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EXHIBIT 2.1
2.1 Agreement to Exchange Common Stock with US Gaming & Leisure Corp.
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1. Exchange of Common Stock.........................................................................1
1.01 Exchange .........................................................................1
1.02 Closing ..........................................................................1
1.03 Disposition of Wexford's Current Business Interests and Subsidiaries .............1
2. Representations and Warranties of the USGL Stockholders .........................................2
2.01 Authorization ....................................................................2
2.02 Non-contravention ................................................................2
2.03 Ownership ........................................................................2
2.04 Speculative Nature and Risk ......................................................2
2.05 Federal or State Securities Laws .................................................2
2.06 Acquisition for Own Account ......................................................3
2.07 Limitations on Resale or Transfer ................................................3
3. Representations and Warranties Concerning USGL ..................................................3
3.01 Good Standing ....................................................................3
3.02 Capitalization ...................................................................3
3.03 Financial Statements .............................................................3
3.04 Undisclosed Liabilities ..........................................................4
3.05 Events Subsequent ................................................................4
3.06 Litigation .......................................................................4
3.07 Employment Matters ...............................................................4
3.08 Subsidiaries .....................................................................4
3.09 Tax Matters ......................................................................4
3.10 Properties .......................................................................4
3.11 Adverse Changes ..................................................................4
3.12 Books and Records ................................................................4
3.13 Independent Investigation of Wexford .............................................4
3.14 Disclosure .......................................................................5
4. Representations and Warranties of Wexford .......................................................5
4.01 Organization, Qualification and Corporate Power ..................................5
4.02 Capitalization ...................................................................5
4.03 Non-contravention ................................................................6
4.04 Subsidiaries .....................................................................6
4.05 Common Stock Trading Market ......................................................6
4.06 Financial Statements .............................................................6
4.07 Absence of Certain Changes .......................................................6
4.08 Events Subsequent ................................................................7
4.09 No Undisclosed Liabilities .......................................................7
4.10 Tax Matters ......................................................................7
4.11 Title to Properties ..............................................................8
4.12 Real Property Leases .............................................................8
4.13 Intellectual Property ............................................................8
4.14 Tangible Assets ..................................................................8
4.15 Inventory ........................................................................8
4.16 Litigation .......................................................................8
4.17 Books and Records ................................................................8
4.18 Certain Business Relationships with Wexford ......................................8
4.19 Independent Investigation of USGL ................................................8
4.20 Disclosure .......................................................................8
4.21 Employment Matters ...............................................................8
5. Expiration of Warranties ........................................................................8
5.01 Expiration of Warranties .........................................................8
6. Conduct and Transactions prior to Closing .......................................................9
6.01 New Directors and Officers .......................................................9
6.02 Private Placement ................................................................9
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7. Shareholder Consents ............................................................................9
7.01 Consents..........................................................................9
8. Conditions to Closing ...........................................................................9
8.01 General Conditions ...............................................................9
8.02 Conditions of Obligations of Wexford .............................................9
8.03 Conditions to Obligation of the USGL Stockholders ...............................10
9. Indemnification ................................................................................11
9.01 Intentions of the Parties .......................................................11
9.02 Wexford and Imperial Petroleum, Inc. ............................................12
9.03 Imperial Indemnity ..............................................................12
9.04 USGL ............................................................................12
9.05 USGL Indemnity ..................................................................12
10. Actions at Closing ............................................................................13
10.01 Actions at the Closing ..........................................................13
10.02 Deliveries by Wexford ...........................................................13
10.03 Deliveries by the USGL Stockholders .............................................13
11. Termination ...................................................................................13
11.01 Termination of the Agreement ....................................................13
11.02 Effect of Termination ...........................................................14
12. General .......................................................................................14
12.01 Brokers and Finders .............................................................14
12.02 Press Releases and Public Announcements .........................................14
12.03 Schedules .......................................................................14
12.04 Survival of Covenants, Representations and Warranties ...........................14
12.05 Governing Law ...................................................................14
12.06 Notices .........................................................................14
12.07 No Assignment ...................................................................15
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AGREEMENT TO EXCHANGE STOCK
THIS AGREEMENT TO EXCHANGE STOCK (the "Agreement"), dated as of the 12th
day of May 1999, by and between Wexford Technology,Incorporated, a Utah
corporation ("Wexford"), U.S. Gaming & Leisure, Corp.,a Nevada corporation
("USGL"), and those persons listed on Exhibit "A" attached hereto (such persons
listed on Exhibit "A" attached hereto are sometimes collectively referred to
herein as the "USGL Stockholders") and Imperial Petroleum, Inc. ("Imperial").
W I T N E S S E T H
WHEREAS, the USGL Stockholders and the Board of Directors of USGL and
Wexford deem it advisable and in the best interests of USGL, the USGL
Stockholders and Wexford that Wexford acquire 100% of the issued and outstanding
capital stock of USGL in accordance with the terms of this Agreement in exchange
for (1) 6,000,000 newly-issued shares of Wexford common stock (after adjustment
for a one for six reverse split) referred herein as the "Wexford Shares";
pursuant to this Agreement and applicable provisions of law (such transaction
being hereinafter referred to as the "USGL" Acquisition"); and
WHEREAS, in connection with and as a condition precedent to the USGL
Acquisition, Wexford will sell, assign, convey or otherwise dispose of all of
its current business activities and subsidiaries, such that at the time of the
USGL Acquisition, Wexford shall have no assets and no liabilities; and
WHEREAS, USGL will, at the time of the closing of the USGL/Wexford
Acquisition, have assets exceeding liabilities of at least $4.0 million
including assets and cash which may be acquired after this agreement by sale of
USGL of its shares, merger, or otherwise be held in escrow pending closing; and
WHEREAS, the Board of Directors of Wexford and the Board of Directors of
USGL have approved and adopted this Agreement; and
WHEREAS, the USGL Stockholders own and have the right to sell, transfer and
exchange 100% of the issued and outstanding capital stock of USGL to Wexford in
accordance with the terms of this Agreement and applicable provisions of law;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, provisions and covenants herein contained, the parties hereto hereby
agree as follows:
