STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into this22nd
day of September, 2000 by and between CyberAmerica Corporation ("CyberAmerica")
a Nevada corporation with its principal office located at 268 West 400 South,
Suite 300, Salt Lake City, Utah 84101, and John R. Chapman, an individual
("Chapman") with principal offices located at 268 West 400 South, Suite 200,
Salt Lake City, Utah 84101.
WHEREAS, Chapman is currently an owner of 200,000 shares of the common
stock of Wasatch Capital Corporation, (the "Shares") which represent 20% of the
issued and outstanding shares of such stock;
WHEREAS, CyberAmerica is currently an owner of 200,000 shares of the
common stock of Wasatch Capital Corporation and desires to acquire from Chapman
the 200,000 shares that he holds in said Wasatch Capital Corporation; and
WHEREAS, Chapman and CyberAmerica wish to resolve all claims between
them and settle these obligations at the same time as the transfer of the
Chapman Shares in Wasatch Capital is made to CyberAmerica by Chapman.
NOW, THEREFORE with the above being incorporated into and made a part
hereof for the mutual consideration set out herein and, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Exchange. CyberAmerica will transfer to Chapman or assigns on September 20,
2000:
a. 146,286 restricted shares of the common stock of CyberAmerica.
b. 53,900 shares of CyberStudio, Inc., a Nevada corporation.
c. 100,000 shares of the common stock of Cyberbotanical, Inc., a Nevada
corporation.
d. 15,000 shares of Canton's Commercial Carpet Corporation.
e. 22,000 shares of West Jordan Real Estate Holdings, Inc. a Utah
corporation.
f. CyberAmerica will settle $12,951.40 of debts owed by Chapman to
Canton's Commercial Carpet Corporation for rent in the building
located at 268 West 400 South, Salt Lake City, Utah 84101.
and Chapman will:
a. Deliver the Shares (200,000 shares of common stock in Wasatch Capital
Corporation) with all the necessary executed medallion stock powers to
transfer ownership to CyberAmerica for delivery no later than
September 22, 2000.
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2. Termination. This Agreement may be terminated at any time prior to the
Closing Date:
A. By Chapman or CyberAmerica:
(1) If there shall be any actual or threatened action or
proceeding by or before any court or any other governmental body
which shall seek to restrain, prohibit, or invalidate the
transactions contemplated by this Agreement and which, in
judgement of such Board of Directors made in good faith and based
upon the advice of legal counsel, makes it inadvisable to proceed
with the transactions contemplated by this Agreement; or
(2) If the Closing shall have not occurred prior to September 29,
2000, or such later date as shall have been approved by parties
hereto, other than for reasons set forth herein.
B. By CyberAmerica:
(1) If Chapman shall fail to comply in any material respect with
any of his covenants or agreements contained in this Agreement or
if any of the representations or warranties of Chapman contained
herein shall be inaccurate in any material respect; or
C. By Chapman:
(1) If CyberAmerica shall fail to comply in any material respect
with any of its covenants or agreements contained in this
Agreement or if any of the representations or warranties of
CyberAmerica contained herein shall be inaccurate in any material
respect;
In the event this Agreement is terminated pursuant to this Paragraph,
this Agreement shall be of no further force or effect, no obligation, right, or
liability shall arise hereunder, and each party shall bear its own costs as well
as the legal, accounting, printing, and other costs incurred in connection with
negotiation, preparation and execution of the Agreement and the transactions
herein contemplated.
3. Representations and Warranties of Chapman. Chapman hereby represents and
warrants that effective this date and the Closing Date, the following
representations are true and correct:
A. Authority. Chapman has the full power and authority to enter this
Agreement and to carry out the transactions contemplated by this
Agreement.
B. No Conflict With Other Instruments. The execution of this Agreement
will not violate or breach any document, instrument, agreement,
contract, or commitment material to the business of Chapman to which
Chapman is a party and has been duly authorized by all appropriate and
necessary action.
