SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) July 29, 1999
AUREUS CORPORATION
(Exact name of registrant as specified in its charter)
WOODLAKE VILLAGE ASSOCIATES, INC.
(Former Name)
Delaware
(State or other jurisdiction of incorporation)
0-24380 33-0601502
(Commission File Number) (IRS Employer Identification No.)
83 North 490 West, American Fork, Utah 84003
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (801) 492-1705
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Item 1. Change in Control of Registrant.
Item 2. Acquisition or Disposition of Assets.
Pursuant to an Agreement and Plan of Merger dated June 14, 1999
(the "Agreement") and subject to the closing of the offering, a wholly owned
subsidiary of the Registrant, Aureus Acquisition Corp. merged into Aureus, Inc.,
a Utah Corporation ("Aureus") effective July 29, 1999 and the Company issued
3,505,941 shares to acquire all of the outstanding shares of Aureus. Aureus
employee stock options to purchase 212,000 shares at a price of $1.00 per share
were converted in the Merger to 398,560 Shares of the Registrant at $.53 per
share. The Registrant changed its name to Aureus Corporation and Aureus became a
wholly owned subsidiary of Woodlake. James Phillips, the Chairman and CEO of
Aureus, was elected as the CEO of the Company and as a director, with the
remaining directors, Richard Stout, President, and Ray Meservy. Prior to the
closing of the Merger management of Aureus had no affiliation with the
Registrant. The 1,000,000 shares of the Registrant outstanding prior to the
closing were unaffected.
The names of the current directors and executive officers of the
Registrant and holders of more than 5% of the outstanding shares of common stock
and the number of shares held and the percentage of the total issued and
outstanding Common Stock (the only voting security) of the Registrant owned by
each of them are as follows.
<TABLE>
<CAPTION>
Number Percentage
of Shares of Shares
Name Office Owned Owned
<S> <C> <C>
James Phillips CEO and Director 565,880 11.3%
Richard Stout President and Director 619,272 12.4%
Alan Fine 503,840 10.1%
Lee Monson 579,980 11.6%
Ray Meservy Director 45,120 1.0%
All officers and directors as
a group (3 persons) 1,230,272 27.3%
</TABLE>
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Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(a)(b) The required financial statements and pro forma financial
information is unavailable as of the date hereof and will be filed by the
Registrant pursuant to the requirements of the Securities Exchange Act and the
rules and regulations promulgated thereunder within 60 days of the date of the
event reported herein.
(c) Exhibits
2. Plan of acquisition, reorganization, arrange-
ment, liquidation or succession.
2.1. Agreement and Plan of Reorganization,
dated June 14, 1999, between the Reg-
istrant and Aureus.
3. Certificate of Incorporation and Bylaws
3.3 Amendment to Certificate of Incorporation
changing name to Aureus Corporation.
3.4 Amendment to Certificate of Incorporation
changing name to e-automate Corporation.
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SIGNATURES
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 thereunto duly authorized.
Dated: July 29, 1999 AUREUS CORPORATION
By: /s/ Richard M. Stout
Richard M. Stout
President
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
WOODLAKE VILLAGE ASSOCIATES, INC.
(Pursuant to Section 242 of
the Delaware General Corporation Law)
The undersigned Jehu Hand, being the President of Woodlake
Village Associates, Inc., a Delaware corporation (the "Corpora-
tion"), does hereby certify as follows:
1. The Certificate of Incorporation
of the Corporation is hereby amended pursuant to Section 242(a)(1) of the
General Corporation Law of the State of Delaware, in Article First thereof, to
read in its entirety as follows:
FIRST: The name of the corporation is Aureus
Corporation.
2. The foregoing Amendment to the
Certificate of Incorporation was first authorized by the Board of Directors and
subsequently duly adopted by consent action duly adopted by the holders of all
of the Corporation's outstanding stock entitled to vote thereon in accordance
with Section 228 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment as of July 2, 1999 and DOES HEREBY CERTIFY, that the facts stated in
this Certificate of Amendment are true and correct.
