EXHIBIT 10.5
ITEM 1,(10)
PURCHASE AND SUBSCRIPTION AGREEMENT BETWEEN
PHOENIX RESOURCES TECHNOLOGIES, INC. AND ROCKY MOUNTAIN
CRYSTAL WATER, INC.
DATED JAUNARY 31, 1997
PURCHASE AND SUBSCRIPTION AGREEMENT
THIS AGREEMENT MADE AS OF THE 31ST DAY OF JANUARY 1997 BY AND BETWEEN
PHOENIX RESOURCES TECHNOLOGIES, INC., [PRTI] A NEVADA CORPORATION, HEREINAFTER
REFERRED TO AS "PRTI AND OR ACQUIROR" AND ROCKY MOUNTAIN CRYSTAL WATER,
INC.,RMCW A WYOMING CORPORATION, HEREINAFTER AS REFERRED TO AS THE "RNCW,
PURCHASER OR SUBSCRIBER / ACQUIREE"; COLLECTIVELY REFERRED TO AS THE PARTIES.
WITNESSETH
RECITALS
WEHEREAS: "ACQUIROR" WISHES TO ACQUIRE THE CONTROLLING SHARE OWNERSHIP INTEREST
OF ROCKY MOUNTAIN CRYSTAL WATKR, INC., A WYOMING CORPORATION, HERE-IN-AFTER
REFERRED TO ALSO AS "RMCW", FOR AND IN GOOD AND VALUABLE CONSIDERATION, AND;
WHEREAS: ACQUIROR WISHES TO, AND SUBSCRIBER / PURCHASER WISHES TO ACQUIRE
ACQUIROR'S 6,000,000 CLASS "B" PREFERRED CAPITAL STOCK OWERSHIP OF "PRTI" FOR
AND IN CONSIDERATION OF 6,000,000 CO~ON SHARES ISSUED BY SUBSCRIBER TO ACQUIROR,
AND;
WHEREAS: THE PARTIES TO THIS AGREEMENT HEREIN AGREE; THAT THIS TRANSACTION IS
BY MEANS OF PRIVATE SALE AND TREATY AND IS REFERENCED SOLELY AS TO THE
RESPECTIVE CONSIDERATION PAID SHARES EXCHANGED AS BEING A PRIVATE SECURITIES
TRANSACTION FOR ACQUISITION PURPOSES, AS PROMULGATED BY ANY STATE, TERRITORIAL,
PROVINCIAL OR FEDERAL AGENCY RULE OR LAW.
WHEREAS: THE PARTIES TO THIS AGREEMENT HAVE AS HEREIN REPRESENTED AND
WARRANTED, ENTERED INTO THIS BINDING AGREEMENT, WHICH TERMS ARE HEREIN
INCORPORATED, INCLUSIVE OF ALL EXHIBITS TO THIS AGREEMENT, INCLUDING POST
CLOSING DOCUMENTS OR ACTIONS AND IT IS AGREED TO BY THE PARTIES HERETO THAT AS
SUCH THEY ARE AN INTEGRAL PART HEREOF, AND SHALL REMAIN AND SURVIVE AS TO THEIR
CONSTRUCTIVE INTENT AND CONTENT PURSUANT AND SUBJECT TO ALL CONDITIONS OF THIS
AGREEMEN, AS CONTAINED HEREIN, TO SUBSTANTIATE THE VALIDITY OF THIS AGREEMENT AS
TO PRECLUDE ANY ABSENCE OF ANY CONDITIONS VOIDING THIS AGREEMENT.
THEREFORE, IT IS AGREED:
A.
TERMS AND CONDITIONS
1.O1 ACQUIROR WISHES TO, AND SUBSCRIBER / PURCHASER WISHES TO ACQUIRE PRTI'S
6,000,000 CLASS "B" PREFERRED CAPITAL STOCK OF WHICH SHALL CONTAlN VOTING RIGHTS
AND CONVERSION RIGHTS INTO 60,000,000 COMMON SHARES OF PRTI COMMON SHARES AT THE
OPTION OF RMCW INTO OWNERSHIP OF "PRTI" FOR AND IN CONSIDERATION OF 6,000,OO0
COMMON SHARES ISSUED BY SUBSCRIBER TO ACQUIROR, EFFECTIVE THIS DATE, AS PAYMENT
IN FULL.
