SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 of 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 20, 1997
CETACEAN INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
NEVADA 33-55254-22 87-0438633
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
3098 SOUTH HIGHLAND DRIVE, SUITE 460
SALT LAKE CITY, UTAH 84106
(Address of principal executive offices) (Zip Code)
(Zip Code)
Registrant's telephone number, including area code: (801) 485-7775
(1)
<PAGE>
Item 1. Changes in control of Registrant.
On August 12, 1997 the Registrant entered into an agreement with Roche
Holdings (Espana S.A.), hereinafter "Roche" to acquire Juina Mining Company,
Inc, a Nevada Corporation, hereinafter "Juina" as a wholly owned subsidiary. The
Registrant, pursuant to said agreement, has issued to Roche 4,000,000 shares of
its common stock in exchange for all of the outstanding stock of Juina. This
agreement was closed August 20, 1997. (See Exhibit 2.1)
The following table sets forth information concerning the persons
acquiring control of the Registrant by reason of the issuance of shares.
Pursuant to the agreement whereby the Registrant acquired Juina Mining Company,
Inc. All persons holding Five Percent (5%) or more of the Registrant's common
stock are included:
Name No. of Shares % of Registrant
- ----------------------------------------------------------------------
ROCHE HOLDINGS 4,000,000 80.00%
(ESPANA S.A.)
CAPITAL GENERAL CORPORATION 505,800 10.11%
YEAMAN ENTERPRISES, INC. 300,000 6.00%
(2)
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Security Ownership of Management:
The following table describes the security ownership of management. All
shares included are common shares.
Name of Amount of Percent
Beneficial Owner Beneficial Ownership of Class
- --------------------------------------------------------------------------
None
Security Ownership of Certain Beneficial Owners:
The following table describes the beneficial owners of Registrant who
own more than five percent (5%) of the outstanding shares. All shares included
are common shares.
Name and Address of Amount of Percent
Beneficial Owner Beneficial Ownership of Class
- --------------------------------------------------------------------------
Roche Holdings (Espana S.A.) 4,000,000 80.00%
P.O. Box 866
Anderson Square Bldg.
Grand Cayman, BWI
Capital General Corporation 505,800 10.11%
3098 So. Highland Drive, Suite 460
Salt Lake City, Utah 84106
Yeaman Enterprises, Inc. 300,000 6.00%
3098 So. Highland Drive, Suite 460
Salt Lake City, Utah 84106
(3)
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Item 2. Acquisition or Disposition of Assets
See Item 1.
Item 5. Other Events
At a meeting of the Board of Directors of the Registrant held August
20, 1997 Krista Nielson and Sasha Belliston resigned as Officers and Directors
and the following persons were appointed to serve as Directors and Officers
until the next annual or special meeting of the shareholders of the company.
Craig A. Hurst Director/President
Noel Frenzel Director/Secretary Treasurer
Craig A. Hurst (Age 32) - President and Director. From 1987 to 1988 Mr. Hurst
was a pro-trader on the V.S.E. with C. M. Oliver & Co. From 1988 to 1989 he
acted as a licensed investment advisor with First Vancouver Securities, and from
1989 to present has been an independent venture capital executive consultant
specializing in drafting and structuring of new corporations, merger and
acquisition consulting, and development of public relations programs for both
public and private companies such as Accord SEG, Dynamic Associates, Inc.
(DYAS/OTC), PLC Systems, Inc. (PLC/AMEX), Hygeia Pharmaceutical (NVO/TSE),
Unilens Optical Corp. (UOCCF/OTC), and Clearly Canadian Beverage Co.(CLCDF/OTC).
Noel Frenzel (Age 33) - Secretary/Treasurer and Director. Mr. Frenzel has
extensive experience in management of industrial equipment, marketing of
services, and administrative issues such as accounting and bookkeeping. From
1991 to present he was a principal with Industrial Equipment Locators in San
Fernando,CA. From 1892 to 1990 Mr. Frenzel was an owner/operator of City &
Highway Towing of Van Nuys, CA where the company recovered large-scale vehicles
and equipment. Mr. Frenzel as President of JMC will be managing the activities
of the recovery of diamonds with the contracted mining consultants in Brazil.
