EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of August 8, 2000, by and among Centre Capital Corp., a Nevada
corporation ("CCCX"), American Absorbents Natural Products, Inc., Inc., a Utah
corporation ("the Company"), and those persons listed in Exhibit A hereto, being
all of the shareholders of Absorbents who own individually at least five percent
(5%) of the outstanding stock of the Company and together control over 50% of
the outstanding stock of the Company (the Stockholders) as of the date of this
Agreement is executed. CCCX and the Company, and the Stockholders are sometimes
referred to collectively herein as the "Parties".
RECITALS:
The Stockholders own a majority of the issued and outstanding shares of the
Company's common stock. CCCX desires to acquire all of the issued and
outstanding common stock of the Company, making the Company a wholly-owned
subsidiary of CCCX, and Stockholders desire to exchange all of their shares of
the Company common stock and for $500,000 cash to be contributed as working
capital to the Company by CCCX and shares of CCCX authorized but unissued Common
Stock, $.001 par value, preferred stock $.001 par value and $3.00 detachable
warrants. It is the intention of the parties hereto that: (i) CCCX shall acquire
all of the issued and outstanding common stock of the Company in exchange solely
for the number of shares of CCCX authorized but unissued Common Stock, Preferred
Stock, and detachable warrants set forth below (the "Exchange"); (ii) the
Exchange shall qualify as a tax-free reorganization under Section 368(a)(1)(b)
of the Internal Revenue Code of 1986, as amended, and related sections
thereunder; and (iii) the Exchange qualify as a transaction in securities are
not exempt from registration or qualification under the Securities act of 1933,
as amended, and under the applicable securities laws of each state or
jurisdiction where the Stockholders reside.
NOW THEREFORE, for the mutual consideration set out herein, the parties hereto
agree as follows:
1. Exchange of Shares
CCCX and the Company agree that on the Closing Date (as hereinafter defined)
that Stockholders will exchange approximately 7,000,000 shares which are a
majority of the issued and outstanding Common Stock of the Company) for
2,000,000 shares of the common stock (the "Shares"),$.001 par value per shares
("Common Stock"), 5,000,000 shares of a Series A $2.00 Callable Cumulative
Convertible Preferred, $.001 par value, with a share for share $3.00 detachable
warrant. The Cumulative dividend shall accumulate at 4% per annum. The Preferred
Stock can not be called or converted until the end of one year from the date of
issuance and distribution of the Stock. The Callable premium shall be 150% or
$3.00 per share. The number of Shares of the Company common stock owned by each
Stockholder and the number of shares of CCCX's Common Stock, Preferred Stock,
and detachable warrant which each Stockholder will receive in the Exchange is
set forth in Exhibit "A", which is attached hereto and made a part hereof. The
common stock, Preferred Stock, and Warrants will participate or receive the
benefit of any stock dividend paid or stock split declared prior to and
subsequent to closing.
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2. Delivery of Shares
On the Closing Date, Stockholders will deliver to CCCX the certificates
representing a majority of the outstanding shares of the Company Common Stock,
duly endorsed (or with duly executed stock powers) so as to make CCCX the sole
owner thereof, free and clear of all claims and encumbrances. Simultaneously, on
the Closing Date, CCCX will deliver the certificates representing the Shares to
the Stockholders. The Exchange shall not be effected unless 52% of the Company
Stockholders execute this Agreement and all shares of the Company outstanding
common stock are delivered to CCCX on the Closing Date, after a vote of all the
Stockholders of the Company. CCCX and the Company will collectively send an
information statement pursuant 14c of the Securities Exchange Act of 1934 that
will inform the Stockholders of their rights and the methods to exchange their
shares of the Company for shares of CCCX.
In the event that any Certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming such
Certificate to be lost, stolen or destroyed and, if required by CCCX, the
posting by such person of a bond in such reasonable amount as CCCX may direct as
indemnity against any claim that may be made against it with respect to such
Certificate, the Exchange Agent will issue in exchange for such lost, stolen or
destroyed Certificate the applicable exchange consideration deliverable in
respect thereof pursuant to this Agreement.
