLER
As an inducement to, and to obtain the reliance of, Purchaser, Seller
represents and warrants as follows:
Section 3.01 AUTHORITY. Seller has full power and authority to execute,
deliver, and perform this Agreement. This Agreement is the legal, valid, and
binding agreement of Seller, enforceable between the parties in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
or other laws affecting enforcement of creditors rights generally and by general
principles of equity.
Section 3.02 THIRD-PARTY CONSENTS. Except as provided herein, none of
the contracts, agreements, leases, or other commitments, written or oral, to
which any Seller is a party or to which any of their respective properties or
assets are subject require the consent of any other party in order to consummate
the transactions herein contemplated, except where the failure to obtain such
consent would not have a material adverse effect on the transactions
contemplated herein. Except for the satisfaction of requirements of federal
and state securities and corporation laws, no authorization, approval, consent,
or order of, or registration, declaration, or filing with, any court or other
governmental body is required in connection with the execution and delivery by
any Seller of this Agreement and the consummation by any Seller of the
transactions contemplated hereby.
Section 3.03 NO CONFLICTS WITH OTHER INSTRUMENTS. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof will not,
violate, conflict with, result in a breach of the terms, conditions, or
provisions of, or constitute a default, an event of default, or an event
creating rights of acceleration, termination, or cancellation or a loss of
rights under, any material note, instrument, agreement, mortgage, lease,
license, franchise, permit or other authorization, right, restriction, or
obligation to which any Seller or any of their respective assets are subject or
by which any Seller is bound.
Section 3.04 TITLE TO PURCHASED STOCK. Seller has good and marketable
title to all of the Purchased Stock being sold to Purchaser pursuant to this
Agreement, free and clear of all liens, pledges, charges, or encumbrances. Upon
delivery to Purchaser of the instruments of transfer contemplated by section
2.01, Seller will thereby transfer to Purchaser good and marketable title to the
Purchased Stock being conveyed, subject to no encumbrances.
Section 3.05 INFORMATION. The information concerning STI set forth in
the STI Information Statement dated March 28, 1996 and regarding Seller as set
forth in this Agreement is 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.
ARTICLE IV
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF PURCHASER
As an inducement to, and to obtain the reliance of Seller, WVC and Coffin
Corp. each represents and warrants as follows:
Section 4.01 AUTHORITY. Purchaser has full power and authority to
execute, deliver, and perform this Agreement. This Agreement is the legal,
valid, and binding agreement of Purchaser, enforceable between the parties in
accordance with its terms, except as such enforcement may be limited
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by bankruptcy, insolvency, or other laws affecting enforcement of creditors
rights generally and by general principles of equity.
Section 4.02 THIRD-PARTY CONSENTS. None of the contracts, agreements,
leases, or other commitments, written or oral, to which Purchaser is a party or
to which any of its properties or assets are subject require the consent of any
other party in order to consummate the transactions herein contemplated, except
where the failure to obtain such consent would not have a material adverse
effect on the transactions contemplated herein. Except for the satisfaction of
requirements of federal and state securities and corporation laws, no
authorization, approval, consent, or order of, or registration, declaration, or
filing with, any court or other governmental body is required in connection with
the execution and delivery by Purchaser of this Agreement and the consummation
by Purchaser of the transactions contemplated hereby.
Section 4.03 NO CONFLICTS WITH OTHER INSTRUMENTS. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof will not,
violate, conflict with, result in a breach of the terms, conditions, or
provisions of, or constitute a default, an event of default, or an event
creating rights of acceleration, termination, or cancellation or a loss of
rights under, any material note, instrument, agreement, mortgage, lease,
license, franchise, permit or other authorization, right, restriction, or
obligation to which Purchaser or any of its assets are subject or by which
Purchaser is bound.
Section 4.04 INFORMATION. The information concerning Purchaser set forth
in this Agreement is 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.