Item 7. Financial Statements and Exhibits
Exhibits
2.1 Agreement with Juina Mining Company, Inc.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CETACEAN INDUSTRIES, INC.
s/Craig Hurst
DATE: August 20, 1997 ---------------------------------
CRAIG HURST
PRESIDENT AND DIRECTOR
(4)
<PAGE>
EXHIBIT 2.1
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement ("Agreement") is made and entered into
this 12th day of August, 1997 by and among Cetacean Industries, Inc., a Nevada
corporation having its principal place of business at 3098 S. Highland Drive,
Salt Lake City, UT 84106, (hereinafter "Cetacean") and each of the stockholders
listed on page 8 hereof (hereinafter jointly and severally, "Sellers") of Juina
Mining Company, Inc., a Nevada corporation having its principal place of
business at 611 Wilshire Blvd, #311, Los Angeles, CA 90017, (hereinafter "JMC").
RECITALS
A. Sellers own or have rights to all of the capital stock, and interests
therein, of JMC, and
B. Cetacean wishes to buy, and Sellers wish to sell, subject to the provisions
of this Agreement, all right, title and interest in such capital stock.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements contained herein, the parties agree as follows:
1. Purchase and Sale and License
1.01. Purchase and Sale of JMC Shares. Cetacean agrees to acquire from
Sellers and Sellers agree to transfer, assign, convey and deliver to Cetacean at
the Closing, all right, title and interest in and to an aggregate of One Million
(1,000,000) shares of capital stock of JMC (hereinafter the "JMC Shares") in
exchange for an aggregate of Four Million (4,000,000) shares of common stock of
Cetacean (hereinafter the "Cetacean Shares"). Each Seller shall receive a number
of Cetacean Shares equal to 4 times the number of JMC Shares delivered by such
Seller.
2. Closing
Unless extended by Cetacean, the Closing of the transactions
contemplated hereby shall be held on August 20, 1997, at 10:00 a.m. at the law
offices of O. Robert Meredith, 124 South 600 East, Salt Lake City, Utah, or at
such other place or on such other date as shall mutually agreed to in writing by
the parties. The date on which the Closing occurs is herein referred to
variously as the "Closing Date" and the "Closing." At the Closing:
2.01. Sellers. Sellers shall deliver or cause to be delivered to
Cetacean:
(5)
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(a) certificates representing the JMC Shares duly endorsed for transfer
and conveyance to Cetacean,
(b) a corporate resolution of the Board of Directors and stockholders
of JMC approving the transactions contemplated by this Agreement,
(c) a list of all accounts in which the funds or other assets of JMC
are deposited, and
(d) the corporate records, including the charter documents, minutes of
meetings and actions of the board of directors and minutes of meetings and
actions of the stockholders, the corporate seal and all books of accounts of
JMC, and all records, papers, documents, and evidence of conveyance, leasehold
or interest in and to that property known as the Juina-Aripuana Diamond
Property 1000, DNPM #866.787/85 in the State of Mato Grosso, Brazil.
2.02. Cetacean. Cetacean shall deliver or cause to be delivered to the
respective Sellers:
(a) stock certificate(s) in the name of each Seller representing the
number of Cetacean shares described in Section 1.01,
(b) a corporate resolution of the Board of Directors and the
Stockholders of Cetacean approving the transactions contemplated by this
Agreement,
(c) the resignation of each Officer and Director of Cetacean,
(d) a list of all accounts in which funds or other assets of Cetacean
are deposited, and
(e) the corporate records including the charter documents, minutes
of meetings and actions of the Board of Directors and minutes of meetings and
actions of the Stockholders, the corporate seal and all books and accounts of
Cetacean.
