As filed with the Securities and Exchange Commission on February 13, 1997
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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WESTMARK GROUP HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3784149
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
355 N.E. Fifth Avenue Mark Schaftlein
Delray Beach, Florida 33483 355 N.E. Fifth Avenue
(561) 243-8010 Delray Beach, Florida 33483
(Name, address, including zip code,
(Address, including zip code, and and telephone number, including
telephone number, including area code, of agent for service)
area code of registrant's
principal executive offices)
INEGRATED AGREEMENTT
FOR SALE OF STOCK
(Full Title of the Plan)
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COPY TO:
Thomas C. Pritchard
Brewer & Pritchard, P.C.
1111 Bagby, 24th Floor
Houston, Texas 77002
Phone (713) 659-1744
Fax (713) 659-2430
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================= ====================== ====================== ================= ===================
Proposed
Proposed Maximum
TITLE OF Maximum Aggregate Amount of
SECURITIES TO BE Amount Being Offering Price Offering Registration
REGISTERED Registered(1) Per Share(2) Price(2) Fee
- --------------------------------- ---------------------- ---------------------- ----------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share.................. 25,500 $1.15 $29,325 $100.00
================================= ====================== ====================== ================= ===================
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
number of shares of the issuer's Common Stock registered hereunder will
be adjusted in the event of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457, on the basis of the average of
the last sales price of the Common Stock as reported by the Nasdaq
SmallCap Market for the previous three days.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Westmark Group Holdings, Inc.
("Company" or "Registrant") with the Securities and Exchange Commission are
incorporated herein by reference:
1. The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
or, either (i) the Company's latest prospectus filed pursuant to Rule 424(b)
under the Securities Act of 1933, as amended ("Securities Act") that contains
audited financial statements for the Company's latest fiscal year for which such
statements have been filed, or (ii) the Company's effective Registration
Statement on Form 10 or Form 10-SB filed under the Exchange Act containing
audited financial statements for the Company's latest fiscal year.
2. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (1) above.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to the Registration Statement which indicates that all
shares of common stock offered have been sold or which deregisters all of such
shares then remaining unsold, shall be deemed to be incorporated by reference in
the Registration Statement and to be a part thereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Under the Company's Certificate of Incorporation, the authorized
capital stock of the Company consists of 60 million shares, of which 50 million
shares are Common Stock and 10 million shares are preferred stock. As of the
date of this Prospectus, the Company had outstanding 4,630,780 shares of Common
Stock and 118,750 shares of Series A Preferred Stock, 300,000 shares of Series B
Preferred Stock, 200,000 shares of Series C Preferred Stock, 50,000 shares of
Series D Preferred Stock held of record by 59 persons, and 130,000 shares of
Series E Preferred Stock. The Company has reserved 218,483 shares for issuance
upon exercise of outstanding Options, 1,671,993 shares for issuance upon
exercise of Warrants, 3,194,994 shares for issuance upon conversion of the
Preferred Stock.
The following summary description of the securities of the Company is
qualified in its entirety by reference to the Certificate of Incorporation, a
copy of which is filed as an exhibit to the Registration Statement of which this
Prospectus is a part.
COMMON STOCK
The holders of Common Stock are entitled to one vote per share with
respect to all matters required by law to be submitted to stockholders of the
Company. The holders of Common Stock have the sole right to vote, except as
otherwise provided by law or by the Company's Certificate, including provisions
governing any preferred stock. The Common Stock does not have any cumulative
voting, preemptive, subscription or conversion rights. Election of directors and
other general shareholder action requires the affirmative vote of a majority of
shares represented at a meeting in which a quorum is represented. The
outstanding shares of Common Stock are, and the shares of Common Stock offered
hereby will be, upon payment therefor as contemplated herein, validly issued,
fully paid and non-assessable.
Subject to the rights of any outstanding shares of preferred stock, the
holders of Common Stock are entitled to receive dividends when, as and if
declared by the Board of Directors out of funds legally available therefor. In
the event of liquidation, dissolution or winding up of the affairs of the
Company, the holders of Common Stock are entitled to share ratably in all assets
remaining available for distribution to them after payment or provision for all
liabilities and any preferential liquidation rights of any preferred stock then
outstanding.
