UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
CYBERAMERICA CORPORATION
(Name of Issuer)
Common Stock, par value $0.001
(Title of Class of Securities)
232456 10 3
(CUSIP Number)
Richard D. Surber, 268 West 400 South, Salt Lake City, Utah 84101 (801) 575-8073
(Name, address and telephone number of person authorized to receive notices and
communications)
December 30, 1996
(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 13A, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box (X ).
Check the following box if a fee is being paid with the statement ( ).
<PAGE>
SCHEDULE 13D/A
CUSIP No. 232456 10 3 Page 1 of 7 Pages
1) NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Richard D. Surber ("Richard D. Surber")
________________________________________________________________________________
2) CHECK THE APPROPRIATE BOX IF EITHER IS A MEMBER OF A GROUP (A)( )
(B) (X)
________________________________________________________________________________
3) SEC USE ONLY
________________________________________________________________________________
4) SOURCE OF FUNDS
OO
________________________________________________________________________________
5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(E). [ ]
________________________________________________________________________________
6) CITIZENSHIP OR PLACE OF ORGANIZATION
Richard D. Surber is a citizen of the United States.
________________________________________________________________________________
NUMBER OF 7) SOLE VOTING POWER 1,173,640
SHARES BENEFICIALLY
OWNED BY 8) SHARED VOTING POWER* 3,844,839
EACH
REPORTING 9) SOLE DISPOSITIVE POWER 1,173,640
PERSON WITH
10) SHARED DISPOSITIVE POWER* 3,844,839
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,173,640
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (X)
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.44%
14) TYPE OF REPORTING PERSON
IN
*Presumes option held by A-Z Professional Consultants, Inc. to purchase 26% of
the issued and outstanding shares of CyberAmerica's Common Stock for $0.59 per
share is exercised on January 6, 1997.
<PAGE>
SCHEDULE 13D/A
CUSIP No. 232456 10 3 Page 2 of 7 Pages
1) NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Investment Sanctuary Corporation ("Investment Sanctuary")
2) CHECK THE APPROPRIATE BOX IF EITHER IS A MEMBER OF A GROUP (A) (X)
(B) ( )
3) SEC USE ONLY
4) SOURCE OF FUNDS
OO
5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(E). [ ]
6) CITIZENSHIP OR PLACE OF ORGANIZATION
Utah is the state in which the reporting entity is organized.
7) SOLE VOTING POWER -0-
NUMBER OF
SHARES
BENEFICIALLY 8) SHARED VOTING POWER -0-
OWNED BY
EACH
REPORTING 9) SOLE DISPOSITIVE POWER -0-
PERSON WITH
10) SHARED DISPOSITIVE POWER -0-
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0%
12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES ( )
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
14) TYPE OF REPORTING PERSON
CO
<PAGE>
Item 1. Security and Issuer
This amended schedule relates to common stock, par value $0.001 per
share, of CyberAmerica Corporation ("Common Stock"). CyberAmerica Corporation
("CyberAmerica") is a Nevada corporation with principal offices at 268 West 400
South, Salt Lake City, Utah 84101.
Item 2. Identity and Background
(a) This amended schedule is filed jointly by Richard D. Surber, an individual,
and Investment Sanctuary Corporation ("Investment Sanctuary"), a Utah
corporation.
(b) The business address for Richard D. Surber and Investment Sanctuary is 268
West 400 South, Salt Lake City, Utah 84101.
(c) The principal business of Investment Sanctuary and the principle occupation
of Richard D. Surber is providing financial and business consulting services.
Richard D. Surber is an executive officer ("president") and director of
CyberAmerica, and is the sole executive officer ("president") and director of
Investment Sanctuary. Richard D. Surber is also the sole executive officer
("president") of A-Z. Richard D. Surber also serves as an officer or director of
a number of private corporations.
(d) Neither Richard D. Surber nor Investment Sanctuary has been convicted in a
criminal proceeding (excluding traffic violations and similar misdemeanors)
during the last five years.
(e) During the last five years Richard D. Surber and Investment Sanctuary were
never a party to a civil proceeding that resulted in a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws of finding any violation with
respect to such laws.
(f) Richard D. Surber is a citizen of the United States of America, and
Investment Sanctuary is a Utah Corporation.
