SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Amendment No. 5
American Resources of Delaware, Inc.
- -----------------------------------------------------------------
(Name of Issuer)
Common Stock ($.00001 Par Value)
- -----------------------------------------------------------------
(Title of Class of Securities)
02926 U 30 8
- -----------------------------------------------------------------
(CUSIP No.)
Leonard K. Nave
Rick G. Avare
160 Morgan Street
Versailles, KY 40383
(606) 873-5455
- -----------------------------------------------------------------
Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications
February 20, 1998
- -----------------------------------------------------------------
(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
Statement and is filing this Statement because of Rule 13d-1
(b)(3) or (4), check the following box: ( )
Check the following box if a fee is being paid with this
Statement: ( )
Page 1 of 10 Pages
<PAGE>
CUSIP NO. 13D
02926 U 30 8
- -----------------------------------------------------------------
1. NAME OF REPORTING PERSON
Leonard K. Nave, Trustee
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- -----------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)
--------
(b) X
--------
- -----------------------------------------------------------------
3. SEC USE ONLY
- -----------------------------------------------------------------
4. SOURCE OF FUNDS
00
- -----------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2 (D) OR 2 (E)
----------
- -----------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- -----------------------------------------------------------------
Number of 7. SOLE VOTING POWER
Shares None
------------------------------
Beneficially 8. SHARED VOTING POWER
Owned By 643,623
------------------------------
Each 9. SOLE DISPOSITIVE POWER
Reporting None
------------------------------
Person 10. SHARED DISPOSITIVE POWER
643,623
- -----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Leonard K. Nave, Trustee, beneficially owns 643,623 shares
of common stock of American Resources of Delaware, Inc.
- -----------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
SHARES
---------------
- -----------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.3%
- -----------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- -----------------------------------------------------------------
Page 2 of 10 Pages
<PAGE>
CUSIP NO. 13D
02926 U 30 8
- -----------------------------------------------------------------
1. NAME OF REPORTING PERSON
Southern Gas Holding Company, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
61-1200618
- -----------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)
--------
(b) X
--------
- -----------------------------------------------------------------
3. SEC USE ONLY
- -----------------------------------------------------------------
4. SOURCE OF FUNDS
00
- -----------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2 (D) OR 2 (E)
---------------
- -----------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Kentucky
- -----------------------------------------------------------------
Number of 7. SOLE VOTING POWER
Shares None
------------------------------
Beneficially 8. SHARED VOTING POWER
Owned By 643,623
------------------------------
Each 9. SOLE DISPOSITIVE POWER
Reporting None
------------------------------
Person 10. SHARED DISPOSITIVE POWER
643,623
- -----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Southern Gas Holding Co. beneficially owns 643,623 shares of
common stock of American Resources of Delaware, Inc.
- -----------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
SHARES
---------------
- -----------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.3%
- -----------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
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Page 3 of 10 Pages
<PAGE>
CUSIP NO. 13D
02926 U 30 8
- -----------------------------------------------------------------
1. NAME OF REPORTING PERSON
Leonard K. Nave
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
###-##-####
- -----------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)
--------
(b) X
--------
- -----------------------------------------------------------------
3. SEC USE ONLY
- -----------------------------------------------------------------
4. SOURCE OF FUNDS
BK, PF, 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
USA
- -----------------------------------------------------------------
Number of 7. SOLE VOTING POWER
Shares 304,839
------------------------------
Beneficially 8. SHARED VOTING POWER
Owned By 643,623
------------------------------
Each 9. SOLE DISPOSITIVE POWER
Reporting 304,839
------------------------------
Person 10. SHARED DISPOSITIVE POWER
643,623
- -----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Leonard K. Nave beneficially owns 948,462 shares of common
stock of American Resources of Delaware, Inc.
- -----------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
SHARES
---------------
- -----------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.1%
- -----------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- -----------------------------------------------------------------
Page 4 of 10 Pages
<PAGE>
CUSIP NO. 13D
02926 U 30 8
- -----------------------------------------------------------------
1. NAME OF REPORTING PERSON
Rick G. Avare
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
###-##-####
- -----------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)
--------
(b) X
--------
- -----------------------------------------------------------------
3. SEC USE ONLY
- -----------------------------------------------------------------
4. SOURCE OF FUNDS
BK, PF, OO, SC
- -----------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2 (D) OR 2 (E)
---------------
- -----------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- -----------------------------------------------------------------
Number of 7. SOLE VOTING POWER
Shares 1,263,028
------------------------------
Beneficially 8. SHARED VOTING POWER
Owned By 603,222
------------------------------
Each 9. SOLE DISPOSITIVE POWER
Reporting 1,263,028
------------------------------
Person 10. SHARED DISPOSITIVE POWER
603,222
- -----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Rick G. Avare beneficially owns 1,866,250 shares of common
stock of American Resources of Delaware, Inc.
