SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
AMENDMENT TO
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
DATE OF REPORT: JULY 19, 1996
CASMYN CORP.
(Exact name of registrant as specified in Charter)
COLORADO
(State or other jurisdiction of incorporation)
0-14136
(Commission File Number)
84-0987840
(IRS Employer Identification No.)
1335 GREG STREET, UNIT #104
SPARKS, NEVADA 89431
(702)331-5524
(Address and Telephone Number of Principal Executive Offices)
__________________________________________________________________________
(Former name or former address, if changes since last report)
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On May 24, 1996, Casmyn Corp. (the "Company"), issued 606,061 common
shares in exchange for 5,680,514 shares of restricted common stock of
WestAmerica Corporation ("WestAmerica"), approximately a 65% interest. The
Company has accounted for the transaction using the equity method since the
shares acquired are subject to a repurchase agreement by WestAmerica and have
been placed in a voting trust controlled by an officer and director of
WestAmerica. As such the Company exercises no effective control over the
operations or management of WestAmerica, however, the Company has the power to
appoint two out of five board members. The transaction has been valued at
approximately $6,970,000 which was calculated based upon an $11.50 per common
share value for the Company's common stock. This value reflects a discount
from recent similar sized transactions due to the restricted nature of the
shares issued in the transaction.
ITEM 7. FINANCIAL STATEMTENTS AND EXHIBITS
(A) FINANCIAL STATEMENTS OF WESTAMERICA CORPORATION
The financial statements of WestAmerica Corporation as filed with the
Securities and Exchange Commission on Form 10-KSB for the fiscal year ended
March 31, 1996 are incorporated herein by reference.
(B) PRO FORMA FINANCIAL INFORMATION
These pro forma financial statements have been prepared to show the effect of
the acquisition on May 24, 1996 of 5,680,514 shares of WestAmerica Corporation
common stock (approximately a 65% interest) in exchange for 606,061 common
shares of the Company. This investment has been accounted for using the
equity method.
The pro forma consolidated statements of operations show what the results of
the Company's operations would have been for the fiscal year ended September
30, 1995 and the six months ended March 31, 1996 had the acquisitions been
completed on October 1, 1994. The pro forma balance sheet as of March 31,
1996 assumes the acquisition described above occurred on March 31, 1996.
<PAGE>
CASMYN CORP.
PRO FORMA CONSOLIDATED BALANCE SHEET
MARCH 31, 1996
(IN THOUSANDS)
<TABLE>
<CAPTION>
Casmyn Corp. Acquisitions Pro Forma as
Actual Entries Adjusted
CURRENT ASSETS:
<S> <C> <C> <C>
Cash and cash equivalents $ 12,028 $ - $ 12,028
Accounts receivable, net 337 - 337
Inventories 909 - 909
Prepaid expenses and
other assets 97 - 97
---------- --------- ----------
Total Current Assets 13,371 - 13,371
---------- --------- ----------
Investment in related party 204 - 204
Equipment and Improvements, net 1,302 - 1,302
Mineral Properties 6,740 - 6,740
Investments in WestAmerica Corp. - 6,970 (a) 6,970
Other Assets 1,311 - 1,311
---------- --------- ----------
Total Assets $ 22,928 $ 6,970 $ 29,898
========== ========= ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITES:
Accounts payable and accrued
liabilities $ 2,876 $ - $ 2,876
Due to Related Parties, net 119 - 119
---------- --------- ----------
Total Current Liabilities 2,995 - 2,995
---------- --------- ----------
Convertible Debt 5,000 - 5,000
---------- --------- ----------
STOCKHOLDERS' EQUITY:
Preferred stock,$.10 par value;
20,000,000 shares authorized;
2,707,000 shares issued and
outstanding 271 - 271
Common stock, $.04 par value;
300,000,000 shares authorized;
6,675,931 shares issued and
outstanding 267 24 (a) 291
Additional paid-in capital 20,958 - 27,904
Accumulated deficit ( 6,490) - ( 6,490)
Foreign currency translation
adjustment ( 73) - ( 73)
---------- --------- ----------
Total Stockholders' Equity 14,933 - 21,903
---------- --------- ----------
Total Liabilities and
Stockholders' Equity $ 22,928 $ 6,970 $ 29,898
========== ========= ==========
See Notes to Pro Forma Consolidated Financial Statements
<PAGE>
CASMYN CORP.
PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED MARCH 31, 1996
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
</TABLE>
<TABLE>
<CAPTION>
Casmyn Corp Acquisitions Pro Forma as
Actual Entries Adjusted
<S> <C> <C> <C>
Sales $ 660 - $ 660
Cost of Goods Sold 434 - 434
---------- ---------- ----------
Gross Profit 226 - 226
---------- ---------- ----------
Costs and expenses:
General and administrative 2,772 - 2,772
Depreciation, depletion and
amortization 48 - 48
Mineral exploration expense 320 - 320
Resarch & development 166 - 166
---------- ---------- ----------
3,306 - 3,306
---------- ---------- ----------
Loss from operations ( 3,080) - ( 3,080)
---------- ---------- ----------
Other income (expense):
Minority interest in net loss
of subsidiary 499 - 499
Equity in net income of
unconsolidated affiliate - 47 (b) 47
Other 159 - 159
---------- ---------- ----------
Other income, net 658 47 705
---------- ---------- ----------
Net income (loss) $ ( 2,422) $ 47 $ ( 2,375)
========== ========== ==========
Income (loss) per common share $ ( .41) $ .05 $ ( .36)
========== ========== ==========
Weighted average number of
common shares outstanding 5,942 606 6,548
========== ========== ==========
See Notes to Pro Forma Consolidated Financial Statements
<PAGE>
CASMYN CORP.
PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED SEPTEMBER 30, 1995
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
</TABLE>
<TABLE>
<CAPTION>
Casmyn Corp Acquisitions Pro Forma as
Actual Entries Adjusted
<S> <C> <C> <C>
Sales $ 382 - $ 382
Cost of Goods Sold 490 - 490
---------- ---------- ----------
Gross Profit ( 108) - ( 108)
---------- ---------- ----------
Costs and expenses:
General and administrative 4,998 - 4,998
Depreciation, depletion and
amortization 99 - 99
Mineral exploration expense 1,010 - 1,010
Resarch & development 185 - 185
---------- ---------- ----------
6,292 - 6,292
---------- ---------- ----------
Loss from operations ( 6,400) - ( 6,400)
---------- ---------- ----------
Other income (expense):
Minority interest in net loss
of subsidiary 3,502 - 3,502
Equity in net income of
unconsolidated affiliate - ( 321)(b) ( 321)
Other ( 177) - ( 177)
---------- ---------- ----------
Other income, net 3,325 ( 321) 3,004
---------- ---------- ----------
Net income (loss) $ ( 3,075) $ ( 321) $ ( 3,396)
========== ========== ==========
Income (loss) per common share $ ( .40) $ ( .01)(c) $ ( .41)
========== ========== ==========
Weighted average number of
common shares outstanding 7,651 606 8,257
========== ========== ==========
See Notes to Pro Forma Consolidated Financial Statements
<PAGE>
CASMYN CORP.