Item 3. Source and Amount of Funds or Other Consideration
The 1,100,000 shares that are the impetus for filing this amended
schedule were issued to Richard D. Surber pursuant to a Stock Exchange Agreement
executed between CyberAmerica, Investment Sanctuary and Richard D. Surber
("Agreement"). Pursuant to said Agreement, Richard D. Surber exchanged 100% of
Investment Sanctuary's Capital Stock together with the cancellation of an option
to purchase 25% of the issued and outstanding shares of Common Stock ("Option"),
for one million one hundred thousand (1,100,000) shares of Common Stock. The
primary asset of Investment Sanctuary was a 50% legal beneficial interest in the
sixth floor of a building located at 68 South Main Street, Salt Lake City, Utah
(the "McIntyre Building"). The terms of the Option to purchase 25% of
CyberAmerica shares were disclosed on Form 8-K filed by CyberAmerica, then known
as the Canton Industrial Corporation, on January 3, 1996.
The parties arrived at the figure of one million one hundred thousand
(1,100,000) shares of Common Stock based primarily on the estimated cash value
for the proposed sale of the McIntyre Building. The 1,100,000 shares also
reflected the value of the cancellation of the Option and included the
satisfaction of existing debt between Investment Sanctuary and Richard D.
Surber, not exceeding $10,000. The equivalent of $99,000 was determined to be
valid consideration for the transaction. Since the shares were to be issued to
Richard D. Surber as restricted shares pursuant to Rule 144 under the Securities
Act of 1933, as amended, a 50% discount was provided. Accordingly, the parties
valued the Common Stock at one half the $0.18 bid price as of the effective date
of the Agreement, resulting in 1,100,000 shares at $0.09.
<PAGE>
The Option to purchase 25% of CyberAmerica shares was granted by
CyberAmerica on December 5, 1995 to Richard D. Surber as President of Investment
Sanctuary, for consulting services previously rendered. The Stock Exchange
Agreement executed between CyberAmerica, Investment Sanctuary, and Richard D.
Surber canceled the 25% Option on October 31, 1996 although executed on December
30, 1996.
Item 4. Purpose of Transaction
The following discussion states the purpose or purposes of the
acquisition of securities of the issuer and describes any plans or proposals
resulting in material transactions with CyberAmerica.
In his role as President of both CyberAmerica and Investment Sanctuary during
October 1996, Richard D. Surber was aware of the assets and liabilities of both
corporations. As such, he was aware of CyberAmerica's need for cash and
Investment Sanctuary's beneficial ownership in property that could be
liquidated. The parties determined that a stock exchange whereby CyberAmerica
could receive the cash proceeds of any sale of the McIntyre Building was
prudent. At the same time, such an exchange would permit Richard D. Surber, as
an individual, to avoid absorbing the incident tax implications of any such
sale. By the end of October 1996, the parties reached an agreement with regard
to the terms of such an exchange. Although the actual sale of the building took
place on November 21, 1996, the parties did not execute the Stock Exchange
Agreement until December 30, 1996, but did so with an effective date of October
31, 1996.
Pursuant to a Consulting Agreement dated August 30, 1995, 480,000
shares of Common Stock were issued to A-Z for consulting services rendered for
CyberAmerica.
Item 5. Interest in Securities of the Issuer
(a) The aggregate number and percentage of class of securities identified
pursuant to Item 1 beneficially owned by Richard D. Surber may be found in rows
7 - 11 and 13 of the cover page.
(b) The powers that Richard D. Surber has relative to the shares discussed
herein may be found in rows 7 through 10 of the cover page. The quantity of
shares owned by Richard D. Surber include 1,100,000 shares of Common Stock
issued pursuant to the Stock Exchange Agreement executed on December 17, 1996,
and 73,640 shares of Common Stock held personally, as reported on Form 4 filed
on behalf of Richard D. Surber on May 22, 1996. Said shares total 1,173,640
shares of Common Stock for which Richard D. Surber has the sole power to vote or
direct the vote.
A-Z has beneficial ownership of 3,844,839 shares of Common Stock.
Richard D. Surber has indirect beneficial ownership over such shares because of
his position as A-Z's sole officer and director. A-Z has direct beneficial
ownership of 480,000 shares of Common Stock pursuant to a Consulting Agreement,
and indirect beneficial ownership of 3,364,839 shares of Common Stock pursuant
to A-Z's Option to purchase 26% of the issued and outstanding shares of Common
Stock. Richard D. Surber expressly disclaims any direct and indirect beneficial
ownership in any of said shares of Common Stock held by or for the benefit of
A-Z.
<PAGE>
The Option granted to A-Z to purchase 26% of the issued and outstanding
shares of Common Stock at a price of $0.59 per share has not been exercised. The
source of funds to be used in exercising such Option and making the purchase of
these shares is personal and may include various forms of consideration
acceptable to CyberAmerica and its board of directors, with the exclusion of
promissory notes. As of January 6, 1997 there were 10,943,003 shares of
CyberAmerica's Common Stock issued and outstanding. If A-Z decided to exercise
its option on January 6, 1996, A-Z would purchase 3,364,839 restricted shares
for $1,985,255.