- -----------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
SHARES
---------------
- -----------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.2%
- -----------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- -----------------------------------------------------------------
Page 5 of 10 Pages
<PAGE>
CUSIP NO. 13D
02926 U 30 8
- -----------------------------------------------------------------
1. NAME OF REPORTING PERSON
Prima Capital LLC
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
61-1278562
- -----------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)
--------
(b) X
--------
- -----------------------------------------------------------------
3. SEC USE ONLY
- -----------------------------------------------------------------
4. SOURCE OF FUNDS
PF, 00
- -----------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2 (D) OR 2 (E)
---------------
- -----------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- -----------------------------------------------------------------
Number of 7. SOLE VOTING POWER
Shares 602,088
------------------------------
Beneficially 8. SHARED VOTING POWER
Owned By NONE
------------------------------
Each 9. SOLE DISPOSITIVE POWER
Reporting 602,088
------------------------------
Person 10. SHARED DISPOSITIVE POWER
None
- -----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Prima Capital LLC beneficially owns 602,088 shares of common
stock of American Resources of Delaware, Inc.
- -----------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
SHARES
---------------
- -----------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.9%
- -----------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
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Page 6 of 10 Pages
<PAGE>
ITEM 1. Security and Issuer.
-------------------
Not Amended.
ITEM 2. Identity and Background.
-----------------------
Not Amended.
ITEM 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
Not Amended.
ITEM 4. Purpose of Transaction.
----------------------
Not Amended.
ITEM 5. Interest in Securities of the Issuer.
------------------------------------
Item 5 is amended to read as follows:
(a) At February 20, 1998, 10,207,231 shares of Common Stock
were issued and outstanding. The reporting persons identified in
ITEM 2 above, beneficially own the following shares of ARI Common
Stock:
<TABLE>
Reporting Person No. Shares Percent
- ---------------- ---------- -------
<S> <C> <C>
Southern Gas Holding 643,623 6.3%
Leonard K. Nave, Trustee 643,623 6.3%
Leonard K. Nave 948,462 9.1%
Rick G. Avare 1,866,250 17.2%
Prima Capital LLC 602,088 5.9%
</TABLE>
(b) The reporting persons have the following sole or shared
power to vote shares of ARI Common Stock ("Voting Power") and the
sole or shared power to dispose of shares of ARI Common Stock
("Investment Power"):
Southern Gas Holding:
Sole Voting Power None
Shared Voting Power 643,623 (1)
Sole Investment Power None
Shared Investment Power 643,623 (1)
Page 7 of 10 Pages
<PAGE>
Leonard K. Nave, Trustee:
Sole Voting Power None
Shared Voting Power 643,623 (1)
Sole Investment Power None
Shared Investment Power 643,623 (1)
Leonard K. Nave:
Sole Voting Power 304,839 (2)
Shared Voting Power 643,623 (1)
Sole Investment Power 304,839 (2)
Shared Investment Power 643,623 (1)
Rick G. Avare:
Sole Voting Power 1,263,028 (3)
Shared Voting Power 603,222 (4)
Sole Investment Power 1,263,028 (3)
Shared Investment Power 603,222 (4)
Prima Capital LLC:
Sole Voting Power None
Shared Voting Power 602,088 (5)
Sole Investment Power None
Shared Investment Power 602,088 (5)
Footnotes:
(1) Shares owned of record by Southern Gas Holding Company,
Inc.
(2) Shares and options to purchase shares owned of record
by Leonard K. Nave, individually.
(3) Shares, options and conversion rights owned of record
by Rick G. Avare.
(4) 602,088 shares owned of record by Prima Capital LLC,
and 1,134 shares owned of record by JJR Investments.
(5) Shares owned of record by Prima Capital LLC.
Leonard K. Nave disclaims the beneficial ownership of 60% of
the shares of Common Stock owned of record by Southern Gas
Holding Company, Inc. Rick G. Avare disclaims the beneficial
ownership of 80% of the shares of Common Stock owned of record by
Prima Capital LLC. The filing of this Schedule 13D shall not be
construed as an admission by
Page 8 of 10 Pages
<PAGE>
either Leonard K. Nave or Rick G. Avare that such persons, for
the purposes of Section 13(d) or 13(g) of the Securities Exchange
Act of 1934, as amended, is the beneficial owner of such shares
of Common Stock.