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PREFERRED STOCK
The Board of Directors is authorized, without action by the holders of
the Common Stock, to provide for the issuance of the preferred stock in one or
more series, to establish the number of shares to be included in each series and
to fix the designations, powers, preferences and rights of the shares of each
such series and the qualifications, limitations or restrictions thereof. This
includes, among other things, voting rights, conversion privileges, dividend
rates, redemption rights, sinking fund provisions and liquidation rights which
shall be superior to the Common Stock. The issuance of one or more series of the
preferred stock could adversely affect the voting power of the holders of the
Common Stock and could have the effect of discouraging or making more difficult
any attempt by a person or group to attain control of the Company. The Company
has no present plans to issue any additional shares of preferred stock.
SERIES A PREFERRED STOCK. In April 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 200,000 shares of series A
cumulative preferred stock ("Series A Preferred Stock"). In April 1996, an
aggregate of 100,000 shares of Series A Preferred Stock were issued with an
aggregate stated value of $400,000 to Mr. Hollenbeck and an aggregate of 18,750
shares of Series A Preferred Stock were issued to an unaffiliated third party.
The Series A Preferred Stock has a liquidation preference of $4 per share, plus
any accrued unpaid dividends, is redeemable by the Company at a redemption price
of $4 per share, plus accrued unpaid dividends to the date of redemption, after
October 1, 1996 the holder can force redemption by the Company upon the same
redemption terms that the Company possesses, and does not have any voting
rights. The shares of Series A Preferred Stock are convertible into shares of
Common Stock at the lessor or (i) $1.50 or (ii) 84% of the closing bid price on
the day prior to conversion (subject to adjustment).
SERIES B PREFERRED STOCK. In April 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 300,000 shares of series B
cumulative preferred stock ("Series B Preferred Stock"). In April 1996, an
aggregate of 300,000 shares of Series B Preferred Stock were issued with an
aggregate stated value of $600,000. The Series B Preferred Stock has a
liquidation preference of $2 per share, plus any accrued unpaid dividends, is
redeemable by the Company at a redemption price of $2 per share, plus accrued
unpaid dividends to the date of redemption, and does not have any voting rights.
The shares of Series B Preferred Stock are convertible by the holders in shares
of Common Stock at the lesser of (i) $2.00 or (ii) 84% of the closing bid price
on the day prior to conversion (subject to adjustment). The shares of Series B
Preferred Stock automatically convert, at the above referenced conversion rate,
into shares of Common Stock in April 1998.
SERIES C PREFERRED STOCK. In March 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 500,000 shares of series C
cumulative preferred stock ("Series C Preferred Stock"). Effective March 1996,
an aggregate of 200,000 shares of Series C Preferred Stock were issued with an
aggregate stated value of $700,000. Upon the closing of the Westmark-Medical
Industries Agreement, the 200,000 shares of Series C Preferred Stock will be
redeemed by the Company and, for purposes of this Prospectus, are not deemed
outstanding.
SERIES D PREFERRED STOCK. In August 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 1,000,000 shares of series D
convertible preferred stock ("Series D Preferred Stock"). In August 1996, an
aggregate of 200,000 shares of Series D Preferred Stock were issued with an
aggregate stated value of $1,000,000. The Series D Preferred Stock pays interest
quarterly at 10% per annum. The Series D Preferred Stock has a liquidation
preference of $5 per share, is redeemable by the Company and does not have any
voting rights. The shares of Series D Preferred Stock are convertible by the
holders in shares of Common Stock at 100% of the closing bid price on the day of
conversion.
SERIES E PREFERRED STOCK. In July 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 130,000 shares of series E
convertible preferred stock ("Series E Preferred Stock"). In July 1996, an
aggregate of 130,00 shares of Series E Preferred Stock were issued with an
aggregate stated value of $1,300,000. The 130,000 shares of Series E Preferred
Stock will be converted by the holder at the price of $.45 per share, for the
issuance of 2,888,889 shares of Common Stock upon the closing of the
Westmark-GTB Agreement, and for purposes of this Prospectus are not deemed
outstanding.
SERIES F PREFERRED STOCK. In August 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 1,000,000 shares of series F
convertible
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preferred stock ("Series F Preferred Stock"). The Series F Preferred Stock has a
liquidation preference of $5 per share, is redeemable by the Company and does
not have any voting rights. The shares of Series F Preferred Stock are
convertible by the holders in shares of Common Stock at the greater of (i) $1.00
or (ii) the average closing bid price for the five days prior to conversion
(subject to adjustment).