3. Representations and Warranties of Company
The Company, as a material inducement for CCCX to enter into this Agreement and
consummate the transactions contemplated hereby, make the following
representations and warranties to CCCX, which representations and warranties are
true and correct at this date, and will be true and correct in all material
respect on the Closing Date:
3(a). Securities Holders. The Stockholders listed on Exhibit "A" are the owners,
of record and beneficially, of a majority of the issued and outstanding shares
of the Company Common Stock.
3(b) Financial Statements.
(i) The audited financial statements included in ABSORBENTS's Annual
Report on Form 10-KSB for the year ended January 31, 2000 (including the related
notes and schedules) have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods covered thereby, present fairly the
financial condition of The Company and its Subsidiary as of the indicated dates
and the results of operations of The Company and its Subsidiary for the
indicated periods, are correct and complete in all material respects, and are
consistent with the books and records of The Company and its Subsidiary.
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(ii) The unaudited financial statements included in The Company's
Quarterly Report on Form 10-QSB for the quarter ended April 30, 2000 (the "Most
Recent The Company Fiscal Period End"), as of the date thereof, comply in all
material respects with the Securities Exchange Act and the rules and regulations
of the SEC promulgated thereunder, present fairly the results of operations of
The Company and its Subsidiary for the periods covered, and are correct and
complete in all material respects.
3(c) Undisclosed Liabilities. At the Closing Date the Company: (i) will have no
liabilities or obligations of any nature, fixed or contingent, matured or
unmatured, which are not shown or otherwise provided for in the Financial
Statements except for liabilities and obligations arising in the ordinary course
of business, none of which is materially adverse, and (ii) all reserves
established by the Company and set forth in the Financial Statements will be
adequate and there will be no material loss contingencies (as such term is used
in Statement of Financial Account Standard No. 5 of the Financial Accounting
Standards Board) which are not adequately provided for. American Absorbents
Natural Products, Inc. has identified the contingent liability resulting from
the issuance of royalty payments to shareholders based upon mined, milled, and
sold products.
3 (d) Absence of Changes. Since the date of the Financial Statements, Acquired
business has been operated in the ordinary course and there has not been (i) Any
material adverse change in the condition (financial or otherwise), assets,
liabilities, earnings, net worth, business or prospects of Acquired for such
period, in the aggregate, or at any time during such period: (ii) Any damage,
destruction of loss (whether or not covered by insurance) materially adversely
affecting the Company or its businesses; (iii) Any declaration setting aside, or
payment of any dividend or other distribution in respect of any shares of the
Company, or any direct or indirect redemption, purchase or other acquisition of
such stock: (iv) Any issuance or sale by the Company or agreement to sell any of
its securities; or (v) Any statute, rule, regulation or order adopted (including
orders of regulatory authorities with jurisdiction over the Company or its
Business) which materially adversely affects the Company or its business.
3 (e) Litigation, Etc. There are no actions, suits, claims, investigations or
legal or administrative or arbitration proceedings pending or threatened against
the Company, its assets or business, whether at law or in equity, or before or
by any federal, state municipal, local, foreign or other government department,
commission, board, bureau, agency or instrumentality; nor does the Company know
of a threat of such litigation or any basis for any such action, suit, claim,
investigation or proceeding.
3 (f) Compliance, Governmental Authorizations. The Company has complied with all
federal, state, local, or foreign laws, ordinances, regulations and orders
applicable to its business, including without limitation, federal and state
securities laws which if not complied with would materially and adversely affect
the business of the Company. The Company has all federal, state, local and
foreign governmental licenses and permits necessary in the conduct of its
business, and such licenses and permits are in full force and effect, and the
Company knows of no violations of any suit licenses or permits, and no
proceedings are pending or threatened to revoke or limit the use of such license
and permits.
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3 (g) Due Organization, Etc. The Company is a corporation's duly organized,
validly existing and in good standing under the laws of the State of Utah and is
qualified to do business and in good standing in each state where it is required
to be so qualified and such qualification is material to its business. The
Company has the power to own its properties and assets and to carry on its
business as now presently conducted.
3 (h) Tax Matters. The Company has filed all federal, state and local tax or
related return and reports due or required to be filed, which reports accurately
reflect in all material respect the amount of taxes due. The Company has paid
all amounts of taxes or assessments which would be delinquent if not paid as of
the date of this agreement, other than taxes or charges being contested in good
faith or not yet finally determined.