NOTES TO PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
The pro forma adjustments and eliminations are as follows:
(a) Represents an adjustment for the issuance of 606,061 common shares under
an agreement dated May 24, 1996 for the acquisition of 5,680,514 common shares
of WestAmerica (approximately a 65% interest). The Company has accounted for
the transaction using the equity method, since the shares acquired are subject
to a repurchase agreement by WestAmerica and have been placed in a voting
trust controlled by an officer and director of WestAmerica. The transaction
has been valued at approximately $6,970,000, which was calculated based upon a
value of $11.50 per common share for the Company's common stock. This value
reflects a discount from recent similar sized transactions due to the
restricted nature of the shares issued in the transaction.
(b) To record the Company's equity in the income (loss) of WestAmerica. The
financial statements have been adjusted to reflect depletion expense that
would have been recorded in the periods presented had the transaction occurred
on October 1, 1994. The depletion expense pertaining to oil and gas
production was determined by dividing the excess of the purchase price of
WestAmerica over the Company's portion of the net assets of WestAmerica by the
estimated reserves.
(c) To increase the net loss per share to give effect to changes in net loss
as described above and issuance of additional shares.
<PAGE>
EXHIBITS
Exhibit No. Description Page No.
99.1 Stock Purchase Agreement between Casmyn Corp.
and WestAmerica Corporation 8
99.2 Agreement between Casmyn Corp., WestAmerica
Corporation and Edward W. Foraker 19
23.1 Consent of Independent Auditors 26
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated this 19th day of July, 1996.
Casmyn Corp.
a Colorado corporation
/s/ Dennis E. Welling
By___________________________________
Dennis E. Welling
Controller
</TABLE>
<PAGE>
EXHIBIT 99.1
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into this 24th day of May, 1996, by and
between WestAmerica Corporation, an Oklahoma corporation ("Seller"), and
Casmyn Corp., a Colorado corporation ("Buyer").
W I T N E S S E T H:
This Agreement is made and entered into with reference to the following
facts:
A. Seller is a public corporation and desires to sell to Buyer
5,680,514 newly-issued, restricted shares of its Common Stock, par value $.Ol
(the "Shares").
B. Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, the Shares upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, and other good and valuable consideration, receipt of
which is hereby acknowledged, it is agreed by the parties as follows:
1. Sale of Shares. Seller shall sell and Buyer shall purchase the
Shares free and clear of all liens and encumbrances.
2. Consideration. The total consideration for the Shares shall be six
hundred and six thousand and-sixty one (606,061) newly-issued, restricted
shares of Common Stock of Casmyn Corp., par value $.04 (the "Casmyn
Shares").
3. Closing. The closing of the purchase and sale of the Shares (the
"Closing") shall take place as soon as possible after execution of this
Stock Purchase Agreement at the law offices of Michael J. Morrison, Chtd.,
1025 Ridgeview Drive, Suite 400, Reno, Nevada 89509, unless a different
date or place is agreed to in writing by the parties hereto. At the
Closing, Seller shall deliver to Buyer a certificate representing the
Shares against delivery to Seller by Buyer of a certificate for the Casmyn
Shares. The parties shall execute any and all documents necessary to
comply with applicable federal and state laws, rules and regulations
pertaining to the transaction.
4. Representations and Warranties of Seller. Seller represents and
warrants to Buyer as follows:
A. Seller is a corporation duly organized and existing under, and by
virtue of, the laws of the State of Oklahoma and is in good standing under
such laws. Seller has the requisite corporate power to own and operate its
properties and assets, and to carry on its business as presently conducted
and as proposed to be conducted. Seller is qualified, licensed or
domesticated as a foreign corporation in all jurisdictions where the nature
of its activities or of its properties owned or leased makes such
qualification, licensing or domestication necessary at this time. Seller has
furnished Buyer with copies of its Articles of Incorporation and Bylaws.
Said copies are true, correct and complete and contain all amendments through
the date of this Agreement.
B. Seller has now, or will have at the Closing, all requisite legal
and corporate power to enter into this Agreement, to sell the Shares
hereunder, and to carry out and perform its obligations under the terms of
this Agreement.
<PAGE>
C. The authorized capital stock of Seller consists of 10,000,000
shares of Common Stock, par value $.01; 1,000,000 shares of Non-voting
Convertible Preferred Stock, par value $.01; and 1,000,000 shares of
Non-voting, Non-convertible Series "B" Preferred Stock. There are issued and
outstanding 3,062,009 shares of Common Stock. 100,000 shares of Preferred,
Non-Voting Convertible Stock; and 100,000 shares of Cumulative,
Non-Convertible, Non-Voting Series B Preferred Stock, all of which have been
duly authorized and validly issued, are fully paid and non-assessable.
Except for 130,000 outstanding Warrants, and 35,000 outstanding options,
there are no outstanding rights, options, conversion rights or agreements for
the purchase or acquisition from Seller of any shares of its capital stock.
D. All corporate action on the part of Seller, its officers,
directors and stockholders necessary for the sale and issuance of the Shares
pursuant hereto and the performance of Seller's obligations hereunder has
been taken or will be taken prior to the Closing. This Agreement is a legal,
valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application affecting
enforcement of creditors' rights and except as limited by application of
legal principles affecting the availability of equitable remedies.
E. The Shares, when issued in compliance with the provisions of this
Agreement, will be validly issued, fully paid and non-assessable, and will be
free of any liens or encumbrances; provided, however, that such shares may be
subject to restrictions on transfer under state and/or federal securities
laws as set forth herein, and as may be required by future changes in such
laws.
F. No shareholder of Seller has any right of first refusal or any
preemptive rights in connection with the issuance of the Shares by Seller.
G. Seller has not entered into any other contracts to sell, mortgage,
encumber or assign the Shares.
H. The Shares have not been registered under the Securities Act
and/or any applicable state securities laws in reliance upon an exemption
provided by Section 4(2) of the Securities Act and Regulation D, and
exemptions under applicable state securities laws relating to transactions
not involving a public offering.
I. Seller's audited balance sheet and statement of income and
expenses for the fiscal year ended March 31, 1995 and Seller's unaudited
balance sheet and statement of income and expenses for the nine-month period
ended December 31, 1995 (the "Financial Statements") have been supplied to
Buyer, are true and correct, have been prepared in accordance with generally
accepted accounting principles consistently applied (except as disclosed
therein and except that the Financial Statements may not contain the
footnotes required by generally accepted accounting principles), and fairly
present the financial condition of Seller and the results of the operations
of Seller as of the date thereof, and except for normal year-end adjustments
which would not have any material adverse effect on such statements..