Jehu Hand
President
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AUREUS CORPORATION
(Pursuant to Section 242 of
the Delaware General Corporation Law)
The undersigned Richard Stout, being the President of Aureus
Corporation, a Delaware corporation (the "Corporation"), does hereby certify as
follows:
1. The Certificate of Incorporation of the Corporation is hereby
amended in its entirety pursuant to Section 242(a)(1) of the General Corporation
Law of the State of Delaware, in Article First thereof, to read hereafter as
follows:
FIRST: The name of the corporation is e-automate
Corporation.
2. The foregoing Amendment to the Certificate of Incorporation was
first authorized by the Board of Directors and subsequently duly adopted by
consent action by the holders of all of the Corporation's outstanding stock
entitled to vote thereon in accordance with Section 228 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment as of August 20, 1999 and DOES HEREBY CERTIFY that the facts stated in
this Certificate of Amendment are true and correct.
/s/ Richard Stout
Richard Stout
President
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is dated
June 14, 1999, and is by and between Woodlake Village Associates, Inc., a
Delaware corporation (the "Company"), Aureus Acquisition Corp, a Utah
Corporation ("AAQ"), and Aureus Corporation, a Utah corporation ("Aureus").
R E C I T A L S
WHEREAS, the shareholders of Aureus ("Shareholders") own the shares of
capital stock of Aureus as set forth in Schedule 1 attached hereto, constituting
all of the issued and outstanding stock of Aureus (the "Aureus Shares");
WHEREAS, the Company is a public company, required to file reports
under Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act");
WHEREAS, the Company is the owner of all of the outstanding shares of AAQ; and
WHEREAS, the Board of Directors of the Company, AAQ and Aureus deem it
advisable that the acquisition by the Company of Aureus be effected through the
merger (the "Merger") of Aureus and AAQ pursuant to this Agreement and Articles
of Merger; and
WHEREAS, the Company desires to acquire all of the outstanding Aureus
shares for shares of Common Stock of the Company, in a transaction that
qualifies under Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as
amended (the "Code"); and
WHEREAS, the Boards of Directors of the Company, AAQ and Aureus intend
that the Merger constitute a "reorganization" under Section 368(a)(2)(E) of the
Code, and the infusion of assets to be a tax-free transfer under Section 351 of
the Code and the rules and regulations of the Internal Revenue Service (the
"IRS") promulgated thereunder, have approved and adopted this Agreement as a
"plan of reorganization" within the meaning of Section 368 of the Code, and the
rules and regulations of the IRS promulgated thereunder, and intend that the
Merger be treated as a tax free merger under the Code and the rules and
regulations of the IRS promulgated thereunder.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in reliance upon the representations and warranties
hereinafter set forth, the parties agree as follows:
I. MERGER
1.01 Merger. AAQ shall merge with and into Aureus pursuant to the Utah
Revised Business Corporation Act (the "Merger") and in accordance with the
Articles of Merger among the Company, AAQ and Aureus (the "Articles of Merger"),
a copy of which is attached hereto as Exhibit 2. The Merger shall be effective
on the date on which the Articles of Merger, or a conformed copy thereof, in
substantially the form annexed hereto as Exhibit 2, has been filed
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with the Division of Corporations and Commercial Code of Utah, which filing
shall take place upon Closing.
1.02. Closing. The Closing of the transaction contemplated by this
Agreement (the "Closing") shall take place at the offices of Hand & Hand within
3 business days after the completion of the minimum offering described in
Section 6.01. At Closing, and pursuant to the Articles of Merger, all
outstanding Aureus Shares shall be cancelled and in lieu thereof the
Shareholders shall receive an aggregate of 3,505,941 shares of Company Common
Stock (the "Company Shares"). The Merger shall be a "Reverse Triangular Merger"
pursuant to Section 368 (a)(2)(E) of the Internal Revenue Code.