3. Representations and Warranties of JMC and Sellers
Except as set forth in the JMC Disclosure Schedule delivered to
Cetacean on the date hereof, and signed by the President and Secretary of JMC
(the "JMC Disclosure Schedule"), the sections of which are numbered to
correspond to the subsection numbers of this Agreement, JMC and each of the
Sellers hereby represents and warrants to Cetacean as follows:
3.01. Organization, Qualification.
(a) JMC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada. JMC has all requisite corporate
power and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
(b) JMC has delivered to Cetacean complete and accurate copies of its
Articles of Incorporation and Bylaws, each as amended, minutes of all its
directors' and shareholder meetings, and a shareholder list correctly setting
forth the record ownership as of the date of this Agreement of all outstanding
shares.
3.02. Capitalization. As of the Closing Date, JMC shall have authorized
capital stock of TwentyFive Million (25,000,000) shares of Common Stock, of
which One Million (1,000,000) shares will be issued and outstanding as of such
date. All such outstanding shares of JMC capital stock have been duly
authorized, validly issued, fully paid and nonassessable and are not be subject
to preemptive rights created by statute, the Articles of Incorporation or Bylaws
of JMC or any agreement to which JMC is a party or by which it is bound.
3.03. Subsidiaries. JMC does not have and has never had any
subsidiaries and does not directly or indirectly own any equity interest in, or
any interest convertible into or exchangeable for any equity or similar interest
in, any corporation, partnership, joint venture or other business association or
entity.
3.04. Authority Relative to this Agreement. JMC has full corporate
power to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and thereby have
(6)
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been duly and validly authorized by the Board of Directors.
3.05. Financial Statements of JMC. JMC, being a recently organized
entity, has no financial statements.
3.06. Undisclosed Liabilities. JMC does not have any material
liabilities, whether absolute, accrued, contingent, or otherwise, and whether
due or to become due.
3.07. Properties and Inventories. JMC has good and marketable title to,
valid leasehold interests in or other valid right to use all of the material
assets used in its operations or necessary for the conduct of its business,
subject to no security interests, licenses, encumbrances, restrictions or
adverse claims, except as disclosed in schedule 3.07 attached hereto.
3.08. Compliance with Laws. JMC has substantially complied with all
laws, regulations, or orders of any governmental agency or entity applicable in
any material respect to the conduct of its business.
3.09. Investment Representations. Sellers understand and acknowledge
that the Cetacean Shares will not be registered under the Securities Act nor
qualified under the securities laws of any state or province, by virtue of
exemptions thereto. Each of the Sellers (either alone or in conjunction with his
or her professional advisers) has such experience and knowledge in investment,
financial and business matters in investments similar to the stock of the
Cetacean that they are capable of protecting their own interest in connection
therewith and qualifying for such exemptions. Further, each Seller is acquiring
the Cetacean Shares for investment purposes only for Seller's own account, and
not on behalf of any other person nor with a view to, or for resale in
connection with any distribution thereof. Sellers understand that the
certificates representing the Cetacean Shares will be stamped with a legend
substantially in the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR
AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE ISSUER THAT
SUCH REGISTRATION IS NOT REQUIRED.
3.10. Value of Cetacean Shares. Each Seller has received and reviewed
to such Seller's satisfaction such documents and corporate and financial records
of Cetacean, and has had answered all questions with regard thereto that such
Seller deemed necessary or appropriate to evaluate the business, operations and
assets of Cetacean and the value of its common stock. Sellers are relying solely
on their own evaluation and analysis in determining the value of the Cetacean
Shares and not on any representation of value or worth made by Cetacean.
3.11. Tax Consequences. Although the exchange of shares of JMC
contemplated by this Agreement is intended to be a "tax free reorganization"
pursuant to Section 368(a)(1)(C) of the Internal Revenue Code of 1986, as
amended, and in reliance in part on Revenue Ruling 67-274, Seller understands
that no assurance is given by Cetacean that such transaction shall be deemed by
the Internal Revenue Service to be a transaction upon which no gain or loss is
recognized. Each Seller assumes the obligation for the payment of taxes, if any,
related to any gain or loss to such Seller as a result of the transactions
contemplated by this Agreement.