ARTICLE V
SPECIAL COVENANTS
Section 5.01 INDEMNIFICATION BY PURCHASER. Purchaser will indemnify and
hold harmless Seller from and against any and all losses, claims, damages,
expenses, liabilities, or actions to which any of them may become subject under
applicable law (including the Securities Act and the Exchange Act) and will
reimburse them for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any claims or actions, whether or not
resulting in liability, insofar as such losses, claims, damages, expenses,
liabilities, or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any application or
statement filed with a governmental body or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary in order to make the statements therein not
misleading, but only insofar as any such statement or omission was made in
reliance upon and in conformity with information furnished in writing by
Purchaser expressly for use therein. Purchaser agrees at any time upon the
request of a Seller to furnish to it a written letter or statement confirming
the accuracy of the information with respect to Purchaser contained in any
report or other application or statement referred to in this Article V, or in
any draft of any such documents, and confirming that the information with
respect to Purchaser contained in such document or draft was furnished by
Purchaser, indicating the inaccuracies or omissions contained in such document
or draft or indicating the information not furnished by Purchaser expressly for
use therein. The indemnity agreement contained in this section 5.01 shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of Seller and shall survive the consummation of the
transactions contemplated by this Agreement.
Section 5.02 INDEMNIFICATION BY SELLER. Seller will indemnify and hold
harmless Purchaser from and against any and all losses, claims, damages,
expenses, liabilities, or actions to which it may become subject under
applicable law (including the Securities Act and the Exchange Act) and will
reimburse it for any legal or other expenses reasonably incurred by it in
connection with investigating or
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defending any claims or actions, whether or not resulting in liability, insofar
as such losses, claims, damages, expenses, liabilities, or actions arise out of
or are based upon any untrue statement or alleged untrue statement of a material
fact contained in any application or statement filed with a governmental body or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein, or necessary in order to make the
statements therein not misleading, but only insofar as any such statement or
omission was made in reliance upon and in conformity with information furnished
in writing by Seller expressly for use therein. Seller agree at any time upon
the request of Purchaser to furnish to it a written letter or statement
confirming the accuracy of the information with respect to Seller contained in
any information/proxy statement, report, or other application or statement
referred to in this Article V, or in any draft of any such document, and
confirming that the information with respect to Seller contained in such
document or draft was furnished by Seller, indicating the inaccuracies or
omissions contained in such document or draft or indicating the information not
furnished by Seller expressly for use therein. The indemnity agreement
contained in this section 5.02 shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of Purchaser and
shall survive the consummation of the transactions contemplated by this
Agreement.
Section 5.03 THE ACQUISITION OF PURCHASED STOCK. The consummation of
this Agreement and the transfer of Common Stock to Purchaser as contemplated
herein, constitutes the offer and sale of securities as those terms are defined
under the Securities Act of 1933, as amended (the "Securities Act"), and
applicable state statutes. Such transactions shall be consummated in reliance
on certain exemptions from the registration requirements of which depend, among
other items, on the circumstances under which such securities are acquired.
(a) In order to provide documentation for reliance upon such
exemptions, the approval by Purchaser and Seller of this Agreement and the
transactions contemplated hereby shall constitute the parties' acceptance
of, and concurrence in, the following representations and warranties (which
are made separately by WVC and Coffin Corp.):
(i) Purchaser acknowledges that neither the Securities
Exchange Commission nor the securities commission of any state or
other federal agency has made any determination as to the merits of
acquiring the Purchased Stock, and that this transaction involves
certain risks.
(ii) Purchaser has received and read the STI Information
Statement dated March 28, 1996 and this Agreement and understand the
risks related to the consummation of the transactions herein
contemplated. The general partner and trustee of Purchaser is
currently acting as an advisor to the board of directors of STI and as
such has had access to such documents and information as it has
desired and further has been afforded the opportunity to ask questions
of and receive answers from the officers and directors of STI.
(iii) Purchaser has such knowledge and experience in business
and financial matters that it is capable of evaluating STI and its
business operations. WVC further acknowledges and represents that it
is an accredited investor as that term is defined in Rule 501 of
Regulation D, promulgated under the Securities Act of 1933, as
amended, in that is partnership, not formed for the specific purpose
of acquiring the Purchased Stock, with total assets in excess of
$5,000,000. Coffin Corp. further acknowledges and represents that it
is an accredited investor as that term is defined in Rule 501 of
Regulation D, promulgated under the Securities Act of 1933, as
amended, in that it is an employee benefit plan that has total assets
in excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited investors.
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(iv) Purchaser has adequate means of providing for its current
needs and possible personal contingencies and has no need now, and
anticipates no need in the foreseeable future, to sell any of the
Purchased Stock. The Purchaser is able to bear the economic risks of
this investment, and consequently, without limiting the generality of
the foregoing, is able to hold the Purchased Stock for an indefinite
period of time, and has a sufficient net worth to sustain a loss of
the entire investment, in the event such loss should occur.