(c) There were no transactions in the class of securities reported on that were
effected during the last sixty days aside from those discussed in Item 4.
(d) No person aside from the reporting persons listed herein has the right to
receive or power to direct the receipt of dividends from, or the proceeds from
the sale of, such securities.
(e) Effective October 31, 1996, Investment Sanctuary ceased to be entitled to
the indirect beneficial ownership of 25% of the issued and outstanding shares of
Common Stock.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
The following is a list of all contracts, arrangements, understandings
or relationships between Richard D. Surber and CyberAmerica with respect to any
securities of the issuer:
Richard D. Surber is the President of CyberAmerica and Investment
Sanctuary. His role as such makes him aware of the assets and liabilities of
both corporations, as well as their respective current financial conditions.
Accordingly, during October 1996, his knowledge of CyberAmerica's need for cash
was the impetus for conducting discussions for CyberAmerica's acquisition of
Investment Sanctuary, the corporation that held a 50% ownership interest in the
McIntyre Building, an asset that could be liquidated. At the same time, Richard
D. Surber started negotiating the sale of the McIntyre Building in order to
permit CyberAmerica to receive the cash proceeds of any sale. It was the
parties' intent that the acquisition of Investment Sanctuary by CyberAmerica
would include only the 50% ownership interest in the McIntyre Building together
with the cancellation of the Option held by Richard D. Surber to purchase 25% of
the issued and outstanding shares of Common Stock. The parties therefore had to
otherwise resolve the status of the existing assets and liabilities of
Investment Sanctuary before finalizing their Stock Exchange Agreement. The
actual sale of the McIntyre Building occurred on November 21, 1996 before
CyberAmerica and Richard D. Surber were able to reduce the agreement for the
acquisition of Investment Sanctuary to writing. However, as the substance of the
bargain between the parties had been struck, the understanding existed that
CyberAmerica would receive 50% of the cash proceeds of the sale of the McIntyre
Building, as well as assume any of the tax implications incident to such sale.
As part of the negotiations for CyberAmerica's acquisition of Investment
Sanctuary, any and all conflicts related to Richard D. Surber's position as
President of CyberAmerica and Investment Sanctuary were disclosed, and a
majority of disinterested directors of CyberAmerica approved the Agreement and
the issuance of the shares to Richard D. Surber. For these reasons, the Stock
Exchange Agreement by which the 1,100,000 shares of Common Stock were issued was
not actually executed until December 30, 1996. Based on the parties' intent and
existing understandings, the Agreement was made effective October 31, 1996, a
date prior to the sale of the McIntyre Building.
Item 7. Material to Be Filed as Exhibits.
Attached as Exhibit A is a copy of the Stock Exchange Agreement dated
December 17, 1996 between CyberAmerica, Investment Sanctuary, and Richard D.
Surber by which CyberAmerica acquired 100% of the Capital Stock of Investment
Sanctuary, including a 50% ownership interest in the McIntyre Building, and the
cancellation of the option to purchase 25% of the issued and outstanding shares
of CyberAmerica. Attached as Exhibit B is a copy of an agreement between Richard
Surber and Investment Sanctuary which acknowledges the responsibility of the
parties to file an amendment to Schedule 13D as promulgated under the Securities
Act of 1933 due to their respective ownership of Common Stock of CyberAmerica
and therefore obligates both parties to file same.0
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.
Date: January 8, 1997 /s/ Richard D. Surber
Richard D. Surber, an individual
Date: January 8, 1997 /s/ Richard D. Surber
Richard D. Surber, President,
Investment Sanctuary Corporation
Attention: Intentional misstatements or omissions of fact constitute Federal
criminal violations (See 18 U.S.C. 1061).
<PAGE>
EXHIBIT A
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT (the "Agreement"), is made effective the 31st
day of October, 1996, between CyberAmerica Corporation, a Nevada corporation
with principal offices at 268 West 400 South, Salt Lake City, Utah 84101
("CyberAmerica") and Investment Sanctuary Corporation, a Utah corporation whose
principal address is 1448 South Roberta Street, Salt Lake City, Utah 84115
("Investment Sanctuary"), and Richard D. Surber, an individual.