<PAGE>
J. Since March 31, 1996(a) neither Seller nor its Subsidiaries have
entered into any transaction which was not in the ordinary course of
business; (b) there has been no materially adverse change in the condition
(financial or otherwise), of the business, property, assets, or liabilities
of the Seller or its Subsidiaries other than changes in the ordinary course
of business, none of which has been materially adverse; (c) there has been no
damage to, destruction of or loss of physical property (whether or not
covered by insurance) materially adversely affecting the business or
operations of Seller or its Subsidiaries; (d) Seller has not declared or
paid any dividend or made any distribution on its stock, redeemed, purchased
or otherwise acquired any of its stock, granted any options to purchase
shares of its stock, or issued any shares of its stock; (e) neither Seller
nor its Subsidiaries have martially increased the compensation of any
officer, or the rate of pay of employees as a group, except as part of
regular compensation increases in the ordinary course of business; (f) Seller
has not received notice that there has been a loss of any major customer of
Seller or its Subsidiaries, nor any material order of cancellation; (g) there
has been no resignation or termination of employment of any key officer or
employee of Seller or its Subsidiaries and Seller does not know of the
impending resignation or termination of employment of any key officer or
employee of Seller or its Subsidiaries that, if consummated, would have a
materially adverse effect on the business of Seller and/or its Subsidiaries;
(h) there has been no labor dispute involving Seller or its Subsidiaries or
their employees and none is pending or, to the best of Seller's knowledge,
threatened; and (i) to the best knowledge of Seller, after due-inquiry, there
has been no other event or condition of any character pertaining to and/or
materially adversely affecting the assets or business of Seller or its
Subsidiaries.
K. All the material contracts, commitments, agreements and
instruments to which Seller is a party are legal, valid, binding and in full
force and effect in all material respects and enforceable by Seller in
accordance with their terms except as limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws of general application affecting
enforcement of creditors' rights, and except as limited by application of
legal principles affecting the availability of equitable remedies. Seller
is not in material default under any of such contracts.
L. Except as disclosed in Schedule 1 attached hereto, there are no
actions, proceedings or investigations pending (or, to the best of Seller's
knowledge, any basis therefor or threat thereof), which, either individually
or in the aggregate, might result in any adverse change in the business,
prospects, conditions, affairs or operations of Seller or in any of its
properties or assets, or in any impairment of the right or ability of Seller
to carry on its business as proposed to be conducted, or in-any material
liability on the part of Seller, or which question the validity of this
Agreement or any action taken or to be taken in connection herewith.
M. To the best knowledge of the Seller, the offer, sale and issuance
of the Shares in conformity with the terms of this Agreement will not violate
applicable state and federal securities laws.
N. Seller and its Subsidiaries have timely filed all tax returns that
are required to have been filed by them prior to the date of this Agreement
with the appropriate federal, state, county and local governmental agencies
or instrumentalities, and each of said returns correctly reflects such
corporation's income and its tax liability required to be shown therein.
Seller and its Subsidiaries have paid or established reserves for all income,
franchise and other taxes due by them, respectively, as reflected on said
returns. The provisions for taxes due by Seller and its Subsidiaries as
shown in the Financial Statements are sufficient for the payment in full of
all unpaid federal, state, county and local taxes in respect of their
respective businesses and operations for the period then ended and all prior
periods. There is no pending dispute with any taxing authority relating to
any of said returns which if determined adversely to the taxpayer corporation
would result in the assertion by any taxing authority of any valid deficiency
in a material amount for taxes. No federal income tax returns of Seller or
its Subsidiaries have been audited.
0. This Agreement, the exhibits thereto, the Financial Statements,
and all certificates delivered to Buyer pursuant to this Agreement, when read
together, do not contain any untrue statement of a material fact and do not
omit to state a material fact necessary in order to make the statements
contained therein or herein not misleading. There is, to the best of
Seller's knowledge, no fact which materially adversely affects the business,
prospects, condition, affairs or operations of Seller, or any of its
properties or assets, which has not been set forth in this Agreement, the
exhibits hereto (if any), or the Financial Statements.
<PAGE>
P. Seller represents that it understands that it is purchasing the
Casmyn Shares and that the same have not been registered under the Securities
Act and/or any applicable state securities laws in reliance upon an exemption
provided by Section 4(2) of the Securities Act and Regulation D relating to
transactions not involving a public offering.
Q. Seller represents that the Casmyn Shares are being acquired from
buyer solely for its own account, for investment, and are not being purchased
with a view to or for the resale or distribution thereof and that Buyer has
no present plans to enter into any contract, undertaking, agreement or
arrangement for such resale or distribution.
R. Seller is aware of the existence of substantial restrictions on
the transferability of the Casmyn Shares.
S. Seller may not be able to avail itself of the provisions of Rule
144 adopted by the Securities and Exchange Commission under the Securities
Act or any applicable state securities acts with respect to the release of
the Casmyn Shares, and, accordingly, it may not be possible for Seller to
liquidate part or all of its investment in the Casmyn Shares.
T. Seller is aware that the Buyer is under no duty to register the
Casmyn Shares or comply with any exemption from registration under the
Securities Act or any state securities law, including supplying to the
appropriate agency or to Seller any information required in connection with
transfers under appropriate rules and regulations.
U. Seller is an "Accredited Investor," as that term is defined in
Regulation D promulgated under the Securities Act.
V. The certificate representing the Casmyn Shares may be endorsed
with the following legends:
(a) "THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS
MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN
OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY
TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION
IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH
ACT."
(b) Any other legend required by Colorado or other state
securities laws.
Buyer need not register a transfer of legended Casmyn Shares and may also
instruct its transfer agent not to register the transfer of the Casmyn Shares
unless one of the conditions specified in each of the foregoing legends is
satisfied.
The foregoing representations and warranties shall be true and accurate as of
the date of this Agreement.
5. Representations and Warranties of Buyer.
A. Buyer is a corporation duly organized and existing under, and by
virtue of, the laws of the State of Colorado and is in good standing under
such laws. Buyer has the requisite corporate power to own and operate its
properties and assets, and to carry on its business as presently conducted
and as proposed to be conducted. Seller is qualified, licensed or
domesticated as a foreign corporation in all jurisdictions where the nature
of its activities or of its properties owned or leased makes such
qualification, licensing or domestication necessary and except where the
failure to so qualify would not have a material adverse effect. Buyer has
furnished Seller with copies of its Articles of Incorporation and Bylaws.