WARRANTS
There are warrants outstanding authorizing the holders to purchase an
aggregate of 1,671,993 shares of Common Stock, currently exercisable and
expiring between one and eight years from the date of this Prospectus at
exercise prices between $1.00 and $9.00.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
A. The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
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<PAGE>
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
B. The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
C. To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (A) and (B), or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
D. Any indemnification under subsections (A) and (B) (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (A) and (B). Such
determination shall be made (i) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(ii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iii) by the stockholders.
E. Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized by the Certificate of Incorporation. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
F. The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
G. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the Certificate of Incorporation.
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H. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration
Statement:
4.1(1) Form of specimen Common Stock
5.1(2) Opinion Regarding Legality
10.1(2) Integrated Agreement for Sale of Stock
24.1(2) Consent of Comiskey & Company, P.C.
24.2(2) Consent of Cassidy & Associates (Contained in Exhibit 5.1)
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(1) The information required by this exhibit is incorporated by reference
to the exhibits filed in connection with the Company's Registration
Statement on Form SB-2 (Commission File No. 333-05599)
(2) Filed herewith.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
i. To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
ii. To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement; and
iii. To include any additional or changed
material information with respect to the
plan of distribution.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a
new registration statement relating to the
securities offered therein, and the offering of
such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities
being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form SB-2 and authorized this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Delray, State of Florida, on the 13th day of
February, 1997.
Westmark Group Holdings, Inc.
By /s/ MARK SCHAFTLEIN
Mark Schaftlein, President, Chief Executive
Officer and Director
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
/s/ MARK SCHAFTLEIN President, Chief Executive February 13, 1997
Mark Schaftlein Officer and Director
/s/ NORMAN H, BIRMINGHAM Director and Chief Financial February 13, 1997
Norman J. Birmingham Officer
/s/ TODD WALKER Director February 13, 1997
Todd Walker
/s/ LOUIS RESWEBER Director February 13, 1997
Louis Resweber
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EXHIBIT 5.1
[CASSIDY & ASSOCIATES LETTERHEAD]
February 11, 1997
Board of Directors
Westmark Group Holdings, Inc.
355 N.E. Fifth Avenue
Delray Beach, Florida 33483
Gentlemen:
This opinion letter is submitted to you in conformance with Item 601 of
Regulation S-B of the Securities and Exchange Commission with respect to the
registration on Form S-8 (the "Registration Statement") by Westmark Group
Holdings, Inc., a Delaware corporation, ("the Company") of 25,500 shares of
Common Stock, $.001 par value per share ("the Shares"), to be issued to Desmond,
Miller & Desmond.
We have examined the original, certified, conformed, photostatic,
electronic, facsimile or other forms of such corporate records, resolutions,
certificates, authorizations or other documents as we have considered relevant
to our opinion. In all such examinations, we have assumed the genuiness of all
signatures on original documents and the conformity to originals and certified
documents of all copies submitted to us as conformed, photostatic, electronic or
facsimile copies. In reviewing corporate records and other documents, we have
assumed the accuracy of those records and documents. We have consulted with such
officers, directors, employees, and advisors of the Company in regard to
questions of material fact as we have considered relevant to our opinion, and
have relied upon the accuracy and completeness of the statements and
representations of such persons. We have examined such laws, statutes, judicial
or administrative decrees, interpretations and opinions, and such other sources
as we have considered material to the legal issues relevant to our opinion.
Based upon and in reliance on the foregoing, we are of the opinion that the
Shares have been duly authorized for issue and that the Shares, when issued as
authorized by the Board of Directors of the Company, will be duly authorized and
validly issued, fully paid and non-assessable.
<PAGE>
We hereby consent to the inclusion of this opinion letter in the
Registration Statement to be filed with the Securities and Exchange Commission.
Sincerely,
Cassidy & Associates
By /s/ JAMES MICHAEL CASSIDY
James Michael Cassidy, Esq.
EXHIBIT 10.1
INTEGRATED AGREEMENT
FOR SALE OF STOCK
This Agreement is made this 19th day of April, 1996 by and among ECS
International, Inc. (Seller), Green World Technologies, Inc., a Nevada
corporation (Corporation), and Heart Labs of America, Inc., a Florida
corporation (Purchaser).
Recitals
This Agreement is made with reference to the following facts:
1. The Seller owns all of the issued and outstanding shares of common stock of
the Corporation.