4. Representations and Warranties of Cetacean
Cetacean hereby represents and warrants to the Sellers as follows:
4.01. Capitalization. The authorized capital stock of Cetacean
consists of One Hundred Million (100,000,000) shares of common stock, of which
One Million (1,000,000) are issued and outstanding, all of
(7)
<PAGE>
which outstanding shares are duly authorized, validly issued, fully paid and
nonassessable. There is no commitment, plan or arrangement to issue and no
outstanding options, warrants or other rights calling for the issuance of any
share of capital stock of Cetacean or any security or other instrument
convertible into, exercisable for or exchangeable for capital stock of Cetacean.
There is outstanding no security or other instrument convertible into or
exchangeable for capital stock of Cetacean.
4.02. Issuance and Delivery of Cetacean Shares. The issuance and
delivery of the Cetacean Shares has been duly authorized, and such shares, when
issued and delivered in accordance with the terms of this Agreement, shall be
duly authorized, validly issued, fully paid and nonassessable.
4.03. Organization. Cetacean (a) is a corporation (i) duly organized,
validly existing and in good standing under the laws of the State of Nevada, and
(b) has the corporate power and authority to own its properties and to carry on
its business as now being conducted.
4.04. Authority, Binding Agreement. This Agreement has been approved by
the Board of Directors of Cetacean. No consents, authorizations or approvals,
whether of a governmental agency or instrumentality or otherwise, are necessary
in order to enable Cetacean to enter into and perform this Agreement. This
Agreement constitute legal, valid and binding obligations of Cetacean and is
enforceable against Cetacean in accordance with its terms.
4.05. Financial Condition. The business, assets, liabilities and
financial condition of Cetacean are, in all material respects, as set forth in
the financial statements and other representations attached hereto as Schedule
4.05, which financial statements (i) have been prepared in conformity with
generally accepted accounting principles, consistently applied, and (ii) do not
fail to state any material fact necessary to make the information therein not
misleading.
4.06. Litigation. There is no suit, action or other legal or
administrative proceeding pending or threatened against Cetacean, and to its
knowledge, no circumstances exist or have occurred which may lead to any suit,
action, proceeding or investigation which could materially and adversely affect
its business, assets or financial condition. Cetacean has received no notice
from any federal, state or local governmental agency asserting any violation by
Cetacean of any law, ordinance or regulation; except as disclosed in Cetacean's
10K filings.
4.07. Subsidiaries. Cetacean does not have and has never had any
subsidiaries and does not directly or indirectly own any equity interest in or
any interest convertible into or exchangeable for any equity or similar interest
in any corporation, partnership, joint venture or other business association or
entity.
4.08. Consents and Approval; No Violation. Except as may be required by
the Securities Act of 1933, as amended, (the "Securities Act") state securities
laws and applicable corporate law, there is no requirement applicable to
Cetacean to make any filing with or to obtain any permanent authorization,
consent or approval of any governmental or regulatory authority as a condition
to the lawful consummation by Cetacean on the transactions contemplated by this
Agreement.
4.09. Undisclosed Liabilities. Cetacean does not have any material
liabilities, whether absolute, accrued, contingent or otherwise and whether due
or to become due except for those liabilities which (1) are accrued and fully
reserved against in the balance sheet of Cetacean or (2) are of a normally
recurring nature and were incurred after March 31, 1997, in the ordinary course
of business consistent with past practice. Subsequent to March 31, 1997,
Cetacean does not have any liabilities of a type required to be disclosed or
reflected in financial statements and which either (a) are not in the ordinary
course of a business transaction or (b) exceed $5,000 with respect to any single
transaction or single series of related transactions.
4.10. Absence of Changes. Since March 31, 1997, there have not been
any material adverse changes in the business, assets, liabilities, financial
condition, results of operation or prospects of Cetacean taken as a whole.
(8)
<PAGE>
4.11. Purchase, Sale and Other Agreements. Cetacean is not a party to
any contract or agreement, oral or written, which may materially effect its
financial statements.