RECITALS
WHEREAS, Investment Sanctuary represents that it is a Subchapter S
corporation as that term is defined in ss. 1371 et seq. of the Internal Revenue
Code of 1986, as amended;
WHEREAS, Richard D. Surber is the sole legal and beneficial owner of 100%
of the Capital Stock of Investment Sanctuary ("Capital Stock");
WHEREAS, Investment Sanctuary represents that it is the legal and
beneficial owner of a 50% interest in the sixth floor of a commercial building
located in Salt Lake City, Utah, with address at 68 South Main Street Salt Lake
City, Utah, and otherwise known as the McIntyre Building ("McIntyre Building");
WHEREAS, Richard D. Surber represents that he is the legal holder of a
floating option to purchase 25% of all of the issued and outstanding shares of
CyberAmerica ("Option");
WHEREAS, CyberAmerica, Investment Sanctuary and Richard D. Surber desire to
exchange 100% of the capital stock of Investment Sanctuary, including its
ownership interest in the McIntyre Building together with liabilities of
Investment Sanctuary not to exceed ten thousand dollars ($10,000), as well as
the cancellation of the Option, in exchange for one million one hundred thousand
(1,100,000) shares of CyberAmerica, on the terms and conditions hereinafter set
forth in such a manner that the exchange will constitute a tax-free
reorganization pursuant to the provisions of ss. 368(1)(B) of the Internal
Revenue Code of 1986, as amended;
WHEREAS, in conjunction with this Agreement, CyberAmerica and Investment
Sanctuary acknowledge that all outstanding debts owed to Richard D. Surber from
Investment Sanctuary shall be satisfied in full prior to the Closing of this
Agreement by transferring the assets outlined in Schedule A, attached hereto and
incorporated by reference, to Richard D. Surber.
<PAGE>
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which is expressly acknowledged, CyberAmerica and
Richard D. Surber agree as follows:
1. Transfer of ownership interest in the McIntyre Building, liabilities and
cancellation of Option. Upon the terms and subject to the conditions set
forth in this Agreement, Investment Sanctuary agrees to transfer and
deliver to CyberAmerica, and CyberAmerica agrees to acquire, 100% of the
capital stock of Investment Sanctuary ("Capital Stock"), par value $0.001,
including its ownership interest in the McIntyre Building together with the
liabilities of Investment Sanctuary (not to exceed $10,000). Furthermore,
upon the terms and subject to the conditions set forth in this Agreement,
Richard D. Surber agrees to cancel his Option to purchase shares of
CyberAmerica.
2. Consideration for Transfer of Shares, Ownership Interest in the McIntyre
Building, and Cancellation of Option. Upon the terms and subject to the
conditions set forth in this Agreement, CyberAmerica agrees to deliver to
Investment Sanctuary and Richard D. Surber, in full consideration of and in
exchange for said shares of Capital Stock of Investment Sanctuary,
including its ownership interest in the McIntyre Building, together with
the liabilities of Investment Sanctuary (not to exceed $10,000), as well as
the cancellation of the Option, 1,100,000 shares of Common Stock $0.001 par
value, ("Common Stock") of CyberAmerica, to be delivered upon execution of
this Agreement. Said shares of CyberAmerica Common Stock shall be issued to
Richard D. Surber pursuant to Rule 144 under the Securities Act of 1933, as
amended.
3. Effect of Re-Organization. The re-organization as contemplated by this
Agreement shall revoke in total the classification of Investment Sanctuary
as a Subchapter S Corporation.
4. Access to Books and Records. Except as hereinafter provided, CyberAmerica
and its officers, employees and agents, shall have full access at all
reasonable times from and after the date hereof to the plants, facilities,
books and records of Investment Sanctuary and Investment Sanctuary shall
cooperate fully with CyberAmerica to the end that it may become familiar
with the ownership interest in the McIntyre Building and associated
transactions, and any existing liabilities of Investment Sanctuary.
CyberAmerica agrees to treat any information which is disclosed to
CyberAmerica by Investment Sanctuary as proprietary or confidential
information, and in the event the closing does not take place, all
documents will be returned to Investment Sanctuary and CyberAmerica and
will not make or retain copies of any documents or make use of any
confidential information disclosed to it in the conduct of its business.
5. Closing. The Closing of the exchange provided for herein shall take place
at CyberAmerica's office at 268 West 400 South, Suite 300, Salt Lake City,
Utah 84101 on the 17th day of December, 1996, or at such other time and
place as may be mutually agreed upon by the parties, such time and date
referred to as the "Closing Date." Pursuant to such Closing, Investment
Sanctuary shall deliver to CyberAmerica all certificates, assignments, and
other instruments which may be necessary, desirable, or appropriate in
order to transfer to CyberAmerica 100% of the capital stock of Investment
Sanctuary, including any documents representing ownership interests or
other transactions associated with the McIntyre Building, as well as any
instruments evidencing existing liabilities, together with documents
canceling the Option, all in form and substance reasonably satisfactory to
counsel for CyberAmerica. Pursuant to such Closing, CyberAmerica shall
deliver to Richard D. Surber certificates evidencing the shares of Common
Stock of CyberAmerica to be delivered to Richard D. Surber, together with
such other instruments which may be necessary, desirable, or appropriate to
accomplish such transfers, all in form and substance satisfactory to
counsel for Investment Sanctuary and Richard D. Surber.