Said copies are true, correct and complete and contain all amendments through
the date of this Agreement.
<PAGE>
B. Buyer has now, or will have at the Closing, all requisite legal
and corporate power to enter into this Agreement, to sell the Casmyn Shares
hereunder, and to carry out and perform its obligations under the terms of
this Agreement.
C. The authorized capital stock of Buyer consists of 100,000,000
shares of Common Stock, par value $.04; 20,000,000 shares of Convertible
Preferred Stock, par value $.10. There are issued and outstanding 9,382,931
shares of Common Stock; 2,707,000 shares of Convertible Preferred Stock, all
of which have been duly authorized and validly issued, are fully paid and
non-assessable. In addition, 2,471,476 shares of Common Stock are reserved
for the exercise of certain Warrants and Options. There are no other
outstanding rights and options, conversion rights or agreements for the
purchase or acquisition from Buyer of any shares of its capital stock.
D. All corporate action on the part of Buyer, its officers, directors
and stockholders necessary for the sale and issuance of the Casmyn Shares
pursuant hereto and the performance of Buyer's obligations hereunder has been
taken or will be taken prior to the closing. This Agreement is a legal,
valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application affecting
enforcement of creditors' rights and except as limited by application of
legal principles affecting the availability of equitable remedies.
E. The Casmyn Shares, when issued in compliance with the provisions
of this Agreement, will be validly issued, fully paid and non-assessable, and
will be free of any liens or encumbrances; provided, however, that such
shares may be subject to restrictions on transfer under state and/or federal
securities laws as set forth herein, and as may be required by future changes
in such laws.
F. No shareholder of Buyer has any right of first refusal or any
preemptive rights in connection with the issuance of the Casmyn Shares by
Buyer.
G. Buyer has not entered into any other contracts to sell, mortgage,
encumber or assign the Casmyn Shares.
H. The Casmyn Shares have not been registered under the Securities
Act and/or any applicable state securities laws in reliance upon an exemption
provided by Section 4(2) of the Securities Act and Regulation D, and
exemptions under applicable state securities laws relating to transactions
not involving a public offering.
I. Buyer's audited balance sheet and statement of income and expenses
for the fiscal year ended September 30, 1995 and Seller's unaudited balance
sheet and statement of income and expenses for the periods ended December 31,
1995 and March 31, 1996 (the "Financial Statements") have been supplied to
Seller, are true and correct, have been prepared in accordance with generally
accepted accounting principles consistently applied (except as disclosed
therein and except that the Financial Statements may not contain the
footnotes required by generally accepted accounting principles), and fairly
present the financial condition of Seller and the results of the operations
of Seller as of the date thereof, and except for normal year-end adjustments
which would not have any material adverse effect on such statements.
<PAGE>
J. Since March 31, 1996(a) neither Buyer nor its Subsidiaries have
entered into any transaction which was not in the ordinary course of
business; (b) there has been no materially adverse change in the condition
(financial or otherwise), of the business, property, assets, or liabilities
of the Buyer or its Subsidiaries other than changes in the ordinary course of
business, none of which has been materially adverse; (c) there has been no
damage to, destruction of or loss of physical property (whether or not
covered by insurance) materially adversely affecting the business or
operations of Buyer or its Subsidiaries; (d) Buyer has not declared or paid
any dividend or made any distribution on its stock, redeemed, purchased or
otherwise acquired any of its stock, granted any options to purchase shares
of its stock, or issued any shares of its stock; (e) neither Buyer nor its
Subsidiaries have martially increased the compensation of any officer, or the
rate of pay of employees as a group, except as part of regular compensation
increases in the ordinary course of business; (f) Buyer has not received
notice that there has been a loss of any major customer of Buyer or its
Subsidiaries, nor any material order of cancellation; (g) there has been no
resignation or termination of employment of any key officer or employee of
Buyer or its Subsidiaries and Buyer does not know of the impending
resignation or termination of employment of any key officer or employee of
Buyer or its Subsidiaries that, if consummated, would have a materially
adverse effect on the business of Buyer and/or its Subsidiaries; (h) there
has been no labor dispute involving Buyer or its Subsidiaries or their
employees and none is pending or, to the best of Buyer's knowledge,
threatened; and (i) to the best knowledge of Seller, after due-inquiry, there
has been no other event or condition of any character pertaining to and/or
materially adversely affecting the assets or business of Buyer or its
Subsidiaries.
K. All the material contracts, commitments, agreements and
instruments to which Buyer is a party are legal, valid, binding and in full
force and effect in all material respects and enforceable by Buyer in
accordance with their terms except as limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws of general application affecting
enforcement of creditors' rights, and except as limited by application of
legal principles affecting the availability of equitable remedies. Buyer is
not in material default under any of such contracts.
L. Except as disclosed in Schedule 2 attached hereto, there are no
actions, proceedings or investigations pending (or, to the best of Buyer's
knowledge, any basis therefor or threat thereof), which, either individually
or in the aggregate, might result in any adverse change in the business,
prospects, conditions, affairs or operations of Buyer or in any of its
properties or assets, or in any impairment of the right or ability of Buyer
to carry on its business as proposed to be conducted, or in-any material
liability on the part of Buyer, or which question the validity of this
Agreement or any action taken or to be taken in connection herewith.
M. To the best knowledge of the Seller, the offer, sale and issuance
of the Casmyn Shares in conformity with the terms of this Agreement will not
violate applicable state and federal securities laws.
N. Buyer and its Subsidiaries have timely filed all tax returns that
are required to have been filed by them prior to the date of this Agreement
with the appropriate federal, state, county and local governmental agencies
or instrumentalities, and each of said returns correctly reflects such
corporation's income and its tax liability required to be shown therein.
Buyer and its Subsidiaries have paid or established reserves for all income,
franchise and other taxes due by them, respectively, as reflected on said
returns. The provisions for taxes due by Buyer and its Subsidiaries as shown
in the Financial Statements are sufficient for the payment in full of all
unpaid federal, state, county and local taxes in respect of their
respective businesses and operations for the period then ended and all prior
periods. There is no pending dispute with any taxing authority relating to
any of said returns which if determined adversely to the taxpayer corporation
would result in the assertion by any taxing authority of any valid deficiency
in a material amount for taxes. No federal income tax returns of Seller or
its Subsidiaries have been audited.
<PAGE>
0. This Agreement, the exhibits thereto, the Financial Statements,
and all certificates delivered to Seller pursuant to this Agreement, when
read together, do not contain any untrue statement of a material fact and do
not omit to state a material fact necessary in order to make the statements
contained therein or herein not misleading. There is, to the best of Buyer's
knowledge, no fact which materially adversely affects the business,
prospects, condition, affairs or operations of Seller, or any of its
properties or assets, which has not been set forth in this Agreement, the
exhibits hereto (if any), or the Financial Statements.