ITEM 6. Contracts, Arrangements, Understandings or
------------------------------------------
Relationships With Respect to Securities of the Issuer.
- ------------------------------------------------------
As previously reported herein, Rick G. Avare ("Mr. Avare")
owned, beneficially, 521,652 shares of Common Stock by virtue of
his ownership of 525 shares (52.5%) of the common stock of
Southern Gas Holding Company, Inc. On February 17, 1998,
Southern Gas Holding Company, Inc. and Mr. Avare entered into a
Share Purchase Agreement under which Mr. Avare agreed to sell and
Southern Gas Holding Company, Inc. agreed to buy Mr. Avare's 525
shares of Southern Gas Holding Company, Inc. The consideration
for the purchase consisted of 350,000 shares of Common Stock, the
cancellation of approximately $131,000 of indebtedness owed to
Southern Gas Holding Company, Inc. by Mr. Avare and the
assumption by Mr. Avare of $250,000 of indebtedness owed by
Southern Gas Holding Company, Inc. to third parties. The
transaction closed on February 20, 1998. A copy of the Share
Purchase Agreement is attached hereto as Exhibit 5-1 and
incorporated herein.
ITEM 7. Material to be Filed as Exhibits.
--------------------------------
The following exhibit is attached hereto.
Exhibit 5-1 Share Purchase Agreement entered into among
Rick G. Avare and Southern Gas Holding
Company, Inc.
Page 9 of 10 Pages
<PAGE>
SIGNATURE
---------
After reasonable inquiry and to the best of our knowledge
and belief, we certify that the information set forth in this
statement is true, complete and correct.
Date: March 9, 1998
/s/ Leonard K. Nave
-----------------------------------
Leonard K. Nave, Individually
/s/ Leonard K. Nave
-----------------------------------
Leonard K. Nave, Trustee
/s/ Rick G. Avare
-----------------------------------
Rick G. Avare, Individually
Southern Gas Holding Company, Inc.
By: /s/ Leonard K. Nave
--------------------------------
Leonard K. Nave
President
Prima Capital LLC
By: /s/ Rick G. Avare
--------------------------------
Rick G. Avare
Administrative Member
Page 10 of 10 Pages
<PAGE>
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (the "agreement") is made and
entered into this 17th day of February, 1998, by and among Rick
G. Avare, (the "Shareholder"), and Southern Gas Holding Company,
Inc., a Kentucky corporation (the "Purchaser").
WITNESSETH:
WHEREAS, Shareholder owns and desires to sell, and Purchaser
desires to purchase, five hundred twenty-five (525) shares of
capital stock of Southern (the "Shares"), in accordance with and
subject to the terms and provisions of this agreement.
NOW, THEREFORE, in consideration of the mutual agreements
contained in this agreement, and intending to be legally bound,
the Shareholder and Purchaser agree as follows:
1 PURCHASE AND SALE OF SHARES.
- - ---------------------------
At the Closing (as defined in section (3) of this
agreement), Shareholder shall sell to Purchaser, and Purchaser
shall purchase from Shareholder, the Shares.
2 PURCHASE PRICE.
- - --------------
The aggregate purchase price for the Shares shall consist
of:
(i) Three Hundred and Fifty Thousand Shares {350,000} of
American Resources of Delaware, Inc.'s common stock;
(ii) The assumption of Sixty Thousand Dollars ($60,000.00)
of the Purchaser's indebtedness at Farmers Bank
evidenced by the Promissory Note attached hereto as
Exhibit "A" (the "Note") and will make said payment on
the Note at such time the balance of the principal and
interest on the Note has been reduced to Sixty Thousand
Dollars ($60,000.00);
(iii) Payment to Shareholder of fifty percent (50%) of the
proceeds received from the Purchaser from the sale of
Phillip Perry's lot in Charleston, South Carolina
(iv) The Purchaser's release of any interest in or monies
owed to the Purchaser arising out of the acquisition of
the condominium located in Bal Harbor, Florida;
(v) Assumption of the Jamal Mashburn receivable to the
Purchaser; and
(vi) The release by Purchaser of any and all receivables or
other monies due and owing by the Shareholder to the
Purchaser.
Collectively the above is referred to as the Purchase Price
or ARI stock where appropriate.