<PAGE>
6. Representations and Warranties of Investment Sanctuary. Investment
Sanctuary represents and warrants to and agrees with CyberAmerica as
follows: a. Organization and Standing . Investment Sanctuary is a
Subchapter S corporation duly organized, validly existing and in good
standing under the laws of the State of Utah, with full corporate power to
carry on its business as now being conducted and to own and operate the
property and assets now owned and operated by it, and is duly qualified to
transact business and in good standing in each jurisdiction where the
ownership of its properties or the conduct of its business requires it to
be licensed or qualified to do business. Pursuant to this Agreement,
CyberAmerica shall receive a copy of Investment Sanctuary's Articles of
Incorporation and all amendments thereto, certified by the appropriate
official from the State of Utah, and a copy of Investment Sanctuary's
By-Laws as amended, certified by the Secretary, which documents are
complete and correct as of the date of this Agreement.
b. Subsidiaries, Etc. Investment Sanctuary has no subsidiaries and is not
party to any partnership, joint venture or similar agreement.
c. McIntyre Building. Pursuant to this Agreement, CyberAmerica shall
receive all documents, agreements and other instruments as related to
the ownership interest in the McIntyre Building and any existing
liabilities of Investment Sanctuary.
d. Litigation . Except as identified in a complete and accurate schedule,
identified by reference to this subparagraph and delivered to
CyberAmerica, Investment Sanctuary is not engaged in or threatened
with any legal action or other proceeding before any court or
administrative agency. Investment Sanctuary has not violated any laws,
regulations or order applicable to its business or activities, and the
conduct of the present business of Investment Sanctuary at the present
location is in conformity with all zoning and building code
requirements.
e. Title to Capital Stock . Investment Sanctuary represents and warrants
that this Agreement has been duly executed and delivered and is a
valid agreement binding in accordance with its terms; that Richard D.
Suber, as President of Investment Sanctuary has valid title to the
shares of Capital Stock of Investment Sanctuary, with full right,
power and authority to transfer, sell and deliver such shares pursuant
to this Agreement; and that, upon delivery of the shares pursuant to
this Agreement, CyberAmerica will receive valid and marketable title
to the shares of Capital Stock, free and clear of all voting or other
trust arrangements, liens, encumbrances, restrictions, and adverse
claims, whether existing or contingent.
7. Representations and Warranties of CyberAmerica. CyberAmerica represents and
warrants to and agrees with Investment Sanctuary as follows:
a. Organization and Standing. CyberAmerica is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Nevada, with full corporate power to carry on its business as
now being conducted and to own and operate the property and assets now
owned and operated by it, and is duly qualified to transact business
and in good standing in each jurisdiction where the ownership of its
properties or the conduct of its business requires it to be licensed
or qualified to do business.
b. Capital Stock. The authorized capital stock of CyberAmerica consists
of: 20,000,000 shares of Preferred Stock, $0.001 par value,
200,000,000 shares of Common Stock, $0.001 par value. 8,587,934 shares
of Common Stock were issued and outstanding at the close of business
on November 1, 1996. All of said outstanding shares are validly
issued, fully paid and non-assessable.
<PAGE>
c. Validity of Shares. The shares of Common Stock to be delivered by
CyberAmerica pursuant to this Agreement will, when so delivered, be
validly issued and outstanding, fully paid and non-assessable.
d. Changes, Dividends, Etc. Prior to the closing hereunder, CyberAmerica
will not split, combine or otherwise change or reclassify its
outstanding Common Stock or declare or distribute any cash or stock
dividend upon such Common Stock.
e. Authorization of Agreement. The execution, delivery and performance of
this Agreement has been duly authorized by all requisite corporate
action, and will not result in any breach of or violate or constitute
a default under its Articles of Incorporation or By-Laws or any
indenture, mortgage or other agreement or instrument to which it is a
party.
f. No Violation of Law, Etc. Neither the execution nor the delivery of
this Agreement by CyberAmerica, nor the performance of any of its
obligations hereunder will result in a breach or violation of any law,
order, rule, regulation, writ, injunction or decree or any
governmental instrumentality or court having jurisdiction over
CyberAmerica or any of its assets or rights, or result in the creation
or imposition of any lien, charge or encumbrance of any kind whatever
on any of such assets or rights.
g. Financial Statements. CyberAmerica has delivered to the Company its
reports on Forms 10-QSB and 10-KSB for the past two years which
contain a consolidated balance sheet as of September 30, 1996, and the
related statement of consolidated income for the year then ended. Such
financial statements are complete, have been prepared in accordance
with generally accepted accounting principles consistently applied and
fairly present the consolidated financial position of CyberAmerica at
such date, and the results of its operations for the period therein
specified.