P. Buyer represents that it understands that it is purchasing the
Shares and that the same have not been registered under the Securities Act
and/or any applicable state securities laws in reliance upon an exemption
provided by Section 4(2) of the Securities Act and Regulation D relating to
transactions not involving a public offering.
Q. Buyer represents that the Shares are being acquired solely for its
own account, for investment, and are not being purchased with a view to or
for the resale or distribution thereof and that Buyer has no present plans to
enter into any contract, undertaking, agreement or arrangement for such
resale or distribution.
R. Buyer is aware of the existence of substantial restrictions on the
transferability of the Shares.
S. Buyer may not be able to avail itself of the provisions of Rule
144 adopted by the Securities and Exchange Commission under the Securities
Act or any applicable state securities acts with respect to the release of
the Shares, and, accordingly, it may not be possible for Buyer to liquidate
part or all of its investment in the Shares.
T. Buyer is aware that the Company is under no duty to register the
Shares or comply with any exemption from registration under the Securities
Act or any state securities law, including supplying to the appropriate
agency or to Buyer any information required in connection with transfers
under appropriate rules and regulations.
U. Buyer is an "Accredited Investor," as that term is defined in
Regulation D promulgated under the Securities Act.
V. The certificate representing the Shares may be endorsed with the
following legends:
(a) "THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS
MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN
OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY
SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT."
(b) Any other legend required by Oklahoma or other state
securities laws.
<PAGE>
Seller need not register a transfer of legend Shares and may also instruct its
transfer agent not to register the transfer of the Shares unless one of the
conditions specified in each of the foregoing legends is satisfied.
The foregoing representations and warranties shall be true and accurate as of
the date of this Agreement.
6. Obligations Upon Closing. At the time of Closing of this
transaction:
A. Seller shall deliver to Buyer a newly-issued certificate for the
Shares.
B. Buyer shall deliver to Seller a newly-issued certificate for the
Casmyn Shares.
C. The parties shall both execute appropriate stock subscription
documents approved by their respective counsel.
D. The parties shall both execute a separate agreement relating to
voting of its Shares, which is attached hereto as Schedule 3.
7. Indemnity of Seller. Seller shall indemnify Buyer against any
loss, damage, cost or expense that Buyer may incur or suffer as a result of
any breach, untruth or inaccuracy of any promise, agreement, covenant,
warranty or representation made by Seller herein for the benefit of Buyer.
8. Indemnity of Buyer. Buyer shall indemnify Seller against any
loss, damage, cost or expense that Seller may incur or suffer as a result
of any breach, untruth or inaccuracy of any promise, agreement, covenant,
warranty or representation made by Buyer herein for the benefit of Seller.
9. Broker's Fees. The parties warrant to and with each other that
the transaction evidenced by this Agreement was initiated, negotiated and
completed by the parties hereto directly, as principals, and without the
intervention of any broker, dealer, agent or finder. Each party agrees to
indemnify and hold the other party harmless from and against any loss,
damage, cost or expense, including without limitation, attorneys' fees and
litigation expenses, resulting from any breach or breaches of the foregoing
warranty.
10. Third Party Consents. The parties shall use their commercially
reasonable best efforts to obtain, if necessary, such written consents,
authorizations, approvals, waivers and consents as may be required from
third parties in connection with this transaction.
11. Conditions to Buyer's Obligations at Closing. The obligations of
Buyer to Seller under this Agreement are subject to the fulfillment on or
before the Closing of each of the following conditions:
A. All corporate and other proceedings in connection with the
transactions contemplated at the Closing and all documents incident thereto
shall be reasonably satisfactory in form and substance to Michael J.
Morrison, Esq., and he shall have received all such counterpart original and
certified or other copies of such documents as he may reasonably request.
B. Seller shall have delivered to Buyer the Shares.
C. All written consents, authorizations, approvals, waivers and
consents of third. parties to this transaction shall have been obtained.
D. The directors of Seller shall be Messrs. Ed Foraker, William
GroszKruger, Robert M. Coleman, Stewart Smith and Michael Pryor; there shall
be no vacancies on Seller's Board of Directors; and there shall have been no
other changes to Seller's Board of Directors, except as agreed to in writing
by the parties. It is understood and agreed by the parties that, immediately
upon Closing, Messrs. Smith and Pryor shall resign and be replaced on the
Board by two (2) nominees of Casmyn.
<PAGE>
E. Seller shall have received from Eric Grimshaw, Esq., special
counsel for Seller, an opinion, dated as of the Closing, in a form and
substance agreed to by the parties.
F. The representations and warranties made by Seller hereunder shall
be true and correct when made, and shall be true and correct on the Closing
date with the same force and effect as if they had been made on and as of
said date; Seller's business and assets shall not have been adversely
affected in any way prior to the Closing; and Seller shall have performed all
obligations and conditions herein required to be performed or observed by it
on or prior to the Closing.
G. At the time of Closing, the purchase of the Shares by Buyer, and
receipt of the Casmyn Shares by Seller, hereunder shall be legally permitted
by all laws, rules and regulations to which Buyer and Seller are subject.
H. Seller shall have delivered to Buyer a certificate, executed by
the President or any Vice President and the Treasurer and/or Secretary of
Seller, dated on the Closing date, certifying to the fulfillment of the
conditions specified to be performed by Seller herein.
12. Conditions of Seller's Obligations at Closing. The obligations
of Seller to Buyer under this Agreement are subject to the fulfillment on
or before the Closing of each of the following conditions:
A. Buyer shall have delivered to Seller the Casmyn Shares.
B. All corporate and other proceedings in connection with the
transaction contemplated at the Closing and all documents incident thereto
shall be reasonably satisfactory in form and substance to Eric Grimshaw,
Esq., special counsel to Seller, and they shall have received all such
counterpart original or certified or other copies of such documents as they
may reasonably request.
C. All written consents, authorizations, approvals, waivers and
consents of third parties to this transaction shall have been obtained.
D. Seller shall have received from Michael J. Morrison, Esq., special
counsel to Buyer, an opinion, dated as of the Closing, in form and substance
agreed to by the parties.
E. Buyer shall have executed and delivered to Seller an investment
representation, satisfactory to Seller, with respect to all Shares being
acquired by Buyer.
F. The representations and warranties made by Buyer herein shall be
true and correct when made, and shall be true and correct on the Closing date
with the same force and effect as if they had been made on and as of said
date.
G. The parties shall have executed the agreement attached as Schedule
3 hereto.
13. Expenses. Seller and Buyer shall each pay their own respective
costs, expenses and fees associated with this transaction.