1.02 PRTI REPRESENTS IT HAS ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ SHARE AUTHORIZED WITH 11,O49,888
COMMON SHARE ISSUED FULLY PAID AND NON ACCESSIBLE. PRTI FURTHER REPRESENTS IT
HAS 10 MlLLION PREFERRED SHARES AUTHORIZED
INITIAL: JM/ MP
PAGE #1 OF 5
WITH 100,000 SHARES ISSUED WHICH SAID ISSUED PREFERRED SHARES OF WHICH [100,000]
WILL BE CANCELLED SUBSEQUENT TO THIS AGREEMENT AND CLOSING.
1.O3 PPTI REPRESENTS THAT AT CLOSING THE TOTAL ASSETS OF $12,700,000 AND TOTAL
LIABILITIES, LIENS, PAYABLES, OBLIGATIONS OR PENDING ACTIONS EITHER PENDING OR
THREATENED, DIRECT, INDIRECT OR CONTINGENT DOES NOT EXCEED THE AMOUNT OF
$15,000. FURTHER, THE STOCKHOLDERS' EQUITY IS 12,685,000, INCLUSIVE OF $733,400
IN TREASURY STOCK. PRTI IS AS OF THE CLOSING OF THIS AGREEMENT SIMULTANEOUSLY
CLOSING ON THE SALE OF ALL OPERATIONS INCLUSIVE OF ALL ASSETS AND LIABILITIES
FOR AND IN CONSIDERATIN OF A NOTE ATTACHED HERETO AS AN EXHIBIT IN THE AMOUNT OF
$12,700,000. IF ANY LIABILITY, DEBT, CAUSE OF ACTION OCCURS AFTER THE DATE OF
CLOSING, IT SHALL BE CURED WITHIN 45 DAYS. IN THE EVENT THAT ANY OF THE
FOREGOING ARE NOT CURED RMCW HAS THE SOLE OPTION TO RESCIND THIS AGREEMENT.
1.04 PRTI BOARD OF DIRECTORS SHALL AND DOES NOMINATE AND ELECT ALL OF RMCW'S
BOARD MEMBERS TO THE BOARD, AND ACCEPTS THE RESIGNATION OF ▇▇▇▇▇ ▇▇▇ OF ALL
OFFICES INCLUDING THAT OF CHAIRAAN, CEO AND PRESIDENT AND ELECTS, HIRES AND
RATIFIES ▇▇▇▇▇▇▇ ▇▇▇▇ TO THESE OFFICES OF PRTI EFFECTIVE ON THIS DATE. THE
ACCEPTANCE OF SAID RMCW DIRECTORS, RESIGNATION OF ▇▇. ▇▇▇ AND ACCEPTANCE BY ▇▇.
▇▇▇▇ ARE ATTACHED HERETO AS AN EXHIBITS.
1.05 THE PARTIES AGREE TO COOPERATE FULLY TO TIMELY FILE ALL NECESSARY ITEMS
PURSUANT TO STATE AND FEDERAL CORPORATE LAW, AND FILINGS WITH THE SECURITIES AND
EXCHANGE COMMISSION INCLUDING AUDITED CONSOLIDATED FINANCIAL STATEMENTS.
1.06 THIS AGREEMENT SHALL BE PURSUANT TO A TAX FREE EXCHANGE, INCLUSIVE OF THE
OPTION OF THE CURRENT RMCW SHAREHOLDERS1 EXCHANGE OF THIER CURRENT COMMON SHARE
HOLDINGS FOR THE PRTI PREFERRED THEN OWNED AND CONVERTIBLE TO PRTI COMMON.