8. Conditions to Obligations of CyberAmerica. The obligations of CyberAmerica
under this Agreement are subject to the fulfillment, at or prior to the
Closing Date, of the following conditions precedent:
a. All representations and warranties of Investment Sanctuary and Richard
D. Surber contained herein and in any certificate or other investment
delivered pursuant to the provisions hereof, or in connection with the
transactions contemplated hereby, shall be true on the Closing Date
with the same force and effect as though such representations and
warranties had been made on the Closing Date.
b. Investment Sanctuary and Richard D. Surber shall have performed and
complied with all of the terms, covenants and conditions of this
Agreement to be performed or complied with by them, respectively, on
or before the Closing Date.
c. Richard D. Surber, as the President and sole Director of Investment
Sanctuary has taken all necessary action to authorize the execution
and performance of this Agreement.
<PAGE>
9. Conditions to Obligations of Investment Sanctuary and Richard D. Surber.
The obligations of Investment Sanctuary and Richard D. Surber under this
Agreement are subject to the fulfillment, on or before the Closing Date, of
the following conditions:
a. All representations and warranties of CyberAmerica contained
herein and in any certificate or other instrument delivered
pursuant to the provisions hereof, or in connection with the
transactions contemplated hereby, shall be true on the Closing
Date with the same force and effect as though such
representations and warranties had been made on the Closing Date.
b. CyberAmerica shall have performed and complied with all of the
terms, covenants and conditions of this Agreement to be performed
or complied with by it on or before the Closing Date.
c. The Board of Directors of CyberAmerica shall have taken all
necessary action to authorize the execution and performance of
this Agreement, including the delivery of shares of Common Stock
of CyberAmerica to Richard D. Surber in accordance with this
Agreement, and CyberAmerica shall have delivered to Richard D.
Surber true and complete copies of resolutions of its Board of
Directors evidencing such action.
10. Survival of Representations and Warranties; Indemnification.
a. Survival. All representations, warranties and agreements contained in
this Agreement shall survive the Closing notwithstanding any
investigation conducted with respect thereto; however, a party shall
have no liability with respect to a representation and warranty, or an
agreement to be performed or complied with prior to the Closing Date,
to the extent that the inaccuracy of such representation and warranty
or the failure to perform and comply with such agreement was not
intentional and was disclosed in a schedule delivered pursuant to this
Agreement.
b. Indemnification by Investment Sanctuary . Investment Sanctuary and
Richard D. Surber shall indemnify and hold harmless CyberAmerica, and
shall reimburse CyberAmerica for any loss, liability, claim, damage,
expense (including, but not limited to, costs of investigation and
defense and reasonable attorneys' fees) or diminution of value
(collectively "Damages") arising from or in connection with (a) any
inaccuracy in any of the representations and warranties of Investment
Sanctuary or Richard D. Surber in this Agreement, or any actions,
omissions or state of facts inconsistent with any such representation
or warranty, (b) any failure by Investment Sanctuary or Richard D.
Surber to perform or comply with any agreement in this Agreement.
c. Indemnification by CyberAmerica . CyberAmerica shall indemnify and
hold harmless Investment Sanctuary and Richard D. Surber, and shall
reimburse Investment Sanctuary for, any damages arising from or in
connection with (a) any inaccuracy in any of the representations and
warranties of CyberAmerica in this Agreement, or any actions,
omissions or state of acts inconsistent with any such representation
or warranty, (b) any failure by CyberAmerica to perform or comply with
any agreement in this Agreement.
11. Investment Representation. Richard D. Surber acknowledges his understanding
that the shares of CyberAmerica Common Stock to be delivered pursuant to
this Agreement will not be registered pursuant to the Securities Act of
1933, as amended and he further represents to and agrees with CyberAmerica
as follows:
<PAGE>
a. He is acquiring the shares of CyberAmerica Common Stock pursuant to
this Agreement for his own private personal investment account and
with no present intention of reselling or distributing such shares or
any portion thereof to others.
b. He fully comprehends that in connection with the issuance of shares of
CyberAmerica Common Stock pursuant to this Agreement, CyberAmerica is
relying to a material degree on the representations, warranties and
covenants contained herein, and with such realization he authorizes
CyberAmerica to act as it may see fit in full reliance hereon.