3 (i) Agreements, Etc. Schedule 1 contains a true and complete list and brief
description of all written or oral contracts, agreements, mortgages,
obligations, understandings, arrangements, restrictions and other instruments to
which the Company is party or by which the Company or its assets may be bound.
True and Correct copies of all items set forth on Schedule 1 have been or will
be made available to the Company prior to Closing. No event has occurred, except
as disclosed therein, which (whether with or without notice lapse of time or the
happening or occurrence of any other event) would constitute a default under any
of the agreements set forth in Schedule 1.
3 (j) Title to Property and Related Matters. Robert L. and Judith A. Bitterli
have a mortgage on the Company's real estate and manufacturing facility located
at 12859 Snow Mountain Pine Lane, Hines, OR 97738. Austin-Young, Inc. has a lien
on 2,520,000 shares. The Company has good and marketable title fee and clear of
any liens of encumbrances to all other properties, interest in properties and
assets real personal and mixed, reflected as being owned by it on the Financial
Statements or acquired by it after the date of the Financial Statements, of any
kind or character, there are no liens for current taxes not yet delinquent.
Except for matters, which may arise in the ordinary course of business, the
Company assets are in good operating condition and repair. To the best of
knowledge of the Company, there does not exist any condition, which materially
interferes with the use thereof in the ordinary course of the Company business.
3 (k) Corporate Records. The corporate records, minute books, and other
documents and records of the Company are complete and correct from 1995 through
Closing. CCCX shall have the right to review all corporate records of the
Company prior to the Closing Date.
3 (l) Licenses, Trademarks, Trade Names, Etc. There is no pending or threatened
claim or litigation against the Company contesting the right to use any of the
trademarks, trade names and know how or validity of any of the licenses,
copyrights and patents or asserting the misuse of any thereof, nor has there
ever been any such claim or litigation.
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3 (m) Authorization by the Company. This Agreement constitutes a valid and
binding agreement of the Company, enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, and other similar laws relating to limiting
or affecting the enforcement of creditors, rights generally; and neither the
execution and delivery of this Agreement nor the consummation by the CCCX of the
transaction contemplated hereby, nor compliance with any of the provisions
hereof, will violate any statue, law rule or regulation or any order writ,
injunction or decree of any court or governmental authority or violate or
conflict with other constitute a default under (or give rise to any right of
termination, cancellation or acceleration under) the terms or conditions or
provisions of any note, bond, lease mortgage, obligation agreement,
understanding, arrangement or restriction of any kind to which the Company is a
party or by which the Company or its properties may be bound. No consent or
approval of any governmental authority is required in connection with the
execution and delivery by the Company of this Agreement or the consummation of
the transactions contemplated hereby.
3 (n) Corporate Authorizations. The Company is authorized to enter into this
Agreement and have taken all corporate action necessary to authorize the
execution of this Agreement and consummation of the transactions contemplated
herein. The execution, delivery and performance of this Agreement by the Company
will not be in conflict with or constitute a default under any provisions of
applicable law, the Company Article of Incorporation or By-Laws, or any
agreement or instrument to which the Company is a party or by which its assets
are bound.
3(o) Capitalization. The authorized capitalization of the Company is as set
forth in Schedule 2. Except as set forth in said Schedule 2, there are no
outstanding or presently authorized securities, warrants, preemptive rights,
subscription rights, options or related commitments of any nature to issue any
of the Company securities which are not reflected in the Financial Statement or
in Schedule 2.
3(p) Full Disclosures. The Company has, and at the Closing Date will have,
disclosed to CCCX all events, conditions and facts materially affecting the
business and prospects of the Company; and the Company has not and will not
have, at the Closing Date, withheld disclosure of any events, conditions and
facts which it may have knowledge of, or have reasonable grounds to know, may
materially, adversely affect the business and prospects of the Company.
3 (q) Brokerage Fees. The Company has not incurred, nor will it incur any
liability for brokerage or finder's fee or similar charges in connection with
this Agreement or any of the transactions contemplated hereby.
3(r) Employment Agreements. The Company has entered into employment agreements
("Employment Agreements") with various key employees and contains such terms as
are consistent with the terms of their employment prior to the date hereof. True
and correct copies of the Employment Agreement have been or will be made
available to CCCX prior to the Closing Date.