2. Seller has been appointed as the sole officers and directors of the
Corporation and have, in fact, been acting in that capacity.
3. Seller wishes to divest themselves of all Seller's interest in the
Corporation pursuant to the terms and conditions of this Agreement.
4. Seller desires to sell to Purchaser and the Purchaser desires to purchase all
of the outstanding shares of common stock of the Corporation.
5. Purchaser is willing and able to acquire Seller's interest in the Corporation
pursuant to the terms hereof.
Agreement
1. SUBJECTS OF AGREEMENT. The subjects of this Agreement are the purchase of
Seller's common stock in the Corporation; indemnification between Seller and
Purchaser; and consulting services made available by Seller to Purchaser.
2. SALE OF STOCK. On the Closing Date (which shall be simultaneous with the
execution of this Agreement unless another date is agreed on by the parties in
writing), the Seller shall transfer to the Purchaser stock certificates
representing 100% of the shares of common stock of the Corporation, free and
clear of all liens, encumbrances, equities, and claims, together with written
resignations of all officers and directors of the Corporation.
3. OBLIGATIONS OF PURCHASER. In partial consideration for the purchase of stock
as contemplated herein, the Purchaser is obligated to do the following:
(a) Purchaser agrees to provide the funds necessary to resolve the
following legal disputes the cost of which is estimated
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as follows:
(1) enforcement of ECS' rights under the ASSI Settlement Agreement
($20,000);
(2) payment of ECS' attorneys' fees for the ASSI case ($25,000);
(3) defense of the GOULD lawsuit and enforcement of Settlement
Agreement ($125,000 to $215,000);
(4) defense of the CAMPOS lawsuit ($5,000 to $125,000);
(5) defense of the HAMEDANI claim ($5,000);
(b) Purchaser shall issue to ECS International, Inc. Lenders shares of
Heart Labs of America, Inc. preferred stock which is estimated to have a value
of $250,000 at a price of %5.00 per share and may be converted to common stock
at 85% of the then market value of such common stock. Seller shall provide
Purchaser with the names and respective number of preferred shares to be issued
to each Lenders;
(c) Purchaser shall issue to ECS International, Inc., 100,000 shares of
Heart Labs of America, Inc. common stock with the following restrictions: ECS
International, Inc, may not sell any portion of the 100,000 shares of common
stock issued pursuant to this Paragraph at a rate greater than (i) 5,000 shares
per month; or (ii) 10% of the prior day's volume not to exceed 20,000 shares per
month.
4. CASH CONSIDERATION FOR TRANSFERRED SHARES. In payment for the shares
transferred under Paragraph 2, the following shall delivered to the Seller on
the Closing Date:
(a) A bank wire in the amount of One Hundred Thousand Dollars
($100,000.oo) payable to Greenworld Technologies, Inc. and extinguishment of the
Bridge Loan and Security Agreement dated February 2, 1996 attached hereto as
Exhibit A.
(b) Payment of the liabilities described in Paragraph 3(a) and funding of
operating capital, independent of any other funding obligations set forth in
this agreement, i.e. the approximate $200,000.00 estimated expense of
establishing world-wide patents for the Talon, as needed during the calendar
year 1996 in an amount no less than Three Hundred Thousand Dollars
($300,000.00).
5. SELLER'S REPRESENTATIONS AND WARRANTIES. The Seller represents and warrants
to the Purchaser that as of the date of the closing:
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(a) The Corporation is a Corporation duly organized, validly existing, and
in good standing under the laws of the State of Nevada.
(b) The authorized capital stock of the Corporation consists of 25,000
shares of no par value common stock, of which 1 share is issued and outstanding
to ECS International, Inc.; all the outstanding common stock have been validly
issued and is fully paid and non-assessable; and there are no outstanding
options, warrants, or commitments of any nature relating to the issued or
unissued common stock of the Corporation.
(c) The Corporation has no subsidiaries.
(d) The Seller is the record and beneficial owner of all of the
outstanding common stock, has full right, power, authority, and capacity to
sell, transfer, and deliver the common stock in accordance with the terms of
this Agreement; and upon delivery thereof as herein contemplated, the Purchaser
and the Corporation will receive good and marketable title to the shares
delivered, free and clear of any claims, liens, pledges, and encumbrances of any
kind.