c. He agrees that none of such shares will be transferred or distributed
unless (i) they are covered by an effective Registration Statement
prepared in accordance with the Securities Act of 1933, as amended and
are distributed in a manner complying with such Act and with the Rules
and Regulations promulgated thereunder; or (ii) they may be
transferred in accordance with Rule 144 under the Securities Act of
1933, as amended (or such similar rules as may be applicable to such
shares at the time of transfer) so long as such transfer strictly
complies with said Rule 144 and with such procedures as CyberAmerica
may reasonably establish in connection therewith; or (iii) there is
first delivered to CyberAmerica the written legal opinion of legal
counsel in form and substance reasonably satisfactory to
CyberAmerica's legal counsel to the effect that such transfer or
distribution shall not result in a violation of the Securities Act of
1933, as amended. In the event such legal opinion is based upon the
exemption now contained in Section 4(2) of the 1933 Act, the person
acquiring the shares or some portion thereof shall execute and deliver
to CyberAmerica a letter agreement complying with the Securities Act
of 1933, as amended and the Rules and Regulations promulgated
thereunder.
d. He hereby agrees that the certificate(s) representing such shares may
bear a legend, as set forth below, setting forth the restrictions upon
transfer which are contained in the foregoing subparagraph (c) and
that CyberAmerica may deliver to its transfer agent a "stop transfer
order" directing the transfer agents not to effect any transfer of
such shares without having received the permission of CyberAmerica and
evidence of compliance with applicable provisions of the 1933 Act and
the terms of this Agreement.
The shares represented by this certificate have not
been registered under the Securities Act of 1933 (the
"Act") and are "restricted securities" as that term is
defined in Rule 144 under the Act. The shares may not
be offered for sale, sold or otherwise transferred
except pursuant to an effective Registration Statement
under the Act or pursuant to an exemption from
registration under the Act, the availability of which
is to be established to the satisfaction of
CyberAmerica.
e. He hereby agrees to indemnify CyberAmerica against and hold it
harmless from all losses, liabilities, costs and expenses (including
reasonable attorneys' fees) which shall arise as a result of a sale or
distribution by him of such shares or any portion thereof in violation
of the 1933 Act or the terms of this Agreement.
12. Brokers and Finders. Investment Sanctuary and Richard D. Surber represent
to CyberAmerica and CyberAmerica represent to Investment Sanctuary and
Richard D. Surber, that no person, firm or corporation has been requested,
authorized or employed by CyberAmerica or Investment Sanctuary or Richard
D. Surber to act as finder, broker or agent in connection with the subject
matter of this Agreement or negotiations leading thereto.
13. Further Assurances.
a. At the request of CyberAmerica, and without further consideration,
Investment Sanctuary and Richard D. Surber will execute and deliver
such additional instruments of transfer and will take such other
action as CyberAmerica reasonably may request in order more
effectively to transfer to CyberAmerica full ownership and control of
Investment Sanctuary, and specifically, its ownership interest in the
McIntyre Building, together with instruments evidencing the existing
liabilities of Investment Sanctuary, as well as the cancellation of
the Option.
b. At the request of Richard D. Surber, and without further
consideration, CyberAmerica will execute and deliver such additional
instruments and will take such other actions as Richard D. Surber may
reasonably request in order more effectively to carry out the
transaction contemplated by this Agreement.
14. Expenses. CyberAmerica shall bear all out-of-pocket expenses arising from
this Agreement, including but not limited to, travel, lodging, filing fees,
printing, postage, delivery, shipping, copying, telephone calls, overnight
packages, facsimiles, and other related expenses.
15. Other Matters.
a. No Other Agreements. All terms and conditions of this Agreement are
set forth herein, and there are no warranties, agreements or
understandings, express or implied, except those expressly set forth
herein.
b. Amendment. This Agreement may be amended only by a written instrument
signed by CyberAmerica and Richard D. Surber.
c. Notices. Any notice or other communication required or permitted to be
given hereunder shall be deemed properly given if personally delivered
or deposited in the United States mail, registered or certified and
postage prepaid, addressed to Richard D. Surber at 1448 South Roberta
Street, Salt Lake City, Utah 84115 or to CyberAmerica at 268 West 400
South, Suite 300, Salt Lake City, Utah 84101, or at such other
addresses as may from time to time be designated by the respective
parties in writing.
d. Specific Performance . The parties acknowledge that the subject matter
of this Agreement (i.e., the ownership interest of Investment
Sanctuary in the McIntyre Building ) is unique and that no adequate
remedy of law would be available for breach of this Agreement.