1.03. Deliveries. Upon Closing, the parties are delivering the
following documents:
1.03(a). The items and documents set forth in Sections
1.01 and 1.02.
1.03(b). The Company Shares described in Section
1.02
1.03(c). The Company shall deliver the resignations of
all of its current officers and directors, and a board resolution
electing James Phillips, Richard Stout, and Ray Meservy to the Board of
Directors of the Company.
1.04. Filings. Following with the Closing, the Company shall
file the following documents:
ies and Exchange Commission, reporting the transactions set
forth in this Agreement, any change of auditors, or other events
required to be reported in such report.
1.04(b). A Form 3 report of beneficial ownership with
the U.S. Securities and Exchange Commission with respect to each
director, executive officer or greater than 10% holder of Company
Shares, signed by such director, executive officer or shareholder, as
the case may be.
1.04(c). A Schedule 13D with the U.S. Securities and
Exchange Commission for each person who is required to file such form
as a result of obtaining greater than 5% beneficial ownership of the
Company's Common Stock as a result of the transactions contemplated by
this Agreement.
1.04(d). A Certificate of Amendment to the Certificate
of Incorporation of the Company with the Delaware Secretary of State
changing the name of the Company to "Aureus, Inc." or a similar name as
may be determined by the Board of Directors.
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II. REPRESENTATIONS AND WARRANTIES OF AUREUS
Aureus represents and warrants to the Company as follows, as of the
date of this Agreement and as of the Closing:
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2.01. Organization.
2.01(a). Aureus is a corporation duly organized, validly
existing and in good standing under the laws of the State of Utah;
Aureus has the corporate power and authority to carry on its business
as presently conducted; and Aureus is qualified to do business in all
jurisdictions where the failure to be so qualified would have a
material adverse effect on its business.
2.02. Capitalization.
2.02(a). The authorized capital stock and the issued and
outstanding shares of Aureus is as set forth on Exhibit 2.02(a). All of
the issued and outstanding shares of Aureus are duly authorized,
validly issued, fully paid and nonassessable.
2.02(b). Except as set forth in Exhibit 2.02(b) there are
no outstanding options, warrants, or rights to purchase any securities
of Aureus.
2.03. Subsidiaries and Investments. Aureus does not own
any capital stock or have any interest in any corporation, partnership or
other form of business
organization, except as described in Exhibit 2.03 hereto.
2.04. Financial Statements. The unaudited financial statements of
Aureus as of and for the period since its inception to March 31, 1999, including
the unaudited balance sheet as of March 31, 1999 and the related unaudited
statement of operations for the period then ended (the "Financial Statements")
present fairly the financial position and results of operations of Aureus, on a
consistent basis. The financial records of Aureus are of such a character and
quality that an unqualified (except as to going concern) audit of the Aureus
Financial Statements may be performed within 75 days of the Closing.
2.05. No Undisclosed Liabilities. To the best knowledge of Aureus,
other than as described in Exhibit 2.05 attached hereto, Aureus is not subject
to any material liability or obligation of any nature, whether absolute,
accrued, contingent, or otherwise and whether due or to become due, which is not
reflected or reserved against in the Financial Statements, except those incurred
in the normal course of business.
2.06. Absence of Material Changes. Since March 31, 1999,
except as described in any Exhibit attached hereto or as required or permitted
under this
Agreement, there has not been:
2.06(a). any material adverse change in the condition
(financial or otherwise) of the properties, assets, liabilities or
business of Aureus, except changes in the ordinary course of business
which, individually and in the aggregate, have not been materially
adverse;
2.06(b). any redemption, purchase or other acquisition
of any shares of the capital stock of Aureus, or any issuance of any
shares of capital stock
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or the granting, issuance or exercise of any rights, warrants, options
or commitments by Aureus relating to their authorized or issued capital
stock; or
2.06(c). any change or amendment to the Articles of
Incorporation of Aureus.