14. Confidentiality of Information. Each party agrees that any
information obtained by it pursuant to this Agreement which may be
proprietary to the other party, or otherwise confidential, will not be
disclosed without the prior written consent of the other party. Each
party further acknowledges and understands that any information so
obtained which may be considered "inside," non-public information may not
be utilized by it in connection with the purchase and/or sale of the other
party's securities except in compliance with applicable state and federal
anti-fraud statutes. Each party acknowledges it has executed a separate
Confidentiality Agreement, dated May 10, 1996, applicable to this
transaction.
<PAGE>
15. Changes to Board of Directors. Immediately after Closing of this
transaction, Messrs. Smith and Pryor shall be replaced on Seller's Board
of Directors by two (2) nominees of Buyer, who shall serve until Seller's
next annual shareholders' meeting and election of directors.
16. Miscellaneous.
A. Time. Time is of the essence of this Agreement and in the
performance and enforcement of each of the promises, covenants,
representations and warranties of the parties contained herein. For the
purpose of computing any period of time prescribed herein or relating hereto,
the first day shall be excluded. If the period of time is six (6) days or
more, weekends and public holidays shall be included. An act required to be
performed on a day shall be performed at or before the close of business on
such day. If an act is required to be performed on a certain day and such
day is not a regular business day, the time of performance or measurement
shall be extended to and including the next regular business day.
B. Entire Agreement. This Agreement constitutes the entire
agreement of the parties and all prior rights, negotiations and
representations are merged herein.
C. Binding Effects. This Agreement shall inure to the benefit of,
and be binding upon, the parties and their several successors in interest in
any capacity.
D. Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of Oklahoma.
E. Notices. Any notice or notices which any party hereto deems
necessary, useful or convenient to give to any other party or parties hereto,
at any time and from time to time, shall be in writing and shall be
personally served upon or mailed to the parties at the following addresses:
To Seller at: 4141 N. Scottsdale Road, Suite 100
Scottsdale, Arizona 85251
with copies to: Eric Grimshaw, Esq.
Pray, Walker, et al.
900 Oneok Plaza
Tulsa, Oklahoma 74103-4218
To Buyer at: 1335 Greg Street, Suite 104
Sparks, Nevada 89431
with copies to: Michael J. Morrison, Esq.
1025 Ridgeview Drive, Suite 400
Reno, Nevada 89509
F. Attorneys' Fees and Costs. If any legal action or any
arbitration or other proceeding is brought for the enforcement of this
Agreement or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party shall be entitled to recover reasonable
attorneys' fees and other costs incurred in that action or proceeding, in
addition to any other relief to which he may be entitled.
<PAGE>
G. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to constitute but one and the
same instrument.
H. Captions. Article and paragraph captions contained in this
Agreement are inserted only as a matter of convenience and reference. Said
captions shall not be construed to define, limit, restrict, extend or
describe this Agreement or the intent of any provision hereof.
I. Gender and Number. Whenever used in this Agreement and as
required by the context of the transaction, the single number shall include
the plural, the plural number shall include the singular, and masculine
gender shall include the feminine and neuter.
J. Related Agreement. This Agreement is related to and affected by
an Agreement and Plan of Merger to be executed by the parties on or about the
date of this Agreement. Pursuant thereto, this Agreement may, under certain
circumstances, be rescinded by the parties.
K. Survival. The representations, warranties, covenants and
agreements made herein shall survive the Closing of the transaction
contemplated hereby, notwithstanding any investigation made by Buyer. All
statements as to factual matters contained in any certificate or other
instrument delivered by or on behalf of Seller pursuant hereto or in
connection with the transaction contemplated hereby shall be deemed to be
representations and warranties by Seller hereunder as of the date of such
certificate or instrument.
L. Separability. In case any provision of this Agreement not
material to the benefits intended to be conferred hereby shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
M. Other Documents. The parties to this Agreement shall in good
faith execute such other and further instruments, assignments or documents as
may be necessary or advisable by counsel to carry out the transactions
contemplated by this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
WESTAMERICA CORPORATION, "Seller"
By: _________________________________
Ed Foraker, President
CASMYN CORP., "Buyer"
By:_________________________________
Amyn Dahya, CEO
<PAGE>
EXHIBIT 99.2
AGREEMENT
This AGREEMENT (the "Agreement") is made and entered into effective this
24 day of May, 1996, by and among CASMYN Corp., a Colorado corporation
("Casmyn"), WESTAMERICA CORPORATION, an Oklahoma corporation ("Company") and
EDWARD R. FORAKER, an individual ("Foraker").
WITNESSETH:
WHEREAS, pursuant to a Stock Purchase Agreement between Casmyn and the
Company of even date ("Stock Purchase Agreement"), Casmyn has acquired 5680514
shares of the common stock, par value $.01 per share of the Company (the
"WestAmerica Shares") in exchange for 606,061 shares of the common stock, par
value $.04 per share of Casmyn (the Casmyn Shares"), and
WHEREAS, Foraker is President and a member of the Board of Directors of
the Company and owns 1220052 shares of the Company's Common Stock; and
WHEREAS, to induce the Company to enter into the Stock Purchase Agreement
and as a condition precedent to the sale of the WestAmerica Shares by the
Company to Casmyn, Casmyn is required to execute and deliver this Agreement in
order to promote the mutual interest of Casmyn, the Company and their
respective shareholders, and the allocation of control of the Company.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and promises contained in this Agreement, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Board of Directors
1.01 Composition of Company Board of Directors. The Board of
Directors ("Board") of the Company shall be composed of five (5) members,
consisting of the following individuals: Edward R. Foraker, Robert M.
Coleman, W.F. Groszkruger, and two (2) nominees of Casmyn (collectively,
"Directors" and individually, a "Director").
1.02 Agreement of Vote Shares. Casmyn agrees to vote, at any
regular or special meeting of shareholders of the Company (or execute a
written consent in lieu of such meeting with respect to), all shares of
common stock and all other voting securities of the Company which Casmyn
directly or beneficially owns or with respect to which Casmyn hereafter
acquires direct or beneficial ownership, and all shares of common stock and
all other voting securities of the Company with respect to which Casmyn now
holds or hereafter acquires a proxy or other power to vote, and to take all
other actions necessary to nominate, elect, ensure the election, and ensure
the continued composition of the Board as set forth in Section 1.01.