1.07 PURSUANT TO THE CONDITIONS OF THIS AGREEMENT PRTI REPRESENTS THAT IT IS A
FULLY REPORTING COMPANY AND HAS MAINTAINED A CONTINUING REGISTRATION BY FILINGS
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 AND FULLY
REGISTERED UNDER THE SECURITIES ACTS OF 1933 AND 1934, SEC FILE #1-10987 &
#0-19708, AND CUSIP #719131-10-4.
1.08 IT IS ACKNOWLEDGE THAT PRTI HAS IN EXISTENCE AN EFFECTIVE EMPLOYEE BENEFIT
INCENTIVE PLAN, SEC REGISTRATION #33-90484. PURSUANT TO THE TERMS AND CONDITIONS
HEREIN IT IS AGREED THAT THE PLAN SHALL BE INCREASED BY TWENTY FIVE MILLION
SHARES1 IMMEDIATELY AFTER CLOSING.
1. 09 THE PARTIES SPECIFIOALLY MUTUALLY AGREE TO ADHERE TO FULL AND PROPER
CORPORATE GOVERNANCE INCLUSIVE OF FULL RATIFICATION OF EACH RESPECTIVE BOARD OF
DIRECTORS, WHICH ARE ATTACHED HERETO AS EXHIBITS.
INITIAL:JM / MP /
PAGE #2 OF *5*
B.
CONVEYANCE, TRANSFER AND DELIVERY OF CONSIDERATION:
As soon as practical after closing of this Agreement, the Parties shall cause to
be transferred and delivered the total shares of capital stock represented
herein, fully paid, non ascessable and properly issued.
C.
REPRESENTATIONS:
1. "ACQUIROR", represents and warrants that the financial statements
accurately represent the assets and liabilities thereof; that all
proprietary items relating to the business of "PRTI". Further, that no
known undisclosed contingent liabilities or threatened claims exist or are
applicable to "PRTI" that would or could be passed on to SUBSCRIBER {RMCW}.
5. ACQUIROR represents that "PRTI" is not involved directly in any
litigation, dispute1 investigation or proceedings1 constituting materiality
in this transaction.
6. As of the date of this Agreement and transfer of ownership "PRTI", is a
corporation in good standing.
7. "PRTI" represents that it has filed all reports and paid or reserved any
monies currently due, as required by all governmental bodies, inclusive of
all local, state, federal authorities and or as required pursuant to the
business.
8. FURTHER, THE PARTIES TO THIS AGREEMENT HEREIN AGREE THAT THIS
TRANSACTION IS BY MEANS OF PRIVATE SALE AND TREATY, AND WAIVE ANY AND
ALL REFERENCE OR REMEDIES AS TO THE CONSIDERATION PAID BEING CONSTRUED
OR CONFORMING CONSTRUCTIVELY AS A SECURITIES TRANSACTION, [except
under applicable exemptions] AS PROMULGATED BY ANY STATE, PROVINCIAL
OR FEDERAL AGENCY OR LAW.
FURTHER, THE PARTIES HERETO REPRESENT THAT THEY ARE SOPHISTICATED AS
PROSCRIBED AND PURSUANT TO SEC RULES AND REGULATIONS; AND ARE
KNOWLEDGXBLE IN BUSINESS ACQUISITIONS, THE ACCOUNTING PROFESSION AND
HAVE CONCLUDED ALL DUE DILIGENCE PER THIS TRANSACTION.
D.
PROHIBITED ACTS
"The Parties"; hereby agree that the following acts shall not occur after the
closing Date of this Agreement.
1. Declare or pay any dividends or make other distributions of its cash,
assets, or stock, or redeem or purchase any of its shares.
2. Issue any stock or other securities including any of its shares or
issue notes or other evidence of indebtedness not in the usual course
of business.
INITIAL: JR / MP/
PAGE #3 OF *5*
NOTICES:
All notices and other communications hereunder shall be In writing and
shall be deemed to have been given if mailed and or delivered by registered or
certified mail1 postage prepaid.