(e) The consummation of the transactions contemplated by this Agreement
will not breach the Articles of Incorporation or Bylaws or any resolution of the
board of directors or stockholders of the Corporation, or breach, constitute a
default in, or result in the acceleration of any obligation under any loan
agreement, indenture, lease or other agreement to which the Corporation is a
party.
6. RESIGNATION OF RETIRING SHAREHOLDER FROM CORPORATE OFFICE. This will
acknowledge that, upon the effective date of this agreement, the Seller's
principals shall resign from the board of directors of the Corporation and shall
further resign as officers and employees of the Corporation. Purchaser shall
immediately re-employ Gary Phillippe as Engineer/Technical Advisor, Ted Bristow
as President/Chief Executive Officer consistent with the terms of the Employment
Agreements attached hereto as Exhibit D.
7. PURCHASER'S OBLIGATIONS AT CLOSING. At closing, the Purchaser shall deliver
or cause to be delivered to Seller the following:
A. An immediate wire transfer in the amount of One Hundred Thousand
Dollars ($100,000.00) made payable to Green World Technologies, Inc.;
B. The original Bridge Loan Note and Security Agreement endorsed "paid in
full" and conforming U.C.C. releases;
C. A validly executed Stock Option Agreement between
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<PAGE>
Purchaser and ECS International, Inc. authorizing ECS International, Inc. the
option to purchase 900,000 shares of common stock of Purchaser at $1.50 per
share attached hereto as Exhibit "B";
D. A validly executed Independent Contractor Agreement between Purchaser
and ECS International, Inc. attached hereto as Exhibit "C";
E. Purchaser's acknowledgement of the Employment Contracts for Gary
Phillippe, Ted Bristow and Tom Stoermer with Green World Technologies, Inc.
attached hereto as Exhibit "D";
F. Purchaser's acknowledgement of acceptance of the Patent License
Agreement between ECS International, Inc. and Green World Technologies, Inc.
attached hereto as Exhibit "E";
G. Purchaser's execution of the Distribution Agreement attached hereto as
Exhibit "F"; and
H. Certified copies of corporate resolutions authorizing the execution of
documents described in Paragraphs 7 A, B, C, D, E, F and G.
8. SELLER'S OBLIGATIONS AT CLOSING. At closing, Seller shall deliver or cause to
be delivered to the corporation the following:
A. The certificates representing the shares, duly endorsed by Seller for
transfer; and
B. Seller's resignation as directors and officers of the corporation.
9. PURCHASER'S RIGHTS SUBJECT TO DISTRIBUTION AGREEMENT. Following the execution
of this Agreement, when the aggregate gross sales of the corporation exceed One
Hundred Million Dollars ($100,000,000.00), Purchaser agrees to transfer all of
the issued common stock in the Corporation as follows:
50.1% to ECS International, Inc. as deferred payment for entering into the
Patent License Agreement with the corporation on terms favorable to the
Purchaser, and 49.9% to the then existing shareholders of the Purchaser as a
dividend, pursuant to the terms of the conditions of the Distribution Agreement
attached hereto as Exhibit "F".
10. DUTY TO PERFORM ALL OBLIGATIONS. The parties agree to do all things
necessary to consummate this transaction.
11. AUTHORITY AND CONSENTS. Each of the respective parties have the right,
power, legal capacity, and authority to enter into, and to perform their
respective obligations under this Agreement, and
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no approvals or consents of any persons other than as specified herein are
necessary in connection with it. The execution and delivery of this Agreement by
the parties has been duly authorized as appropriate. To the extent required,
this Agreement will constitute a meeting of the shareholders and board of
directors of the Corporation, notice being waived, approving all of the terms
and conditions set forth herein and in the attached documents.
12. CORPORATE BOOKS AND RECORDS. Prior to the execution of this Agreement, all
books, records, ledgers, check registers and other financial records, and the
Articles of Incorporation, Bylaws, Minutes and other corporation records, have
been delivered to the Corporation.
13. EMPLOYMENT AGREEMENTS. The attached Exhibit "D" sets forth the terms and
conditions in which Gary Phillippe, Ted Bristow and Tom Stoermer will be
employed for the benefit of the Corporation. The Corporation and Purchaser
acknowledge the need to retain Seller given Seller's vast knowledge and
experience in the management and development of the Talon.
14. EXPENSES. Each party shall pay all costs and expenses incurred or to be
incurred by it in negotiating and preparing this Agreement and in closing and
carrying out the transactions contemplated by this Agreement.