(v) Purchaser is acquiring the Purchased Stock for its own
account and not for resale to others.
(vi) Purchaser understands that the shares of Purchased Stock
have not been registered, but are being acquired by reason of a
specific exemption under federal securities laws as under certain
state statutes.
(vii) The Purchaser acknowledges that the Purchased Stock must
be held and may not be sold, transferred, or otherwise disposed of for
value unless it is subsequently registered or an exemption from such
registration is available. Neither STI nor the Seller is under an
obligation to register the Purchased Stock except as may be set
forth in a separate agreement between STI and Purchaser.
(viii) In connection with the acquisition by the Purchaser of
the Purchased Stock, the Purchaser represents that the Purchased Stock
is being acquired without a view to, or for, resale in connection with
any distribution of such securities or any interest therein without
registration or other compliance under the Securities Act of 1933, as
amended (the "Securities Act"), and that the Purchaser has no direct
or indirect participation in any such undertaking or in the
underwriting of such an undertaking.
The Purchaser understands that the Purchased Stock has not been
registered, but is being acquired by reason of specific exemptions
under the Securities Act as well as under certain state statutes
including exemptions for transactions by non-underwriters and
transactions by an issuer not involving any public offering and that
any disposition of the subject Purchased Stock may, under certain
circumstances, be inconsistent with these exemptions and may make the
Purchaser an "underwriter" within the meaning of the Securities Act.
It is understood that the definition of an "underwriter" focuses on
the concept of "distribution" and that any subsequent disposition of
the Purchased Stock can only be effected in transactions that are not
considered distributions. Generally, the term "distribution" is
considered synonymous with "public offering" or any other offer or
sale involving general solicitation or general advertising. Under
present law, in determining whether a distribution occurs when
securities are sold into the public market, under certain
circumstances one must consider the availability of public information
regarding the issuer, a holding period for the securities sufficient
to assure that the persons desiring to sell the securities without
registration first bear the economic risk of their investment, and a
limitation on the number of shares which the stockholder is permitted
to sell and on the manner of sale, thereby reducing the potential
impact of the sale on the trading markets. These criteria are set
forth specifically in rule 144 promulgated under the Securities Act.
After two years have elapsed between the later of the date of the
acquisition of the Purchased Stock from the issuer or an affiliate of
the issuer, provided that the holding period shall not commence until
the full purchase price is paid, all as calculated in accordance with
rule 144(d), sales of the Purchased Stock in reliance on
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rule 144 can only be made in limited amounts in accordance with the
terms and conditions of that rule. After three years have elapsed
between the later of the date of the acquisition of the Purchased
Stock from the issuer or an affiliate of the issuer, provided that the
holding period shall not commence until the full purchase price is
paid, as calculated in accordance with rule 144(d), the Purchased
Stock can generally be sold without meeting these conditions, provided
the holder is not (and has not been for the preceding three months) an
affiliate of the issuer.
The Purchaser acknowledges that the shares of Purchased Stock must be
held and may not be sold, transferred, or otherwise disposed of for
value unless they are subsequently registered under the Securities Act
or an exemption from such registration is available; the issuer is
under no obligation to register the Securities under the Securities
Act or under section 12 of the Securities Exchange Act of 1934, as
amended, except as may expressly agreed to by it in writing; if
rule 144 is available, and no assurance is given that it will be,
initially only routine sales of such Purchased Stock in limited
amounts can be made in reliance on rule 144 in accordance with
the terms and conditions of that rule; the issuer is under no
obligation to the Purchaser to make rule 144 available, except
as may be expressly agreed to by it in writing; in the event
rule 144 is not available, compliance with regulation A
promulgated under the Securities Act or some other disclosure
exemption may be required before the Purchaser can sell, transfer, or
otherwise dispose of such Purchased Stock without registration under
the Securities Act; the issuer's registrar and transfer agent will
maintain a stop transfer order against the registration of transfer of
the Securities; and the certificate representing the Purchased Stock
will bear a legend in substantially the following form so restricting
the sale of such Purchased Stock.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ARE "RESTRICTED SECURITIES" WITHIN THE MEANING
OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED
WITHOUT COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES ACT.