2.07. Litigation. Except as set forth in Exhibit 2.07 attached hereto,
to the best knowledge of Aureus there is no litigation, proceeding or
investigation pending or threatened against Aureus affecting any of its
properties or assets or against any officer, director, or stockholder of Aureus
that might result, either in any case or in the aggregate, in any material
adverse change in the business, operations, affairs or condition of Aureus or
its properties or assets, or that might call into question the validity of this
Agreement, or any action taken or to be taken pursuant hereto.
2.08. Title To Assets. Aureus has good and marketable title to all of
its assets and properties now carried on its books including those reflected in
the balance sheets contained in the Financial Statements, free and clear of all
liens, claims, charges, security interests or other encumbrances, except as
described in Exhibit 2.08 attached hereto or any other Exhibit.
2.09. Transactions with Affiliates, Directors and Shareholders. Except
as set forth in Exhibit 2.09 attached hereto, there are and have been no
contracts, agreements, arrangements or other transactions between Aureus, and
any officer, director, or stockholder of Aureus, or any corporation or other
entity controlled by the Shareholders, a member of the Shareholders' families,
or any affiliate of the Shareholders.
2.10. No Conflict. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with or
result in a breach of any term or provision of, or constitute a default under,
the Articles of Incorporation or Bylaws of Aureus, or any agreement, contract or
instrument to which Aureus is a party or by which it or any of its assets are
bound.
2.11. Disclosure. To the actual knowledge of Aureus, neither this
Agreement, the Financial Statements nor any other agreement, document,
certificate or written or oral statement furnished to the Company by or on
behalf of Aureus in connection with the transactions contemplated hereby,
contains any untrue statement of a material fact or when taken as a whole omits
to state a material fact necessary in order to make the statements contained
herein or therein not misleading.
2.12. Authority. Aureus has full power and authority to enter into this
Agreement and to carry out the transactions contemplated herein. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby, have been duly authorized and approved by the Board of
Directors of Aureus and, other than the approval by the Shareholders of Aureus
described in Section 6.04, no other corporate proceedings on the part of Aureus
are necessary to authorize this Agreement and the transactions contemplated
hereby.
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III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Aureus as follows, as of
the date of this Agreement and as of the Closing:
3.01. Organization.
3.01(a). The Company is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Delaware; has the corporate power and authority to carry on its
business as presently conducted; and is qualified to do business in all
jurisdictions where the failure to be so qualified would have a
material adverse effect on the business of the Company.
3.01(b). The copies of the Certificate of Incorporation,
of the Company, as certified by the Secretary of State of Delaware, and
the Bylaws of the Company are complete and correct copies of the
Certificate of Incorporation and the Bylaws of the Company as amended
and in effect on the date hereof. All minutes of meetings and actions
in writing without a meeting of the Board of Directors and shareholders
of the Company are contained in the minute book of the Company and no
minutes or actions in writing without a meeting have been included in
such minute book since such delivery to Aureus that have not also been
delivered to Aureus.
3.02. Capitalization of the Company. The authorized capital stock of
the Company consists of 20,000,000 shares of Common Stock, par value $.001 per
share, of which 1,000,000 shares are outstanding, and 1,000,000 shares of
preferred stock, none of which is outstanding. All outstanding shares are duly
authorized, validly issued, fully paid and non-assessable. Following the merger
issuance of Company Shares, and the placement described in Section 6.01, the
capitalization of the Company shall be 5,000,000 shares of common stock.
3.03. Subsidiaries and Investments. Other than AAQ, the
Company does not own any capital stock or have any interest in any corporation,
partnership,
or other form of business organization. AAQ is newly organized and has no
liabilities or assets.
3.04. Authority. The Company has full power and authority to enter into
this Agreement and to carry out the transactions contemplated herein. The
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby, and the issuance of the Company Shares in accordance with
the terms hereof, have been duly authorized and approved by the Board of
Directors of the Company and no other corporate proceedings on the part of
Company are necessary to authorize this Agreement, the transactions contemplated
hereby and the issuance of the Company Shares in accordance with the terms
hereof.