3(s) Share Ownership. The shares of the Company Common Stock to be exchanged for
the Shares in the Exchange are owned of record and beneficially, by the
respective stockholders of the Company as specified on Exhibit "A", free and
clear of all liens and encumbrances of any kind and nature and have not been
sold, pledged, assigned or otherwise transferred except pursuant to this
Agreement.
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3(t) Authority to Enter into Agreement. The Company, under the aegis of Mr.
Robert L. Bitterli, Chief Executive Officer has the power and authority to enter
into this agreement subject to the advice and consent of the Board of Directors
and by majority vote of the stock holders and can perform its obligations
hereunder.
3(u) Obligation. This Agreement constitutes a valid and legally binding
obligation of each Stockholder, and neither the execution of this Agreement, nor
the consummation of the transactions contemplated hereby, will constitute a
violation of or default under, or conflict with, any judgment, decree, statue or
regulation of any governmental authority applicable to such Stockholder or any
contract, commitment, agreement or restriction of any kind to which such
Stockholder is a party or by which it or its assets are bound. The execution and
delivery of this Agreement does not, and the consummation of the transactions
described herein will not, violate applicable law, or any mortgage, lien,
agreement, indenture, lease or understanding (whether oral or written) of any
kind outstanding relative to such Stockholder.
3(v) Approvals Required. No approval, authorization, consent, order or other
action of, or filing with any person, firm or corporation of any court,
administrative agency or other governmental authority is required in connection
with the execution and delivery by the Stockholders of this Agreement or the
consummation of the transaction described herein, except as disclosed herein an,
except to the extend that the parties are required to file reports in accordance
with revelant regulations under Federal and State securities laws.
4. Representations and Warranties of CCCX
CCCX, as a material inducement to the Company and Stockholders to enter into
this Agreement and Consummate the transactions contemplated hereby, makes the
following representations and warranties to the Company and Stockholders, which
representations are true and correct at this date, and will be true and correct
on the Closing Date as though made on as of such date:
4(a) Shares of Common Stock, Preferred Stock and Detachable Warrants. The Shares
to be delivered to the Stockholders at Closing will be valid and legally issued
shares of Common Stock, Preferred Stock and Detachable Warrants free and clear
of all liens, encumbrances, and preemptive rights, and will be fully paid on
non-assessable shares.
4(b) Due Authorization, Etc. This Agreement has been duly authorized, executed
and delivered by CCCX, and constitutes a legal, valid, and binding obligation no
consent or other governmental authority is required by CCCX for the execution,
delivery or performance of this Agreement by CCCX; no consent of any party to
any contrary or agreement to which CCCX is a party of by which any of its
property or assets are subject is required for the execution, delivery prior
performance of this Agreement by CCCX.
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4(c) Financial Statements.
(i) The audited financial statements included in CCCX's Initial Annual
Report on Form 10-KSB for the fiscal year ended September 30, 1999 (including
the related notes and schedules) have been prepared in accordance with GAAP
applied on a consistent basis throughout the periods covered thereby, present
fairly the financial condition of CCCX as of the indicated dates and the results
of operations of CCCX for the indicated periods, are correct and complete in all
material respects, and are consistent with the books and records of CCCX and its
Subsidiary.
(ii) The unaudited financial statements included in CCCX' Quarterly
Report on Form 10-QSB for the quarter ended March 31, 2000 (the "Most Recent
CCCX Fiscal Period End"), as of the date thereof, complies in all material
respects with the Securities Exchange Act and the rules and regulations of the
SEC promulgated thereunder, present fairly the results of operations of CCCX and
its Subsidiary for the periods covered, and is correct and complete in a
material respects.
4(d) Financial Statements. Undisclosed Liabilities. Except as set forth in
Schedule 3, CCCX: (i) has no material liabilities or obligations of any nature,
fixed or contingent, matured or unmatured, which are not shown or otherwise
provided for in the Statements; and (ii) all reserves established by CCCX and
set forth in the Statements are adequate and there are no material loss
contingencies (as such term is used in Statement of Financial Accounting
Standard No. 5 of the Financial Accounting Standards Board) which are not
adequately provided.