3 CLOSING.
- - -------
The closing of the transactions contemplated by this
agreement (the "Closing") shall take place at the offices of the
Purchaser, within Five (5) days after all conditions of this
Agreement have been satisfied or waived as provided therein, or
at such other time, date, or place upon which Purchaser and the
Shareholder shall agree in writing (the "Closing Date"), but in
no event shall the closing date be later than February 20, 1998.
4 CLOSING ITEMS.
- - -------------
At the Closing the following deliveries shall be made:
(i) Shareholder shall deliver to Purchaser the
certificates representing the Shares, duly
endorsed in blank or with stock powers attached
thereto duly signed in blank or otherwise in
proper form for transfer, free of any notation of
any adverse claims, conveying to Purchaser good
and marketable title to the Shares, free and clear
of all liens, claims, charges, pledges, rights,
and encumbrances of any nature whatsoever; and
(ii) Purchaser shall deliver to the Shareholder the
certificates representing the Purchase Price, duly
endorsed in blank or with stock powers attached
thereto duly signed in blank or otherwise in
proper form for transfer, free of any notation of
any adverse claims, conveying to Purchaser good
and marketable title to the ARI Stock, free and
clear of all liens, claims, charges, pledges,
rights, and encumbrances of any nature whatsoever.
5 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
- - -------------------------------------------------
The Shareholder represents and warrants to Purchaser, and
acknowledges that Purchaser relies on such representations and
warranties in entering into and proceeding under this agreement,
that:
(a) The Shareholder is the true and lawful owner of the
Shares and, as of the date of this agreement and at the
closing, has and will have full right, power, and
authority to sell, transfer, and deliver the Shares to
Purchaser. Except as set forth herein, the shareholder
has no knowledge of any adverse claims
2
<PAGE>
affecting its Shares and there are no notations of any
adverse claims marked on the certificates for the
Shares. At the closing, Purchaser will acquire the
Shares free and clear of any security interests,
mortgage, adverse claims, liens, or encumbrances of any
nature or description whatsoever.
(b) No provision of any contract, trust agreement,
mortgage, indenture, or other agreement or instrument
to which the Shareholder is a party or is bound or to
which any shareholder is subject requires the consent
or authorization of any other person or entity as a
condition precedent to the consummation of the
transactions contemplated by this agreement.
(c) No representation or warranty made by the Shareholder
in this agreement and no statement made by it in any
certificate, document, exhibit, or schedule furnished
or to be furnished in connection with the transactions
herein contemplated contains or will contain any untrue
statement of a material fact or omits or will omit to
state any material fact necessary to make such
representation or warranty or any such statement not
misleading to Purchaser.
6 REPRESENTATIONS AND WARRANTIES OF PURCHASER
- - -------------------------------------------
Purchaser represents and warrants to the Shareholder, and
acknowledges that the Shareholder relies on such representations
and warranties in entering into and proceeding under this
agreement, that:
(a) This agreement has been duly authorized by all
necessary corporate action of Purchaser and has been
duly executed and delivered by Purchaser. The execution
and delivery by Purchaser of this agreement and the
consummation by Purchaser of the transactions
contemplated hereby will not conflict with or
constitute a violation of any provision of the articles
of incorporation or bylaws of Purchaser or conflict
with or constitute a violation, breach, or default
under any material contract, trust agreement, mortgage
indenture, or other agreement or instrument to which
Purchaser is a party or by which Purchaser is bound or
to which Purchaser or any of its properties is subject.
(b) No provision of the articles of incorporation or bylaws
of Purchaser or of any material contract, trust
agreement, mortgage, indenture, or other agreement or
instrument to which Purchaser is a party or by which it
is bound or to which Purchaser or any of its properties
is subject requires the consent or authorization of any
other person or entity as a condition precedent to the
consummation of the transactions contemplated hereby.
(c) No person or entity is entitled to any brokerage or
finder's fee or commission or other like payment in
connection with the negotiations relating to or the
transactions contemplated by this agreement, based on
any agreement,
3
<PAGE>
arrangement, or understanding with Purchaser, or any of
Purchaser's respective officers, directors, agents, or
employees.
(d) Purchaser is acquiring the Shares for investment and
not with a view to the sale or other distribution
thereof. Purchaser agrees that it will not at any time
sell, exchange, transfer, or otherwise dispose of the
Shares under circumstances which would constitute a
violation of the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the
Securities and Exchange Commission thereunder or any
state statute, rule, or regulation relating to the sale
of securities.