1.03 Board Vacancies. In the event a Director designated in
Section 1.01 dies, resigns, is removed, is unable or unwilling or otherwise
ceases to be a Director, Foraker shall have the sole right to and shall
nominate a replacement or successor for such former Director, and Casmyn
agrees to vote, at any regular or special meeting of shareholders of the
Company (or execute a written consent in lieu of such a meeting with respect
to), all shares of common stock and all other voting securities of the
Company directly or beneficially owned by Casmyn, or with respect to which
Casmyn hereafter acquires direct or beneficial ownership, and all shares of
<PAGE>
common stock and all other voting securities of the Company with respect to
which Casmyn now holds or hereafter acquires a proxy or other power to vote,
for the election of such nominee, or in the event such vacancy is to be
filled by the remaining members of the Board, to direct and use its best
efforts to cause, such remaining Directors to vote for and elect such
nominee. Provided, that in the event a vacancy is filled by a vote of the
remaining Directors and the person so nominated is not elected in accordance
with this Agreement, Casmyn and Foraker agree to cause a meeting of the
tockholders to be called and convened as promptly as practicable in order to
fill such vacancy in accordance with the terms of this Agreement.
1.04 Proxy. Upon execution of this Agreement, Casmyn shall
execute and deliver to Foraker its irrevocable proxy granting Foraker the
right to vote the WestAmerica Shares in accordance with the terms of this
greement.
2. Restriction on Transfer. Casmyn agrees that, without the prior
written consent of the Company which consent the Company may give or withhold
at its sole discretion , Casmyn will not, voluntarily, by operation of law or
otherwise, sell, hypothecate, pledge, assign or otherwise transfer or
encumber, with or without consideration (collective referred to as a
"Transfer"), any or all of the WestAmerica Shares or any other shares of
common stock or other voting securities of the Company owned of record or
beneficially by Casmyn. Unless a Transfer by Casmyn is made in accordance
with the terms of this Section 2, such Transfer shall be deemed invalid,
null and void, and of no force or effect, the Company shall not record such
Transfer on its records, and the transferee of any such shares shall not be
entitled to vote such shares, receive dividends on such shares or have any
other rights in or respecting such shares.
3. Standstill Agreement
3.01 Standstill. Casmyn agrees that it will not, nor will
Casmyn permit any of its Affiliates (as such terms is used in Rule 12b-2 of
the Securities Exchange Act of 1934, as amended ("the Exchange Act"), without
the prior written approval of the Board, to:
(a) directly or indirectly acquire or offer to acquire
(including any tender offer), whether by purchase, gift, exchange or by
joining a partnership or other group (as defined in Section 13(d)3 of the
Exchange Act), any assets, business or properties of the Company or any of
its subsidiaries or any shares of common or preferred stock or other voting
securities of the Company or any of its subsidiaries, or securities
convertible into, exchangeable or exercisable for such common or preferred
stock, including, without limitation, any common or preferred stock options,
puts, calls, or warrants; or
(b) (i) solicit, initiate, or participate in any
"solicitation" of "proxies" or become a "participant" in any "election
contest" (as such terms are defined or used in Regulation 14A under the
Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and including any
exception solicitation pursuant to Rule 14a-2(b)(1); call, or in any way
participate in a call for, any regular or special meeting of stockholders of
the Company (or take any action with respect to action by written consent of
the stockholders in lieu of a meeting); request, or take any action to obtain
or retain any list of holders of any securities of the Company; initiate or
propose any stockholder proposal or participate in the making of, or solicit
stockholders for the approval of, one or more stockholder proposals relating
to the Company's securities; (ii) form, join or in any way participate in a
group with respect to any securities of the Company; or (iii) otherwise act
to control or influence the Company or the management, Board, policies or
affairs of the Company, including without limitation, (a) soliciting or
proposing to effect or negotiate any form of business combination,
restructuring, recapitalization, or other extraordinary transaction
involving, or any change in control of the Company, its subsidiaries or any
of their respective securities or assets, or (b) seeking representation on
the Board or the removal of any Directors or a change in the composition or
size of the Board of the Company or any of its subsidiaries, or (c) making
<PAGE>
any request to amend or waive any provision of this Agreement; (iv) disclose
any intent, purpose, plan, or proposal with respect to this Agreement or the
Company, its subsidiaries, or the Board, management, policies, affairs, or
securities or assets of the Company or its subsidiaries that is inconsistent
with this Agreement, including any intent, purpose, plan, or proposal that is
conditioned on, or would require the Company or any of its subsidiaries to
make any public disclosure relating to any such intent, purpose, plan,
proposal, or condition; or (v) assist, advise, encourage, or act in concert
with any person with respect to, or seek to do, any of the foregoing.
3.02 Trading. Without limiting the foregoing, Casmyn further
agrees that no non-public information provided by the Company to it will be
used by Casmyn or its Affiliates or disclosed to others for use, in
connection with purchasing, selling, or trading in the Company's securities
in any manner that is in violation of legal or regulatory restrictions
applicable from time to time, and Casmyn acknowledges a duty not to purchase,
sell, or trade in Company securities on the basis of any material "inside"
information that is not publicly known.
4. Put Option
4.01 Put Option Grant. Casmyn hereby grants to the Company
the irrevocable right and option (the "Put"), exercisable by giving written
notice to Casmyn to require Casmyn to purchase from the Company all of the
Casmyn Shares then owned by the Company in exchange for all WestAmerica
Shares then owned by Casmyn. The exclusive and full consideration for such
purchase shall consist of the WestAmerica Shares acquired by Casmyn. The Put
shall be exercisable by the Company at its sole discretion, for any reason,
at any time after the date of this Agreement, and shall expire at 12:00 a.m.
on May 24, 1997. As used in this Agreement (a) "Casmyn Shares" shall, at any
point in time, mean (i) the shares of Casmyn common stock acquired by the
Company pursuant to the Stock Purchase Agreement and (ii) shares of Casmyn
common stock issued to the Company as a result of any combination of
outstanding Casmyn common stock, any stock splits with respect to outstanding
Casmyn common stock, or any stock dividends with respect to outstanding
Casmyn common stock payable in common stock of Casmyn, and (b) "WestAmerica
Shares" shall, at any point in time, mean (i) the shares of Company common
stock acquired by Casmyn pursuant to the Stock Purchase Agreement, and (ii)
shares of Company common stock issued to Casmyn as a result of any
combination of the Company's outstanding common stock, any stock splits with
respect to the Company's outstanding common stock, or any stock dividends
with respect to the Company's outstanding common stock payable in common
stock of the Company.
4.02 Put Exercise. The Company may exercise the Put by giving
Casmyn written notice (the "Put Notice") to such effect. Upon any such
exercise of the Put, the resulting exchange of Casmyn Shares for the
WestAmerica Shares shall be consummated at a closing on a mutually
satisfactory date, but in no event later than 10 days from the date of
receipt of the Put Notice by Casmyn.