4(e) Material Adverse Change. Since the date of the Statements, there has not
been, and as of the Closing Date there shall not have been, any adverse material
changes in the CCCX's condition (financial or otherwise) or liabilities
(absolute, contingent or otherwise), whether or not arising from transitions in
the ordinary course of business; provided however, that the parties have agreed
that the financial position of CCCX will change to the extent that CCCX incurs
costs in connections with the transactions contemplated by this Agreement.
4(f) Due Organization, Etc. CCCX is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada, is
qualified to do business and in good standing in each state where it is required
to be qualified and such qualification is material and has the corporate power
to own its property and to carry on its business as now being conducted. The
Articles of Incorporation and By-Laws of CCCX, as will be in effect on the
Closing Date, are attached hereto as Exhibit "C" and are made a part hereof.
4(g) Tax Matters. CCCX has filed all federal, state and local, tax or related
returns and report due or required to be filed, which reports accurately reflect
in all material respects the amount of taxes due CCCX has paid all taxes or
assessments which have become due other than taxes or charges being contested in
good faith or not finally determined
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4(h) Agreements, Etc. CCCX has not breached, nor is there any pending or
threatened claims or any legal basis for a claim that CCCX has breached, nor has
an event occurred which with the passing of time would constitute a breach of
any of the terms or conditions of any agreements, contracts or commitments to
which CCCX is a party or by which CCCX or its assets are bound. A list of all
CCCX's material contracts, agreements or commitments (whether oral or written)
is set forth on Schedule 2 (see SEC Filings via internet) and true and correct
copies of all such contracts and agreements have been delivered by CCCX to the
Company on or prior to the Closing Date. The execution, delivery and performance
of this Agreement by CCCX will not be in conflict with or constitute a default
under any provisions of applicable law, CCCX's Articles of Incorporation or
by-laws, or any agreement or instrument to which CCCX is a party or by which it
or its assets are bound.
4(i) Capitalization. The capitalization of CCCX consists of 50,000,000
authorized common stock, $.001 par value per share, 17,042,046 outstanding and
20,000,000 shares of Preferred Stock, $.001 par value, none of which are
currently outstanding, being authorized by consent, and pursuant to Nevada
Corporation Law. All outstanding shares of the Common Stock have been duly
authorized, validity issued, and are fully-paid and non-assessable, and all such
shares were issued in compliance with all applicable federal and state
securities laws. There are not outstanding or presently authorized securities,
warrants, preemptive rights, subscription rights, options or related commitments
of any nature to issue any of CCCX's securities, by CCCX, other than those
stated in the Articles of Incorporation. For this acquisition CCCX will issue
2,000,000 shares of its voting Common Stock, $.001 par value, 5,000,000 shares
of its Series A $2.00 Callable Cumulative Convertible Preferred, $,001 par
value, with a $3.00 detachable tradable warrant exercisable within 10 years from
the date of issuance. The Preferred will have a 150% call premium and cannot be
called until after the anniversary date of one year from the date of issuance.
CCCX will be providing 2,000,000 shares for the cost, consulting fees and
financing regarding this transaction. CCCX will immediately file the appropriate
Registration Statement with the Securities Exchange Commission regarding the
registration of the shares pursuant to the shares being used in this
transaction. CCCX will lend the Company $500,000 to be funded no later than
August 15, 2000. The Company will executed a demand note bearing at one percent
over the prime rate quoted in the financial section of the Wall Street Journal
on the date that the note is executed in favor of CCCX. When the closing date
occurs the note will automatically extinguish.
4(j) Disclosure of Material Facts. CCCX has, and at the Closing Date will have,
disclosed to the Company all events, conditions and facts materially affecting
the business and prospects of CCCX; and CCCX has not and will not have, at the
Closing Date, withheld disclosure of any events, conditions and facts which it
may have knowledge of, or have reasonable grounds to know may materially,
adversely affect the business and prospects of CCCX.
4(k) Corporate Records. The corporate financial records, minute books and other
documents and records of CCCX are to be available to the Company prior to the
Closing Date. Such records are complete and correct and have been maintained in
accordance with good business and accounting practices.
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4(i) Stockholders List. Attached is Exhibit "D" is a true correct and complete
statement, setting forth the names and addresses of CCCX's stockholders.
4(m) Title to Assets. CCCX has good and marketable title to all of its assets,
free of any liens and encumbrances.