C. Deliverance of Shares. As of the Closing Date, the Shares to be
delivered to CyberAmerica will be and constitute valid and legally
issued shares of Wasatch Capital Corporation, fully paid and
non-assessable and equivalent in all respects to all other issued and
outstanding shares of Wasatch Capital Corporation common stock.
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4. Representations and Warranties of CyberAmerica.
CyberAmerica hereby represents and warrants that, effective this date
and the Closing Date, the representations and warranties listed below are true
and correct.
A. Corporate Authority. CyberAmerica has the full corporate power and
authority to enter this Agreement and to carry out the transactions
contemplated by this Agreement. The Board of Directors of CyberAmerica
has duly authorized the execution, delivery, and performance of this
Agreement.
B. Guaranty for CyberAmerica Shares. For a period of three years from the
date hereof, should the complete liquidation of the 146,286 shares of
CyberAmerica stock transferred to Chapman fail to generate $146,286 in
gross proceeds from sales into the marketplace, CyberAmerica will, at
its option, either issue sufficient new shares to cover the shortfall,
valued at the bid price on the date of such a claim or make a payment
in cash for the amount of any such shortfall. No duty or obligation
falls upon CyberAmerica until written notification of a claim under
this paragraph is received by CyberAmerica and no claim may be
submitted after the date that this guaranty expires.
B. No Conflict With Other Instruments. The execution of this Agreement
will not violate or breach any document, instrument, agreement,
contract, or commitment material to the business of CyberAmerica to
which CyberAmerica is a party and has been duly authorized by all
appropriate and necessary action.
5. Closing. The Closing as herein referred to shall occur upon such date as
the parties hereto may mutually agree upon, but is expected to be on or
before September 22, 2000.
6. Conditions Precedent of CyberAmerica to Effect Closing. All obligations of
Chapman under this Agreement are subject to fulfillment prior to or as of
the Closing Date, as follows:
A. The representations and warranties by or on behalf of CyberAmerica
contained in this Agreement or in any certificate or documents
delivered to CyberAmerica pursuant to the provisions hereof shall be
true in all material respects as of the time of Closing as though such
representations and warranties were made at and as of such time.
B. CyberAmerica shall have performed and complied with all covenants,
agreements and conditions required by this Agreement to be performed
or complied with by it prior to or at the Closing.
C. All instruments and documents delivered to CyberAmerica pursuant to
the provisions hereof shall be reasonably satisfactory to
CyberAmerica's legal counsel.
7. Conditions Precedent of Chapman to Effect Closing. All obligations of
CyberAmerica under this Agreement are subject to fulfillment prior to or as
of the date of Closing, as follows:
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A. The representations and warranties by or on behalf of Chapman
contained in this Agreement or in any certificate or documents
delivered to Chapman pursuant to the provisions hereof shall be true
in all material respects at and as of the time of Closing as though
such representations and warranties were made at and as of such time.
B. Chapman shall have performed and complied with all covenants,
agreements and conditions required by this Agreement to be performed
or complied with by it prior to or at the Closing.
C. All instruments and documents delivered to Chapman pursuant to the
provisions hereof shall be reasonably satisfactory to Chapman's legal
counsel.
8. Damages and Limit of Liability. Each party shall be liable, for any
material breach of the representations, warranties, and covenants contained
herein which results in a failure to perform any obligation under this
Agreement, only to the extent of the expenses incurred in connection with
such breach or failure to perform Agreement.
9. Nature and Survival of Representations and Warranties. All representations,
warranties and covenants made by any party in this Agreement shall survive
the Closing hereunder. All of the parties hereto are executing and carrying
out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement or at the Closing of the transactions herein provided for and not
upon any investigation which it might have made or any representations,
warranty, agreement, promise, or information, written or oral, made by the
other party or any other person other than as specifically set forth
herein.