Any party may change its address by written notice to the other party by
certified Postal
MISCELLANEOUS:
This Agreement, together with the schedules provided for herein:
(a) constitutes the entire Agreement and INCLUDES all relevant prior
agreements, understandings and negotiations, both written and oral,
between the parties with respect to the subject matter hereof;
(b) may be executed in multiple counterparts, each of which shall be
deemed an original and all of which shall constitute one and the same
instrument;
(c) shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, and shall be assignable
by either party without the prior written Consent of the other;
(d) shall be an agreed contract by and between the parties, devoid of any
third party broker or broker fees due or payable.
(f) this Agreement is SOLELY juridically controlled, bound, and
enforceable pursuant to the laws of the State of Colorado.
IN WITNESS WHEREOF, each party hereto, with full board authority, has
caused this Agreement to be executed on and as of the date first above written.
PHOENIX RESOURCES TECHNOLOGIES, INC.
/S/ ▇▇▇▇▇ ▇▇▇
---------------------------
BY: ▇▇▇▇▇ ▇▇▇, PRESIDENT
AGREED AND ATTEST: BY:
ROCKY MOUNTAIN CRYSTAL WATER1 INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------
BY: ▇▇▇▇▇▇▇ ▇▇▇▇, PRESIDENT
AGREED AND ATTEST. BY:
INITIAL: JR / MP/
PAGE #4 OF *5*
INDEX OF EXHIBITS
April 9, 1997
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
Phoenix Resources Techno1ogies, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Right of first Refusal or Repurchase
Dear ▇▇. ▇▇▇▇:
This 1etter is to outline the basis upon which we have agreed that MVP
Holdings, Inc., shall retain a right of first refusal and a right to repurchase
stock issued by MVP Holdings, Inc., (hereinafter "MVP")to Phoenix Resources,
Inc., (hereinafter "Phoenix") as consideration for the purchase of certain
assets by MVP.
You understand that this right of first refusal and right to repurchase
applies only to stock retained by Phoenix and not to any stock distributed to
Phoenix shareholders as a dividend, gift or otherwise.
In the event that Phoenix receives a bona fide offer for the purchase of
any or all of the retained stock Phoenix is to immediately inform MVP of such
offer in and MVP will notify Phoenix of its intent to exercise its right of
first refusal within 48 hours of such notification. Fai1ure to respond within
the 48 hour period shall be the same as informing Phoenix that it will not
exercise its right of first refusal. If MVP chooses to exercise its right of
first refusal it shall have 15 days to either match the offer itself or provide
a purchaser of its own choice to purchase the stock.
In the event that Phoenix decides to offer any or all of the retained stock
for sa1e without a bona fide offer Phoenix shall notify MVP of its intent to
offer stock for sale including the amount of stock it intends to offer and MVP
will notify Phoenix within 48 hours of its intent to exercise its right of first
refusal as to any or all of the stock to be offered for sale by Phoenix. If MVP
notifies Phoenix of it's intent to exercise its right of first refusal the
purchase price shall be the market price at the time Phoenix notified MVP. MVP
shall have 15 days to either price the stock at the price herein specified or
provide a purchaser of its own choice to purchase the stock at the price herein
specified. Either way, payment will be in the form of cash.
Phoenix agrees that it shal1 not hypothecate any of the retained MVP stock
without approval of MVP as the resulting lien would interfere with MVP's right
of first refusal. MVP agrees that it will not arbitrarily withhold its approval
except for good cause shown. If MVP fails to notify Phoenix of its objections
within 48 hours it shall be the same as approval of the transaction.
In the event that Phoenix files for bankruptcy it will notify MVP of its
intent to file at least 48 hours before the filing and MVP may repurchase any
and all retained MVP stock at the market price at the time such notice is given
less 10% if the market price is more than 10% over $3.50. MVP will be allowed to
give a promissory note for the full purchase price. Said promissory note is to
be for a period of 5 years and will be at an interest rate equal to the market
rate at Bank of America on the date said notice is given.
Please sign in the space provided below signifying your agreement and
return the original to this office.
Sincerely yours,
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
MVP Holdinqs, Inc.
AGREED
Phoenix Resources
Technologies, Inc.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------