4(n) Bank Accounts. Exhibit "E" contains a complete list of all bank accounts
and safe deposit boxes of CCCX together with the name of authorized signatories
over such accounts and boxes.
4(o) Compliance, Governmental Authorizations CCCX has coupled in all respects
with all federal state, local, or foreign laws ordinances regulations, and
orders applicable to its business including without limitation federal and state
securities laws applicable to all offerings prior to the Closing Date. CCCX has
all federal, state, local and federal governmental licenses and permits material
to and necessary in the conduct of its business, and such licenses and permits
are in full force and effect and no violations are or have been recorded in
respect of any such licenses of permits, and no proceedings are pending or
threatened to revoke or limit the use of such permits.
4(p) Brokerage Fees. CCCX has incurred brokerage fees or similar charges in
connection with this Agreement. The fees will be paid by CCCX and has been
accounted for at 4(1).
5. Affirmative Covenants of the CCCX and its stockholders
CCCX and its stockholders, jointly and severally covenant to the Company (and
its Stockholders) that:
5(a) They will comply with all of the undertakings of CCCX set forth in the
CCCX's Registration Statement as amended, including without limitation, (I)
causing CCCX to use its best Efforts to register or qualify, or maintain in
effect the registration or qualification of, the shares of CCCX's Common Stock,
Preferred Stock, and the $3.00 detachable warrants: (ii) causing the CCCX to
make all filings required under Section 13 and 15(d) of the Securities Exchange
Act of 1934, as amended; (iii) preparing and filing of a Form 10-K for the next
fiscal year ended; (iv) filing of a Current Report on Form 8-K reporting the
completion of the transactions contemplated by this Agreement (which includes
the financial statements of the Company required to be included therein).
5(b) They will deliver to CCCX's management the Form 8-K to be filed to report
the completion of this transaction so that CCCX's management can review the
descriptions contained therein of CCCX and the terms of the transactions
contemplated by this Agreement, if required;
5(c) They will deliver to CCCX management, with a copy to its counsel (at the
addresses set forth herein), all reports, registration statements and other
documents, other than e exhibits, as filed with the SEC and the NASD during the
three year period commencing on the Closing Date, as these are done and
available; and
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6. Closing
The Closing (the "Closing") shall take place upon such date (the Closing Date")
as the parties hereto may mutual agree upon, but shall be no earlier than the
effective date of the registration statement, as amended. The closing shall take
place at such place as may be mutually agreed upon by the parties.
7. Conditions Precedent to Obligations of the Company and Stockholders
All obligations of Acquired and stockholders under this Agreement are subject to
the fulfillment, prior to or on the Closing Date of each of the following
conditions:
7(a) The representation and warranties by or on behalf of CCCX contained in this
Agreement or in any certificate or document delivered to the Company pursuant to
this provisions hereof shall be true in all material respects at and as of the
time of losing as though such representations and warranties were made at and as
of such time.
7(b) CCCX shall have performed and complied with all covenants, agreements, and
conditions required by this Agreement to be performed or complied with by its
prior to or at the Closing:
7(c) The present Directors of CCCX shall have caused the appointment of all of
the Company nominees to the Board of Directors of CCCX as agreed between CCCX
and the Company. The directors designated by the Company appointment are set
forth on Exhibit "F".
7(d) On the Closing Date, CCCX shall have no liabilities or obligations, fixed
or contingent with the exception of those in the ordinary course of business or
capitalization.
7(e) All instruments and documents delivered to the Company and Stockholders
pursuant to the provisions hereof shall be reasonably satisfactory to legal
counsel for the Company and Stockholders.
7(f) CCCX shall have delivered to the Company and Stockholders an opinion of
CCCX's counsel, dated the Closing Date to the effect that:
(1) CCCX is a corporation duly organized valid existing and in good
standing under the laws of the State of Nevada.
(2) CCCX has the corporate power to carry on its business as now being
conducted.
(3) This agreement has been duly authorized, executed and delivered by CCCX
and is a valid and binding obligation of CCCX, enforceable in accordance with
its terms, except to the extent that enforcement is limited by applicable
bankruptcy, reorganization, insolvency, moratorium, or similar laws affecting
creditor' rights and remedies generally or by general equity principles (and
excepting specific performance as a remedy);
CCCX has taken all corporate action necessary for its due performance under this
Agreement.