10. Indemnification Procedures. If any claim is made by a party which would
give rise to a right of indemnification under this paragraph, the party
seeking indemnification (Indemnified Party) will promptly cause notice
thereof to be delivered to the party from whom indemnification is sought
(Indemnifying Party). The Indemnified Party will permit the Indemnifying
Party to assume the defense of any such claim or any litigation resulting
from the claims. Counsel for the Indemnifying Party which will conduct the
defense must be approved by the Indemnified Party (whose approval will not
be unreasonable withheld), and the Indemnified Party may participate in
such defense at the expense of the Indemnified Party. The Indemnifying
Party will not in the defense of any such claim or litigation, consent to
entry of any judgement or enter into any settlement without the written
consent of the Indemnified Party (which consent will not be unreasonably
withheld). The Indemnified Party will not, in connection with any such
claim or litigation, consent to entry of any judgement or enter into any
settlement without the written consent of the Indemnifying Party (which
consent will not be unreasonably withheld). The Indemnified Party will
cooperate fully with the Indemnifying Party and make available to the
Indemnifying Party all pertinent information under its control relating to
any such claim or litigation. If the Indemnifying Party refuses or fails to
conduct the defense as required in this Section, then the Indemnified Party
may conduct such defense at the expense of the Indemnifying Party and the
approval of the Indemnifying Party will not be required for any settlement
or consent or entry of judgement.
11. Default at Closing. Notwithstanding the provisions hereof, if Chapman shall
fail or refuse to deliver any of the Shares, or shall fail or refuse to
consummate the transaction described in this Agreement prior to the Closing
Date, such failure or refusal shall constitute a default by Chapman and
CyberAmerica at its option and without prejudice to its rights against such
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defaulting party, may either (a) invoke any equitable remedies to enforce
performance hereunder including, without limitation, an action or suit for
specific performance, or (b) terminate all of its obligations hereunder
with respect to Chapman.
12. Costs and Expenses. CyberAmerica and Chapman shall bear their own costs and
expenses in the proposed exchange and transfer described in this Agreement.
CyberAmerica and Chapman have been represented by their own attorneys in
this transaction, and shall pay the fees of their attorneys, except as may
be expressly set forth herein to the contrary.
13. Notices. Any notice under this Agreement shall be deemed to have been
sufficiently given if sent by registered or certified mail, postage
prepaid, addressed as follows:
To Chapman: To CyberAmerica:
268 West 400 South, Suite 200 CyberAmerica Corporation
Salt Lake City, Utah 84101 268 West 400 South, Suite 300
Salt Lake City, Utah 84101
14. Miscellaneous.
A. Further Assurances. At any time and from time to time, after the
effective date, each party will execute such additional instruments
and take such additional steps as may be reasonably requested by the
other party to confirm or perfect title to any property transferred
hereunder or otherwise to carry out the intent and purposes of this
Agreement.
B. Waiver. Any failure on the part of any party hereto to comply with any
of its obligations, agreements, or conditions hereunder may be waived
in writing by the party to whom such compliance is owed.
C. Brokers. Neither party has employed any brokers or finders with regard
to this Agreement not disclosed herein.
D. Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
E. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
F. Governing Law. This Agreement was negotiated and is being contracted
for in the State of Utah, and shall be governed by the laws of the
State of Utah, notwithstanding any conflict-of-law provision to the
contrary. Any suit, action or legal proceeding arising from or related
to this Agreement shall be submitted for binding arbitration
resolution to the American Arbitration Association, in Salt Lake City,
Utah, pursuant to their Rules of Procedure or any other mutually
agreed upon arbitrator. The parties agree to abide by decisions
rendered as final and binding, and each party irrevocably and
unconditionally consents to the jurisdiction of such Courts in such
suit, action or legal proceeding and waives any objection to the
laying of venue in, or the jurisdiction of, said Courts.
G. Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective
heirs, administrators, executors, successors, and assigns.
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H. Entire Agreement. The Agreement contains the entire agreement between
the parties hereto and supersedes any and all prior agreements,
arrangements or understandings between the parties relating to the
subject matter hereof. No oral understandings, statements, promises or
inducements contrary to the terms of this Agreement exist. No
representations, warranties, covenants, or conditions express or
implied, other than as set forth herein, have been made by any party.
I. Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
Chapman CyberAmerica, Inc.,
a Nevada corporation
/s/ John R. Chapman By:/s/Richard D. Surber
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John R. Chapman Name: Richard D. Surber
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