Accordingly, each party agrees that the other parties will be entitled
to an appropriate decree of specific performance or other equitable
remedies to enforce this Agreement (without any bond or other security
being required) and each party waives the defense in any action or
proceeding brought to enforce this Agreement that there exists an
adequate remedy at law.
e. Assignment . The rights and obligations of the parties shall inure to
the benefit of and shall be binding upon their successors and assigns.
<PAGE>
f. No Third Party Beneficiaries. Nothing in this agreement, expressed or
implied, is intended to confer upon any person, other than the parties
and their successors, any rights or remedies under or by reason of
this Agreement.
g. Paragraphs and Other Headings. Paragraphs or other headings contained
in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
h. No Waiver. The failure of any party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a
waiver or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement. Any
waiver must be in writing.
i. Choice of Law. It is the intention of the parties that the laws of the
State of Utah should govern the validity of this Agreement, the
construction of its terms and the interpretation of the rights and
duties of the parties.
j. Severability. In the event that any one or more of the provisions
contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable, the same shall not affect any other
provisions of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provisions had never been
contained herein.
k. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
written below to be effective as of October 31, 1996.
CyberAmerica Corporation
By:/s/ Susan Waldrop Date: December 30, 1996
Susan Waldrop, Chief Financial Officer
Investment Sanctuary
By:/s/ Richard D. Surber Date: December 30, 1996
Richard D. Surber, President
By: /s/ Richard D. Surber Date: December 30, 1996
Richard D. Surber, an Individual
<PAGE>
SCHEDULE A
The following represents the assets of Investment Sanctuary transferred to
Richard D. Surber in full satisfaction of any and all debt owed to Richard D.
Surber by Investment Sanctuary:
1. The balance of cash in Investment Sanctuary's savings account with the
Key Bank of Utah, account number 440589058245 ($7,407.96);
2. 1993 Volkswagon Corrado SLC; vehicle number WVWED4508PK004290. Richard
D. Surber shall assume the current note on the vehicle held by Key
Bank of Utah, loan number 009-000000000002450412, and release
Investment Sanctuary from such obligation;
3. 1984 190E Mercedes; vehicle number WDBDA24A5EA078433;
4. $15,000 cash from proceeds of the sale of the McIntyre Building;
5. Any and all right, title and interest in stock held in the Gruntel &
Co., Inc. brokerage account, account number 404-15384;
6. Any and all right, title and interest in stock held in the Canaccord
Capital Corporation brokerage account, account number 241201-B;
7. Any and all right, title and interest in any stock registered or
issued in the name of Richard D. Surber, which was issued or assigned
prior to October 31, 1996 as consideration for any services provided
by Investment Sanctuary.
<PAGE>
EXHIBIT B
AGREEMENT
THIS AGREEMENT ("Agreement") is entered into by and between Richard D.
Surber, an individual, and Investment Sanctuary Corporation ("Investment
Sanctuary"), a Utah corporation, on this 3rd day of January, 1996.
PREMISE
WHEREAS, Richard D. Surber is required to file Schedule 13D and
Investment Sanctuary is required to file an amendment to Schedule 13D as
promulgated under the Securities Act of 1933 ("Schedule 13D/A") due to their
respective ownership of common stock of CyberAmerica Corporation.
AGREEMENT
NOW, THEREFORE, based on the foregoing premises, which are incorporated
herein by this reference, and for and in consideration of the mutual covenants
and agreements contained herein, and in reliance on the representations and
warranties set forth in this Agreement, the benefits to be derived herein and
for other valuable consideration, the sufficiency of which is hereby expressly
acknowledged, the Parties agree as follows:
1. Richard D. Surber and Investment Sanctuary acknowledge that each
other is required to file with the Securities and Exchange Commission a
Schedule 13D and an amendment to a Schedule 13D, respectively, as a
result of Richard D. Surber's individual acquisition of Common Stock of
CyberAmerica and Investment Sanctuary's cancellation of an option to
purchase 25% of the issued and outstanding shares of Common Stock of
CyberAmerica, and, in the interest of consolidation and efficiency,
desire to file a single statement pursuant to Rule 13d-1(f) of the
Securities Exchange Act of 1934.
2. Richard D. Surber and Investment Sanctuary hereby consent to have a
single Schedule 13D/A filed pursuant to Rule 13d-1(f) as fulfillment of
the individual obligation of Richard D. Surber and the individual
obligation of Investment Sanctuary to file such a schedule in a joint
manner.
IN WITNESS WHEREOF, the signatures of the parties hereto evidence their
mutual assent and acceptance of this Agreement as of the date first set forth
above.
Richard D. Surber, an individual Investment Sanctuary, Corporation
/s/ Richard Surber /s/ Richard D. Surber
Richard Surber, President Richard D. Surber, President