4.12. Compliance With Laws. Cetacean has substantially complied with
all laws, regulations, judgements, decrees or orders of any court or
governmental agency or entity applicable in any material respects to the conduct
of its business.
4.13. Taxes. All United States, foreign, state and local tax returns
and reports (collectively the "Returns") required to be filed to date with
respect to the operations of Cetacean have been accurately prepared in all
material respects and duly filed or an extension therefrom has been duly
obtained.
4.14. Review of Information. Cetacean has such knowledge and experience
in investment, financial and business matters that is capable of protecting its
own interests. Cetacean has been provided complete access to all books and
records of JMC and is entering into this transaction based solely upon its
business knowledge and experience and written information provided to Cetacean
by JMC. Cetacean is not relying upon any oral representations of any officer,
director, agent or employee of JMC in entering into this transaction.
5. Conditions to the Closing
The obligations of the parties hereunder are subject to the
satisfaction at or by the Closing of each of the conditions set forth below. Any
of such conditions may be waived by the other party but only in writing.
5.01. Compliance with Terms. On the Closing Date, all the terms,
conditions and covenants of this Agreement to be complied with and performed by
the respective parties shall have been complied with and performed in all
material respects.
5.02. No Material Change in JMC. There shall be no material change
in the business, assets, liabilities or financial condition of JMC from that set
forth in its financial statement.
5.03. No Material Change in Cetacean. There shall be no material
change in the business, assets, liabilities or financial condition of Cetacean
from that set forth in its financial statements.
6. Miscellaneous
6.01. Other Documents. Sellers shall, at any time after the Closing
upon the request of Cetacean, execute and deliver to Cetacean such documents or
instruments of conveyance, license or assignment or take such other action as is
reasonably necessary to complete the transfer of the JMC Shares or other
transactions contemplated by this Agreement.
6.02. Costs. Except as otherwise specifically provided herein, Cetacean
shall pay the Closing costs and transfer cost applicable to this Agreement and
the transfer of Cetacean Shares hereunder. Each party hereto shall bear the
costs of their respective counsel and all other legal fees and costs related
thereto. Both Cetacean and Sellers each hold the other harmless from any
obligation for the payment of any finders fees or commissions in connection with
the transactions contemplated by this Agreement as a result of any action of the
indemnifying party.
6.03. Invalidity, Modification and Waiver. If any provision of this
Agreement shall be held to be invalid or void, the remaining provisions shall
nevertheless remain in effect. No provision of this Agreement may be modified
and the performance or observance thereof may not be waived except by written
agreement of the parties affected thereby. No waiver of any violation or
nonperformance of any provision of this Agreement shall be deemed to be a waiver
of any subsequent violation or nonperformance of the same or any other provision
of this Agreement.
(9)
<PAGE>
6.04. Disputes, Choice of Law. This Agreement, the performance of the
parties hereunder and any disputes related hereto shall be governed by the laws
of the state of Nevada and subject to the exclusive jurisdiction of the courts
therein. If either party shall initiate a legal proceeding to enforce its rights
hereunder, the prevailing party in such legal proceedings shall be entitled to
recover from the other party all costs, expenses and reasonable attorney's fees
incurred in connection with such proceedings.
6.05. Abandonment. If this Agreement shall fail to Close as provided
for in Section 2 as a result of a failure of any of the conditions precedent set
forth in Section 5, all further obligations of the parties hereto under this
Agreement shall terminate without further liability, and each party shall bear
its own costs incident to the negotiation, preparation and anticipated Closing
of this Agreement. In such event, each party shall return any data, material or
assets of the other party received by it in contemplation of the Closing.
6.06. Entire Agreement. This Agreement is and represents the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes any prior or contemporaneous discussions or agreements related
thereto.
6.07. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be originals and enforceable, and together
shall constitute a single agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized representative as of the date first
written above.
Cetacean Industries, Inc. Juina Mining Company, Inc.
s\Krista Nielson s\Noel M. Frenzel
- ------------------------- ---------------------------
President President
SELLERS:
---------------------------
Roche Holdings (Espana S.A.)
Director
(10)