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The execution and delivery by CCCX of this Agreement an the consummation of the
transactions contemplated here by will not conflict with or result in a breach
of any provisions of CCCX's Articles of Incorporation or By-Laws or to the best
of such counsel's knowledge after inquiry and based upon information provided by
CCCX, constitute a default under or give rise to a right of termination,
acceleration, or cancellation under any agreement under which CCCX or any of its
properties are bound or violate any court order, writ or decree of injunction
applicable to CCCX;
Such counsel does not know, after inquiry, of (a) actions suits or other legal
proceedings or investigations pending or threatened against or relating to or
materially adversely affecting CCCX; and (b) any unsatisfied judgment against
CCCX.
(7) The Authorized and, to such counsel's best knowledge after inquiry,
outstanding capitalization of CCCX is as set forth in Section 4(i) all of the
outstanding shares of CCCX's common stock are validly issued, full-paid and
non-assessable, without preemptive rights, and to the best counsel's knowledge
after inquiry, there are no outstanding subscriptions, options, rights, warrants
or other transfer agreements (whether oral or written), other than as set forth
in Section 4(j) of this Agreement.
7(g) There shall be delivered to the Stockholders by CCCX an officer's
certificate, signed by Catherine J. Jacobs, the President and, the Secretary, to
the effect that all of the representations and warranties of the CCCX set forth
herein are true and complete in all material respects as of the closing date,
and that the CCCX has complied in all material respects with its covenants and
agreements set forth here required to be complied with by the closing.
8. Conditions Precedent to Obligations of the Company
All obligations of the Company under this Agreement are subject to the
fulfillment, prior to or on the Closing Date, of each of the following
conditions:
8(a) The representations and warranties by the Company and Stockholders
contained in this Agreement or in any certificate or document delivered to CCCX
pursuant to the provision hereof shall be true and all material respects at and
as of the time of Closing as though such representations and warranties were
made at and as of such time.
8(b) The Company and Stockholders shall have performed all covenants agreements,
and conduits required by this Agreement to be performed or complied with by it
prior to or at the Closing;
8(c) The Company shall have delivered all of the exhibits and schedules required
herein; including the Financial Statements, to CCCX and such exhibits schedules
and Financial Statements shall have been acceptable to CCCX, in its sole and
absolute discretion.
8(e) Acquired shall have delivered to CCCX an opinion of counsel, dated the
Closing Date, to the effect that:
(1) The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Utah and is duly qualified to do
business in any jurisdiction where so required;
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(2) The Company has the corporate power to carry on its business as now being
conducted.
(3) This Agreement has been duly authorized, executed and delivered by CCCX and
Stockholders, and is a valid and binding obligation of CCCX and Stockholders
enforceable in accordance with its terms, except to the extent that enforcement
is limited by applicable bankruptcy, reorganization, moratorium, insolvency or
similar laws after creditors' rights and remedies generally or by general equity
principal (and excluding specific performance as a remedy), including
limitations on enforcement by reason of fraudulent, conveyance and corporate and
other laws restricting indemnification by corporations shareholders of a
corporation, or its affiliates;
8(f) There shall be delivered to CCCX a certificate executed by the President
and Secretary of the Company to the effect that all of the representations and
warranties of the Company set forth herein are true and complete in all material
respected as of the Closing Date, and that the Company has complied in all
material respects with its covenants and agreement set forth therein required to
be complied with it by the closing.
9. Indemnification
CCCX shall indemnify and hold harmless the Company to this Agreement at all
times after the date of this Agreement against and in respect of any liability
damage or deficiency all actions suits, proceedings, demands, assessments,
judgments, costs and expenses including attorney's fee (through all appeals)
incident to any of the foregoing, resulting for any misrepresentation, breach of
covenant or warranty or non-fulfillment of any agreement on the part of such
party under this Agreement or for any misrepresentation or omission for any
certificate furnished or to be furnished to a party hereunder. Subject to the
terms of this Agreement, the defaulting party shall reimburse the other party or
parties, on demand, for any reasonable payment made by said parties at any time
after Closing in respect of any liability or claim to which the foregoing
indemnity relates, if such payment is made after reasonable notice to the other
party defend or satisfy the same and such party failed to defend or satisfy
same.