(e) The Purchaser is the true and lawful owner of the ARI
Stock and, as of the date of this agreement and at the
closing, has and will have full right, power, and
authority to sell, transfer, and deliver the ARI Stock
to Purchaser. The shareholder has no knowledge of any
adverse claims affecting the ARI Stock and there are no
notations of any adverse claims marked on the
certificates for the ARI Stock. At the closing,
Purchaser will acquire the ARI Stock free and clear of
any security interests, mortgage, adverse claims,
liens, or encumbrances of any nature or description
whatsoever.
7. THREATENED LITIGATION.
- -- ----------------------
The Purchaser acknowledges its awareness and knowledge that
certain creditors of Leonard K. Nave ("Nave"), a shareholder of
the Purchaser, has been threatened with litigation to rescind the
transaction whereby the Shareholder received a portion of the
Shares from Nave. Being fully aware of this threatened
litigation, the Purchaser agrees that it will take no action
against Shareholder as a result of any action taken by Nave or
anyone on his behalf to rescind the transfer of certain portion
of the Shares conveyed to Purchaser hereunder. Furthermore in
the event of such successful action, the definition of Shares
shall be amended to reflect the number of Shares conveyed after
the rescission, and the Purchase Price shall not be amended nor
shall the Purchaser have any right to assert or demand any refund
of the Purchase Price.
8 CONDITIONS TO PURCHASER'S OBLIGATION
- - ------------------------------------
The obligation of Purchaser to consummate on the closing
date the transactions contemplated by this agreement will be
subject to the satisfaction of each of the following conditions
by the time required but no later than on or prior to the closing
date, unless expressly waived by Purchaser:
(a) The representations and warranties of the Shareholder
contained in section 5 of this agreement shall be true
and correct in all material respects on and as of the
closing date as if made on and as of the closing date.
4
<PAGE>
(b) Except as set forth in Section 7, no action or
proceeding shall have been instituted or threatened
against the Shareholder, before any court or
governmental department, agency, or commission to
restrain or prohibit, or to obtain substantial damages
in respect of, this agreement or the consummation of
the transactions contemplated hereby; and no party to
this agreement shall have received written notice from
any court or governmental department, agency, or
commission of its intention to institute any action or
proceeding to restrain or enjoin or commence any
investigation (other than a routine letter of inquiry)
into the consummation of this agreement and the
transactions contemplated hereby or to nullify or
render ineffective this agreement or such transactions
if consummated, which in the opinion of Purchaser would
make it inadvisable to consummate such transaction.
(c) The Shareholder shall have tendered certificates
representing all of the Shares.
9 CONDITIONS TO THE SHAREHOLDER OBLIGATIONS
- - -----------------------------------------
The obligation of the Shareholder to consummate on the
closing date the transactions contemplated by this agreement will
be subject to the satisfaction of each of the following
conditions at the time required but no later than on or prior to
the closing date, unless expressly waived by the Shareholder'
representative:
(a) The representations and warranties of Purchaser
contained in section 6 of this agreement shall be true
and correct in all material respects on and as of the
closing date as if made on and as of the closing date.
(b) No action or proceeding shall have been instituted
against Purchaser which reasonably could have a
material and adverse effect on its businesses; no
action or proceeding shall have been instituted or
threatened against any of the parties to this
agreement, before any court or governmental department,
agency, or commission to restrain or prohibit, or to
obtain substantial damages in respect of, this
agreement or the consummation of the transactions
contemplated hereby; and neither Purchaser nor
Shareholder shall have received written notice from any
court or governmental department, agency, or commission
of its intention to institute any action or proceeding
to restrain or enjoin or commence any investigation
(other than a routine letter of inquiry) into the
consummation of this agreement and the transactions
contemplated hereby or to nullify or render ineffective
this agreement or such transactions if consummated,
which in the opinion of the Shareholder's
representative would make it inadvisable to consummate
such transactions.
5
<PAGE>
10 SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND COVENANTS
- -- ------------------------------------------------------
All representations, warranties, and covenants by any party
to this agreement contained in this agreement or in any
certificate or other instrument delivered by or on behalf of any
party pursuant to this agreement shall be continuous and shall
survive the closing for a three year period expiring on the third
anniversary of the closing date.
11 INDEMNIFICATION
- -- ---------------
After the closing date, Purchaser shall, as to those
representations, warranties, covenants, and agreements which are
herein made or agreed to by the Shareholder in the paragraph or
Agreement, indemnify and hold harmless Shareholder against and in
respect of:
(a) Any damage, deficiency, or costs resulting from any
misrepresentation or breach of warranty or any
nonfulfillment of any covenant or agreement on the part
of the Purchaser under this agreement; and
(b) Any claim, action, suit, proceeding, demand, judgment,
assessment, cost, and expense, including reasonable
counsel fees, incident to any of the foregoing.