3.05. No Undisclosed Liabilities.
Other than as described
in Exhibit 3.05 attached hereto, the Company is not subject to any material
liability or obligation
of any nature, whether absolute, accrued, contingent, or otherwise and whether
due or to become
due.
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3.06. Litigation. There is no litigation, proceeding or investigation
pending or to the knowledge of the Company, threatened against the Company
affecting any of its properties or assets, or, to the knowledge of the Company,
against any officer, director, or stockholder of the Company that might result,
either in any case or in the aggregate, in any material adverse change in the
business, operations, affairs or condition of the Company or any of its
properties or assets, or that might call into question the validity of this
Agreement, or any action taken or to be taken pursuant hereto.
3.07. Title To Assets. The Company has good and marketable title to all
of its assets and properties now carried on its books including those reflected
in the balance sheet contained in the Company's financial statements, free and
clear of all liens, claims, charges, security interests or other encumbrances,
except as described in the balance sheet included in the Company's financial
statements or on any Exhibits attached hereto.
3.08. Contracts and Undertakings. Exhibit 3.08 attached hereto contains
a list of all contracts, agreements, leases, licenses, arrangements, commitments
and other undertakings to which the Company is a party or by which it or its
property is bound. Each of said contracts, agreements, leases, licenses,
arrangements, commitments and undertakings is valid, binding and in full force
and effect. The Company is not in material default, or alleged to be in material
default, under any contract, agreement, lease, license, commitment, instrument
or obligation and, to the knowledge of the Company, no other party to any
contract, agreement, lease, license, commitment, instrument or obligation to
which the Company is a party is in default thereunder nor, to the knowledge of
the Company, does there exist any condition or event which, after notice or
lapse of time or both, would constitute a default by any party to any such
contract, agreement, lease, license, commitment, instrument or obligation.
3.09. Underlying Documents. Copies of all documents
described in any Exhibit attached hereto (or a summary of any such contract,
agreement or
commitment, if oral) have been made available to Aureus and are complete and
correct and
include all amendments, supplements or modifications thereto.
3.10. Transactions with Affiliates, Directors and Shareholders. Except
as set forth in Exhibit 3.10 hereto, there are and have been no contracts,
agreements, arrangements or other transactions between the Company, and any
officer, director, or 5% stockholder of the Company, or any corporation or other
entity controlled by any such officer, director or 5% stockholder, a member of
any such officer, director or 5% stockholder's family, or any affiliate of any
such officer, director or 5% stockholder.
3.11. No Conflict. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with or
result in a breach of any term or provision of, or constitute a default under,
the Certificate of Incorporation or Bylaws of the Company, or any agreement,
contract or instrument to which the Company is a party or by which it or any of
its assets are bound.
3.12. Disclosure. To the actual
knowledge of the Company,
neither this Agreement nor any other agreement, document, certificate or
written or oral statement
furnished to Aureus and the Shareholders by or on behalf of the Company in
connection with
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the transactions contemplated hereby, contains any untrue statement of a
material fact or when taken as a whole omits to state a material fact necessary
in order to make the statements contained herein or therein not misleading.
3.13. Financial Statements. The
financial statements of the
Company set forth in its Form 10K-SB for the year ended March 31, 1999 present
fairly the
financial position and results of operations of the Company, on a consistent
basis.
3.14. Absence of Material Changes.
Since March 31, 1999,
except as described in any Exhibit hereto or as required or permitted under
this Agreement, there
has not been:
3.14(a). any material change
in the condition (financial
or otherwise) of the properties, assets, liabilities or business of
Company, except changes in the ordinary course of business which,
individually and in the aggregate, have not been materially adverse.