10. Nature of Representations and Warranties
All of the parties hereto are executing and carrying out the provisions of this
Agreement in reliance on the representation, warranties, covenants and
agreements contained I this Agreement or at the Closing of the transaction
herein provided for and an investigation which they might have made or any other
representations warranties agreements, promises or information, written or oral,
made by the other party or any other person shall not be deemed a waiver of any
breach of any such representation warranty covenant or agreement. CCCX
represents and agrees that its chief executive officer is a sophisticated
investor and that the business in which the Company is engaged is subject to a
high degree of competition from other companies, many of which have greater
financial and other resources than the Company. For these and other reasons an
investment in the Company's capital stock is subject to substantial risks and
speculative.
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11. Documents at Closing
At the Closing, the following transactions shall occur, all of such transactions
being deemed to occur simultaneously:
11(a) Stockholders or the Company as applicable, will deliver, or cause to be
delivered, to CCCX the following:
(1) Stock certificates for the shares of common stock of the Company
being exchanged hereunder, duly endorsed or with stock powers attached in blank.
(2) All corporate records of Acquired, including without limitation
corporate minute books (which shall contain copies of the Articles of
Incorporation and by-laws, as amended to the Closing, stock books, stock
transfer books, corporate seals, and such other corporate books and records as
may reasonably be requested by CCCX and its counsel:
(3) The opinion of Counsel for the Company as set forth herein:
(4) A certificate executed by the Company to the effect that all
representations and warranties made by the Company and Stockholders
respectively, under this Agreement are (4) A certificate executed by the Company
to the effect that all representations and warranties made by the Company and
Stockholders respectively, under this Agreement are true and correct as of the
Closing Date, as though originally given to CCCX on said date;
(5) Such other instruments and documents, if any, as are required to
be delivered pursuant to the provisions of this Agreement, or which may be
reasonably requested in furtherance of the provisions of this Agreement.
11. b.1. CCCX will deliver the Common Stock, Preferred Stock, and Warrants to
the Stockholders, and will extinguish the $500,000 note to the Company.
11. b.2. CCCX will also deliver as applicable 3,4 & 5 above.
12. Miscellaneous
12(a) Further Assurances. At any time, and from time to time, after the Closing
each party will execute such additional instruments and take such action as may
be reasonably requested by the other party to confirm or perfect title to any
property transferred hereunder or otherwise to carry out the intent and purposes
of this Agreement.
12(b) Waiver. Any failure on the part of any party hereto in complying with any
of its obligations; the party to whom such compliance is owed hereunder may
waive agreements or conditions in writing.
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12(c) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid first class registered or certified mail, return receipt requested to
the following addresses or such other addresses as are given to other parties in
the manner set forth herein:
IF TO CCCX:
Mr. Karl Jacobs
President
Centre Capital Corp.
2619 Gravel
Fort Worth, Texas 76118
IF TO THE COMPANY:
Mr. Robert L. Bitterli
Chief Executive Officer
American Absorbents Natural Products Inc.
6015 Lohman Ford Road, #100
Lago Vista, Texas 78645
12(d) Headings. The section and subsection headings in the Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
12(e) Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12(f) Governing Law. This Agreement shall be governed by the laws of the State
of Nevada and the jurisdictions shall be Fort Worth, Texas.
12(g) Binding Effect. This Agreement shall be binding upon the parties hereto
and inure to the benefit of the parties, their respective heirs, administrators,
executors, successor and assigns.
12(h) Entire Agreement. This Agreement is the entire agreement of the parties
covering everything agreed upon or understood in the transaction. There are no
oral promises, conditions, representation, understandings, interpretations or
terms of any kind as conditions or inducements to the execution hereof.
12(i) Time. Time is of the essence.
12(j) Severability. If any part of this Agreement is determined by a court of
competent jurisdiction to be unenforceable, the balance of the Agreement shall
remain in full force and effect.
12(k) Default Costs. In the event any party hereto has to resort to legal action
to enforce any of the terms hereof such party shall be entitled to collect
attorneys' fees and other costs for the party in default.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
Centre Capital Corp.
By:_____/S/_______________
Karl Jacobs, CEO
Date Executed: August 9, 2000
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American Absorbents Natural Products Inc.
By:______/S/_________________
Robert L. Bitterli, CEO
Date Executed: August 9, 2000
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