(c) Any and all claims, actions, suits or proceeding
(administrative or otherwise) arising out of or
pertaining to any sales tax owed by the Southern Gas
Company to any governmental authority, which is
asserted by Southern Gas Co. of Delaware, Inc. and/or
American Resources of Delaware, Inc. (or their
respective successors) against the Shareholder.
(d) Any and all claims, actions, suits or proceeding
(administrative or otherwise) arising out of or
pertaining to any sales tax owed by the Southern Gas
Company to any governmental authority, which is
asserted by any governmental authority. The parties
hereto agree that the indemnity set forth in Section
11(d), shall be limited to the use of 143,000 shares of
American Resources of Delaware, Inc. stock to satisfy
any claim against the Shareholder, Purchaser and/or
Leonard K. Nave. These shares shall be reserved by the
Purchaser for this purpose and shall not be pledged,
encumbered or conveyed by the Purchaser.
Purchaser shall reimburse Shareholder for any liabilities,
damages, deficiencies, claims, actions, suits, proceedings,
demands, judgments, assessments, costs, and expenses to which
this section 11 relates.
12 RECORDS AND FURTHER ASSURANCES
- -- ------------------------------
From time to time prior to or at the closing, the parties
will execute all such instruments and will take all such actions
in connection with carrying out and effectuating
6
<PAGE>
the intent and purpose hereof and all transactions and things
contemplated by this agreement, including, without limitation,
the execution and delivery of any and all confirmatory and other
instruments in addition to those to be delivered on the closing
date, and any and all actions which may reasonably be necessary
or desirable to complete the transactions contemplated hereby.
13 REMEDIES
- -- --------
Purchaser hereby acknowledges that there may not be an
adequate remedy at law for the breach of this Agreement and, in
addition to any other remedies available to the Shareholder,
injunctive relief may be granted to the Shareholder for such
breach.
14 CONSTRUCTION; GOVERNING LAW
- -- ---------------------------
The table of contents and section headings contained in this
agreement are inserted as a matter of convenience and shall not
affect in any way the construction of the terms of this
agreement. This agreement shall be construed in accordance with
and governed by the laws of Kentucky.
15 ENTIRE AGREEMENT; AMENDMENT AND WAIVER
- -- --------------------------------------
This agreement, including the schedules hereto, constitutes
and contains the entire agreement of the Shareholder, and
Purchaser with respect to the transactions contemplated hereby
and supersedes any prior writing by the parties. The parties may,
by mutual agreement in writing, amend this agreement in any
respect, and any party, as to such party, may in writing (1)
extend the time for the performance of any obligations of any
other party; (2) waive any inaccuracies in representations and
warranties by any other party; (3) waive performance of any
obligations by any other party; and (4) waive the fulfillment of
any condition that is precedent to the performance by such party
of any of its obligations hereunder. No such waiver shall be
deemed to constitute the waiver of any other breach of the same
or of any other term or condition of this agreement. Any such
amendment or waiver by Purchaser must be signed by an officer of
Purchaser and any such amendment or waiver by Shareholder must be
signed by the Shareholder' representative.
16 SEVERABILITY
- -- ------------
If any provision of this agreement or the application
thereof to any person or circumstance shall to any extent be held
in any proceeding to be invalid or unenforceable, the remainder
of this agreement, or the application of such provision to
persons or circumstances other than those to which it was held to
be invalid or unenforceable, shall not be affected thereby, and
shall be valid and enforceable to the fullest extent permitted by
law, but only if and to the extent such enforcement would not
materially and adversely frustrate the parties' essential
objectives as expressed herein.
7
<PAGE>
17 COUNTERPARTS
- -- ------------
This agreement may be executed concurrently in one or more
counterparts, any one of which need not contain the signatures of
more than one party but all of which taken together shall
constitute one and the same agreement.
18 RELEASE
- -- -------
The parties hereby agree to execute a full and complete
release in a form attached hereto as Exhibit "B".
IN WITNESS WHEREOF, the Shareholder and Purchaser have
executed this agreement as of the day and year first written
above.
/S/ Rick G. Avare
-----------------------------------
RICK G. AVARE
SOUTHERN GAS HOLDING COMPANY, INC.
By: /s/ Leonard K. Nave
--------------------------------
Its: President
8