3.14(b). any redemption, purchase or other acquisition
of any shares of the capital stock of the Company, or any issuance of
any shares of capital stock or the granting, issuance or exercise of
any rights, warrants, options or commitments by the Company relating to
their authorized or issued capital stock.
3.14(c). any amendment to the
Certificate of
Incorporation of the Company.
3.15 Securities Law Compliance
3.15(a) The Company's common stock is registered under Section
12(g) of the Exchange Act. The Company has filed all reports and other
material required to be filed by it with the SEC for the last 12 months
pursuant to Section 13 or other provisions of the Exchange Act. Such
filed reports and materials do not contain any misstatements of
material facts, nor do they omit any material information required to
be stated therein or necessary to prevent the statements therein from
becoming misleading.
3.15(b) The currently outstanding common stock of the Company
was issued pursuant to valid exemptions from registration under the
Securities Act of 1933 pursuant to Regulations D or S promulgated
thereunder. The currently outstanding common stock of the Company was
issued pursuant to valid exemptions from registration under the
securities laws of the states and foreign jurisdictions where the
offerings of such common stock occurred.
IV. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
All representations, warranties and covenants of the Company and Aureus
contained herein shall survive the consummation of the transactions contemplated
herein and remain in full force and effect.
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V. CONDITIONS TO CLOSING
5.01. Conditions to Obligation of Aureus. The obligations of Aureus
under this
Agreement shall be subject to each of the following conditions:
5.01(a). The representations and warranties of the Company
herein contained shall be true in all material respects at the Closing
with the same effect as though made at such time. The Company shall
have performed in all material respects all obligations and complied in
all material respects, to its actual knowledge, with all covenants and
conditions required by this Agreement to be performed or complied with
by it at or prior to the Closing.
5.01(b). No injunction or restraining order shall be in
effect, and no action or proceeding shall have been instituted and, at
what would otherwise have been the Closing, remain pending before a
court to restrain or prohibit the transactions contemplated by this
Agreement.
5.01(c). All statutory requirements for the valid consummation
by the Company of the transactions contemplated by this Agreement shall
have been fulfilled. All authorizations, consents and approvals of all
governments and other persons required to be obtained in order to
permit consummation by the Company of the transactions contemplated by
this Agreement shall have been obtained.
5.01(d). The fulfillment of the obligations of the Company
(including the sale
of the offering set forth in Section 6.01.
5.02. Conditions to Obligations of the Company. The obligation
of the Company
under this Agreement shall be subject to the following conditions:
5.02(a). The representations and warranties of Aureus herein
contained shall be true in all material respects as of the Closing, and
shall have the same effect as though made at the Closing; Aureus shall
have performed in all material respects all obligations and complied in
all material respects, to its actual knowledge, with all covenants and
conditions required by this Agreement to be performed or complied with
by it prior to the Closing.
5.02(b). No injunction or restraining order shall be in effect
prohibiting this Agreement, and no action or proceeding shall have been
instituted and, at what would otherwise have been the Closing, remain
pending before the court to restrain or prohibit the transactions
contemplated by this Agreement.
5.02(c). All statutory requirements for the valid consummation
by Aureus of the transactions contemplated by this Agreement shall have
been fulfilled. All authorizations, consents and approvals of all
governments and other persons required to be obtained in order to
permit consummation by Aureus of the transactions contemplated by this
Agreement shall have been obtained.
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5.02(d) The fulfillment of the obligations of Aureus set
forth in Section 6.04.
VI. CERTAIN AGREEMENTS
6.01. Transfer of Assets. The Company shall immediately commence the
preparation of a private placement memorandum to issue or sell 500,000 units, at
a net price of $3.00 per unit, which may be subscribed for with shares of a
public company acceptable to Aureus (the "Securities"). The infusion of cash and
securities in this placement is intended to qualify as a tax-free transaction
under Section 351 of the Code. The offering shall be for 500,000 Shares. The
Company shall rely on information provided by Aureus in the preparation of such
private placement memorandum. Aureus agrees to indemnify the Company and persons
who control the Company for any false statement of a material fact or the
omission of any material fact required to be included to make the statements
made in the memorandum not misleading, related to Aureus; provided that such
statement or omission was made in reliance on information provided in writing.