4.03 Put Closing. At the closing of the exchange of the
Casmyn Shares for the WestAmerica Shares pursuant to the exercise of the Put,
certificates representing the Casmyn Shares to be exchanged shall be
delivered to Casmyn, or its duly appointed agent and representative, duly
endorsed or accompanied by duly executed stock powers and otherwise in proper
transferable form upon and against the receipt by the Company of the
WestAmerica Shares duly endorsed or accompanied by duly executed stock powers
and otherwise in proper transferable form upon and against the receipt by the
Company of the WestAmerica Shares duly endorsed or accompanied by duly
executed stock powers and otherwise in proper transferable form and upon
delivery of all other proper and necessary closing papers. The Casmyn Shares
and WestAmerica Shares to be exchanged by the parties upon exercise of the
Put shall be delivered at closing free and clear of all liens, security
interests, claims and encumbrances of every kind and character. The closing
shall take place at the offices of the Company unless Casmyn and the Company
shall mutually agree upon a different place of closing.
<PAGE>
4.04 Reorganization. Except as otherwise disclosed in
Schedule 1 attached hereto, Casmyn covenants and agrees that, subsequent to
the date of this Agreement and prior to the closing of any sale and purchase
of the Casmyn Shares pursuant to the exercise of the Put, it will not
commence any proceedings for or make effective any reclassification,
reorganization, merger, consolidation, sale or conveyance of all or
substantially all of its assets or similar occurrence affecting its
outstanding shares of common stock without, prior to any such event, entering
into an amendment or supplement to this Agreement (or causing any proposed
successor to Casmyn or proposed purchaser of its assets to do so) in form and
substance satisfactory to the Company and on a fair and equitable basis and
as nearly as practicable so as to be comparable to the methods and provisions
of this Agreement, providing for the obligation of Casmyn (or such proposed
successor or purchase) to acquire the Casmyn Shares in exchange for the
WestAmerica Shares upon exercise of the Put following or upon the
consummation of any such reclassification, reorganization, merger,
consolidation, sale or conveyance of all or substantially all of Casmyn's
assets or similar occurrence.
5. Waiver Remedies
5.01 Waiver. It is understood and agreed that no failure or
delay by any party in exercising any right, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege under this Agreement.
5.02 Remedies. Each party agrees that money damages would not
be a sufficient remedy for any breach of this Agreement by any party and
that, in addition to all other available legal or equitable remedies, such
party shall be entitled to equitable relief, including injunction and
specific performance, for any breach of the provisions of this Agreement,
without proof of actual damages. Each party further agrees to waive, and use
its best efforts to cause its officers and directors to waive, any
requirement for the securing or posting of any bond in connection with such
remedy.
6. Termination. This Agreement shall continue in effect until the
earlier of: (a) the written agreement of Casmyn, the Company and Foraker to
terminate this Agreement, (b) Casmyn or any Affiliate of Casmyn shall cease
to own any of the WestAmerica Shares or any other shares of common stock or
any other voting securities of the Company, (c) upon the transfer of any of
the shares of the Company's capital stock in connection with a merger,
consolidation, sale of shares or share exchange, or (d) at the end of one (1)
year from the date of this Agreement.
7. Miscellaneous
7.01 Authority. Casmyn hereby represents and warrants that it
is vested with full corporate power and authority to execute and perform this
Agreement and that, upon execution and delivery, this Agreement will
constitute the legal, valid and binding agreement of Casmyn enforceable
against Casmyn in accordance with the terms and provisions hereof.
7.02 Notice. All notices, requests and demands required or
permitted to be given pursuant to this Agreement shall be in writing and
sufficient if delivered by hand, by facsimile transmission, by registered or
certified mail, postage prepaid, or by courier or overnight carrier, to the
persons at the addresses set forth below (or at such other address as may be
provided thereunder), and shall be deemed to have been delivered as of the
date so delivered:
<PAGE>
If to Casmyn: Casmyn Corp.
Suite 104
1335 Greg Street
Sparks, Nevada, 89431
(702) 331-5527
Attn: Amyn Dahya, President
and Chief Executive Officer
If to WestAmerica WestAmerica Corporation
Suite 100
4141 North Scottsdale Road
Scottsdale, Arizona 85251
(602) 994-3746
Attn: Edward R. Foraker, President
If to Foraker Edward R. Foraker
Suite 100
4141 North Scottsdale Road
Scottsdale, Arizona 85251
(602) 994-3746
7.03 Amendment. This Agreement shall not be modified or
amended except by means of a writing signed by each party.
7.04 Binding Effect. This Agreement shall be binding upon the
parties hereto and their respective heirs, executors, administrators,
successor, and assigns.
7.05 Severability. If any provision of the Agreement shall
under any circumstances be deemed invalid or inoperative to any extent, it is
agreed and understood that such invalidity shall not invalidate the whole
Agreement, but the Agreement shall be construed as not to contain the
provision or provisions deemed invalid and inoperative.
7.06 Governing Law. The construction and interpretation of
this Agreement shall at all times and in all respects be governed by the laws
of the State of Oklahoma.
7.07 References to Gender and Number Terms. In construing the
Agreement, feminine or neuter pronouns shall be substituted for those
masculine in form and vice verse, and plural terms shall be substituted for
singular and singular for plural in any place in which the context so
requires.
7.08 Counterparts. This Agreement may be executed and
delivered in any number of counterparts, all of which when executed and
delivered shall have the force and effect of any original.
7.09 Successors and Assigns. The provisions of this Agreement
shall be finding upon the parties hereto and their heirs, personal
representatives, successors and assigns.
<PAGE>
7.10 Legend. Each of the parties agrees that certificates
representing shares of the Company's common stock which are the subject of
this Agreement shall have a legend printed on such certificates to the
following effect:
"THE SHARES REPRESENTED HEREBY ARE SUBJECT TO AN AGREEMENT DATED
EFFECTIVE MAY 24, 1996, A COPY OF WHICH IS ON FILE WITH AND MAY BE OBTAINED
FROM THE COMPANY."
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date above stated.
WESTAMERICA CORPORATION CASMYN CORP.
/s/ Edward R. Foraker /s/ Amyn Dahya
By: _____________________________ By: ______________________________
Edward R. Foraker, President Amyn Dahya, President
/s/ Edward R. Foraker
_____________________________
Edward R. Foraker, an individual
<PAGE>
SCHEDULE 1
1. Business combination with Auromar Development Corp., a British Columbia
corporation, as disclosed in Casmyn's filings with the Securities and
Exchange Commission.
2. Casmyn financings to raise additional capital through the issuance of
debt and/or equity interests.
Acknowledged by the Company:
WESTAMERICA CORPORATION
/s/ Edward R. Foraker
By: ________________________________
Edward R. Foraker, President
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the July 19, 1996 Form
8-K of Casmyn Corp. of our report dated June 18, 1996 on the financial
statements of WestAmerica Corporation included in its Form 10-KSB for the year
ended March 31, 1996.
TULLIUS TAYLOR SARTAIN & SARTAIN
Tulsa, Oklahoma
July 18, 1996