15. EFFECT OF HEADINGS. The subject headings of the paragraphs of this Agreement
are included for convenience only and shall not affect the construction or
interpretation of any of its provisions.
16. ENTIRE AGREEMENT; MODIFICATION; WAIVER. This Agreement constitutes the
entire agreement between the parties pertaining to the subject matter contained
in it and supersedes all prior and contemporaneous agreements, representations
and understandings of the parties. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by all the parties.
No waiver shall be binding unless executed in writing by the party making the
waiver.
17. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
18. PARTIES IN INTEREST. Nothing in this Agreement, whether express or implied,
is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over or against any party to this Agreement.
19. ASSIGNMENT. This Agreement shall be binding on, and shall inure to the
benefit of, the parties to it and their respective heirs, legal representatives,
successors and assigns. It is contemplated that the Corporation may be
reorganized by way of a change in name and that said successor entity shall be
bound by this Agreement. Except as provided for herein, no party may assign this
Agreement without the written consent of the other party.
20. ATTORNEY'S FEES AND COSTS. If any action or other proceeding is brought for
the enforcement or the interpretation of this Agreement or because of an alleged
dispute, default or misrepresentation in connection with any of its provisions,
the successful or prevailing party shall be entitled to recover reasonable
attorney's fees and other costs incurred in any action or proceeding, in
addition to any relief to which it may be entitled.
21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations, warranties,
covenants and agreements of the parties contained in this Agreement or in any
instrument or other writing provided for in it shall survive the Closing.
22. NOTICES. Any notice to the parties required or permitted under this
Agreement shall be given in writing. The notice shall be deemed to have been
given at the following times: (a) on the date of service if served personally on
the party to whom notice is to be given; (b) on the first day after transmission
if transmitted by telex or electronic facsimile; (c) on the second day after
deposit if deposited with an overnight express courier service; or (d) on the
second day after mailing if mailed to the party to whom notice is to be given by
first class mail, postage prepaid, addressed to the parties as follows:
Corporation: Green World Technologies, Inc.
a Nevada corporation
P.O. Box 989
Valley Springs, CA 95252
Seller: Gary Phillippe
7263 Larchmont Dr.
North Highlands, CA 95660
Ted Bristow
6130 McAllie, P.O. Box 989
Valley Springs, CA 95252
Purchaser: Heart Labs of America, Inc.
a Florida corporation
2650 N Military Tr, Ste 230
Boca Raton, FL 93431
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With copy to: J. Russell Cunningham
Desmond, Miller & Desmond
1006 Fourth St., 10th Floor
Sacramento, CA 95814
Any party may change its address for purposes of this paragraph by giving the
other party written notice of the new address in the manner set forth above.
23. GOVERNING LAW. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of California.
24. SEVERABILITY. If any provision of this Agreement shall be invalid, illegal
or unenforceable in any respect, such provision shall be deemed ineffective to
the extent of such invalidity, illegality or unenforceability without
invalidating or impairing the remainder of such provision or the remaining
provisions of this Agreement.
25. RECITALS AND EXHIBITS. The recitals and exhibits contained in and attached
to this Agreement are hereby made a part of this Agreement.
26. NEGOTIATIONS AND CONSTRUCTION. This Agreement has been prepared after
negotiations between the parties with assistance of counsel of their choice. No
rule of construction pertaining to interpretation of the provisions herein
against the drafter hereof shall apply.
28. VENUE. This Agreement may be enforced in the Superior Court of the State of
California for the County of Sacramento or in the U.S. District Court, Eastern
District of the State of California.
SELLER: ECS International, Inc.
By /s/ GARY PHILLIPPE
Title: President
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Acknowledged by:
PURCHASER: Green World Technologies, Inc.
a Nevada corporation
By: Gary Phillippe
Title: President
Heart Labs of America, Inc.
a Florida corporation
By: /s/ NORMAN H. BIRMINGHAM
Title: President
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EXHIBIT 24.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Form S-8 registration
statement of our report, dual dated March 20, 1996 and April 19, 1996, on the
financial statements of Westmark Group Holdings, Inc., and to reference to our
firm under the caption "experts" in the prospectus.
Aurora, Colorado
February 11, 1997 COMISKEY & COMPANY, A
PROFESSIONAL CORPORATION