The Company agrees to indemnify Aureus and persons who control Aureus for any
false statement of a material fact or the omission of any material fact required
to be included to make the statements made in the memorandum not misleading,
related to the Company; provided that such statement or omission was made in
reliance on information provided in writing. The parties acknowledge, however,
that it is the position of the Securities and Exchange Commission that
indemnification for liabilities under the federal securities laws is against
public policy and is unenforceable.
6.02. Reporting Requirements. The Company shall file all reports
required by Section 13 of the Securities Exchange Act of 1934 and shall maintain
its books and records in accordance with Sections 12 and 13 thereof. The parties
agree that the failure of the Company to make such filings with the Securities
and Exchange Commission shall constitute a material breach of this Agreement.
6.03. Shareholder Approval. Aureus shall submit the Merger to its
Shareholders for approval, and the Company shall approve the Merger as the sole
shareholder of AAQ. The Closing is subject to not more than 10% of the Aureus
shareholders electing dissentor's rights under the Utah Revised Business
Corporation Act. The Board of Directors of Company, prior to the Closing, will
reserve sufficient shares of Company Common Stock for issuance pursuant to the
terms of the Articles of Merger and take such other action as is necessary in
connection therewith.
VII. MISCELLANEOUS
7.01. Finder's Fees, Investment Banking Fees. Neither Aureus nor the
Company have retained or used the services of any person, firm or corporation in
such manner as to require the payment of any compensation as a finder or a
broker in connection with the transactions contemplated herein.
7.02. Tax Treatment. The transactions contemplated hereby are intended
to qualify as a so-called "tax-free" reorganization under the provisions of
Section 368 of the Code and as a tax free transfer under Section 351 of the
Code. The Company and Aureus acknowledge, however, that they each have been
represented by their own tax advisors in connection with this
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transaction; that neither has made any representation or warranty to the other
with respect to the treatment of such transaction or the effect thereof under
applicable tax laws, regulations, or interpretations; and that no attorney's
opinion or private revenue ruling has been obtained with respect to the effects
thereof under the Internal Revenue Code of 1986, as amended.
7.03. Further Assurances. From time to time, at the other party's
request and without further consideration, each of the parties will execute and
deliver to the others such documents and take such action as the other party may
reasonably request in order to consummate more effectively the transactions
contemplated hereby.
7.04. Parties in Interest. Except as otherwise expressly provided
herein, all the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective heirs,
beneficiaries, personal and legal representatives, successors and assigns of the
parties hereto.
7.05. Entire Agreement; Amendments. This Agreement, including the
Schedules,
Exhibits and other documents and writings referred to herein or delivered
pursuant hereto, which
form a part hereof, contains the entire understanding of the parties with
respect to its subject
matter. There are no restrictions, agreements, promises, warranties, covenants
or undertakings
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other than those expressly set forth herein or therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter. This Agreement may be amended only by a written
instrument duly executed by the parties or their respective successors or
assigns.
7.06. Headings, Etc. The section and paragraph headings contained
in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretations
of this Agreement.
7.07. Pronouns. All pronouns and any variations thereof shall be
deemed to refer to
the masculine, feminine or neuter, singular or plural, as the identity of the
person, persons, entity
or entities may require.
7.08. Counterparts. This Agreement may be executed in several
counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same
instrument.
7.09. Governing Law. This Agreement shall be governed by the laws
of the State of
California (excluding conflicts of laws principles) applicable to contracts to
be performed in the
State of California.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the parties hereto as the date first above written.
WOODLAKE VILLAGE AUREUS CORPORATION
ASSOCIATES, INC.
By: By:
Name: Name:
Title: Title:
AUREUS ACQUISITION CORP.
By:
Name:
Title:
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