The issuer may refuse to register transfer of the Purchased Stock in
the absence of compliance with rule 144 unless the Purchaser furnishes
the issuer with a "no-action" or interpretative letter from the
Securities and Exchange Commission or an opinion of counsel
reasonabley acceptable to the issuer stating that the transfer is
proper; further, unless such letter or opinion states that the
securities are free of any restrictions under the Securities Act,
the issuer may refuse to transfer the Purchased Stock to any
transferee who does not furnish in writing to the issuer the
same representations and agree to the same conditions with
respect to such securities as set forth herein. The issuer may also
refuse to transfer the Purchased Stock if any circumstances are
present reasonably indicating that the transferee's representations
are not accurate.
(b) In order to more fully document reliance on the exemptions as
provided herein, Purchaser shall execute and deliver to Seller such further
letters of representation, acknowledgment, suitability, or the like, as
Seller and their counsel may reasonably request in connection with reliance
on exemptions from registration under such securities laws.
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(c) Seller and Purchaser acknowledge that the basis for relying on
exemptions from registration or qualifications are factual, depending on
the conduct of the various parties, and that no legal opinion or other
assurance will be required or given to the effect that the transactions
contemplated hereby are in fact exempt from registration or qualification.
ARTICLE VI
MISCELLANEOUS
Section 6.01 NO BROKERS. Purchaser and Seller agree that no third person
has in any way brought the parties together or been instrumental in the
negotiation, execution, or consummation of this Agreement. Purchaser and Seller
each agree to indemnify the other against any claim by any third person for any
commission, brokerage, finder's fee, or other payment with respect to this
Agreement or the transactions contemplated hereby based upon any alleged
agreement or understanding between such party and such third person, whether
expressed or implied, arising from the actions of such party. The covenants set
forth in this section 6.01 shall survive the date hereof and the consummation of
the transactions herein contemplated.
Section 6.02 GOVERNING LAW. This Agreement shall in all respects,
including all matters of construction, validity, and performance, be governed
by, and construed and enforced in accordance with, the laws of the state of Utah
applicable to contracts entered into in that state between citizens of that
state and to be performed wholly within that state without reference to any
rules governing conflicts of laws.
Section 6.03 NOTICES. All notices, demands, requests, or other
communications required or authorized hereunder shall be deemed given
sufficiently if in writing and if personally delivered; if sent by facsimile
transmission, confirmed with a written copy thereof sent by overnight express
delivery; if sent by registered mail or certified mail, return receipt requested
and postage prepaid; or if sent by overnight express delivery, to the address
set forth below the signature of each party below, or such other addresses and
facsimile numbers as shall be furnished in writing by any party in the manner
for giving notices hereunder, and any such notice, demand, request, or other
communication shall be deemed to have been given as of the date personally
delivered or on the first business day after a legible copy sent by facsimile
transmission is received, three days after the date mailed by registered or
certified mail, or on the first business day after the date sent by overnight
delivery.
Section 6.04 ATTORNEY'S FEES. In the event that any party institutes and
prevails in any action or suit to enforce this Agreement or to secure relief
from any default hereunder or breach hereof, the defaulting or breaching party
or parties shall reimburse the nonbreaching party or parties for all costs,
including reasonable attorneys' fees, incurred in connection therewith and in
enforcing or collecting any judgment rendered therein.
Section 6.05 SURVIVAL: TERMINATION. The representations, warranties,
and covenants of the respective parties as set forth is this Agreement shall
survive the closing and consummation of the transactions contemplated by this
Agreement for a period of two years from the date of this Agreement.
Section 6.06 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 6.07 AMENDMENT OR WAIVER. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and may be enforced concurrently herewith, and no waiver
by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. This Agreement may be amended by a writing
signed by all parties hereto, with respect to any of the terms contained herein,
and any term or condition of this Agreement may be waived or the time for
performance thereof may be extended by a writing signed by the party or parties
for whose benefit the provision is intended.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
Seller:
The Rita S. Yates Family Revocable Trust
/s/ Rita S. Yates
- -----------------------------------
Rita S. Yates, Trustee
Address: 797 North 500 West
Lehi, Utah 84043
Purchaser:
WVC Holdings, L.P.
By: /s/ William F. Coffin
- -----------------------------------
William F. Coffin, General Partner
Address: 15300 Ventura Blvd., Suite 303
Sherman Oaks, California 91403
Tax ID# 95-4253530
William F. Coffin, Trustee of the William F. Coffin Corporation Defined Benefit
Plan
By: /s/ William F. Coffin
- -----------------------------------
William F. Coffin, Trustee
Address: 15300 Ventura Blvd., Suite 303
Sherman Oaks, California 91403
Tax ID# 95-3903793
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