1. Exchange of Common Stock.
1.01 Exchange. Subject to the terms and conditions herein set forth, at the
time of closing set forth in Section 1.02 hereof, Wexford will issue and
deliver or cause to be issued and delivered to the USGL Stockholders the
following: (1) a total of 6,000,000 shares of Wexford's authorized and
unissued common stock, par value $0.001 per share (the "Wexford Shares")
after giving consideration to a proposed one for five reverse split of the
capital stock of Wexford, in exchange for the conveyance by the USGL
Stockholders to Wexford of a total of 1,000,000 shares of USGL common stock
(the "USGL Shares"), representing 100% of the issued and outstanding
capital stock of USGL.
1.02 Closing. Subject to the terms and provisions of this Agreement, the
closing of the Wexford Acquisition will be at 10:00 a.m. at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ on or before June 30, 1999, or at such earlier
or later date or such other place as shall be mutually agreed upon by
Wexford and the USGL Stockholders, such date and time sometimes being
referred to herein as the "Closing" or "Closing Date."
1.03 Disposition of Wexford's Current Business Interests and Subsidiaries. In
connection with and as a precedent to the USGL Acquisition, Wexford shall
dispose of its current business interests and subsidiaries, including any
pending acquisitions other than the USGL Acquisition, such that at the time
of the USGL Acquisition Wexford shall have no assets and no liabilities. It
is further understood and agreed between USGL and Wexford that Wexford
shall receive releases of liability or satisfactions of indebtedness in
form and content
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satisfactory to USGL from all current creditors including, but not limited
to those creditors. It is expressly understood and agreed between USGL and
Wexford that as part of the sale, assignment, conveyance or other
disposition of the Wexford assets and liabilities that Wexford intends to
enter into agreements with its current directors or affiliated companies in
order to complete the dispositions and that Wexford does not intend to
obtain third party fairness opinions or any other review of the
dispositions.
2. Representations and Warranties of the USGL Stockholders.
Each of the USGL Stockholders severally, and not jointly, represents and
warrants to Wexford that, with respect to the USGL shares owned by such USGL
Stockholder as set forth on Exhibit "A" attached hereto, the statements
contained in this Section 2 are correct and complete as of the date of this
Agreement and except as otherwise provided for herein to the contrary will be
correct and complete as of the Closing Date as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout this
Section 2.
2.01 Authorization. The USGL Stockholder has full power and authority to
execute and deliver this Agreement and to perform his obligations
hereunder. This Agreement constitutes the valid and legally binding
obligation of the USGL Stockholder, enforceable in accordance with its
terms and conditions. The USGL Stockholder need not give any notice to,
make any filing with, or obtain any authorization, consent or approval of
any government, governmental agency, or other person in order to consummate
the transactions contemplated by this Agreement.
2.02 Non-contravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby,
will violate any statute, regulation, rule, judgment, order, decree,
stipulation, injunction, charge or other restriction of any government,
governmental agency or court to which the USGL Stockholder is subject or
conflict with, result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any contract,
lease, sublease, license, sub-license, franchise, permit, indenture,
agreement or mortgage for borrowed money, instrument of indebtedness,
security interest, or other arrangement to which the USGL Stockholder is a
party or by which he is bound or to which any of his assets are subject.
2.03 Ownership. The USGL Stockholder holds of record and owns beneficially the
number of USGL Shares set forth opposite his name as set forth on Exhibit
"A" attached hereto. The USGL Stockholder holds his USGL Shares free and
clear of any restrictions on transfer (other than restrictions under
federal and state securities laws), claims, taxes, security interests,
options, warrants, rights, contracts, calls, commitments, equities and
demands. The USGL Stockholder is not a party to any option, warrant,
contract, call, put or other agreement or commitment providing for the
disposition or acquisition of any capital stock of USGL (other than this
Agreement). The USGL Stockholder is not a party to any voting trust, proxy
or other agreement or understanding with respect to the voting of any
capital stock of USGL.
2.04 Speculative Nature and Risk. The USGL Stockholders each understand and
acknowledge the speculative nature of and substantial risk of loss
associated with an investment in the Wexford Shares which may be subject to
substantial dilution. The USGL Stockholders each represent and warrant that
the Wexford Shares constitute an investment which is suitable and
consistent with their respective financial conditions and that they are
each able to bear the risks of this investment for an indefinite period of
time, which may include the total loss of their investment in Wexford. The
USGL Stockholders each further represent that they have adequate means of
providing for their respective current financial needs and corporate and
personal contingencies and no need for liquidity in their investment in
Wexford and that they each have sufficient financial and business
experience to evaluate the merits and risks of an investment in Wexford.
2.05 Federal or State Securities Laws. The USGL Stockholders each understand
and acknowledge that the Wexford Shares have not been, and will not be,
registered under the Securities Act of 1933, as amended (the "1933 Act"),
or applicable state securities laws and the USGL Stockholders are each
aware that no federal or state agency has made any review, finding or
determination regarding the terms of their acquisition of the Wexford
Shares nor any recommendation or endorsement of the Wexford Shares as an
investment, and the USGL Stockholders must each forego the security, if
any, that such a review would provide.
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2.06 Acquisition for Own Account. The USGL Stockholders each understand and
acknowledge that the Wexford Shares are being offered and sold under
exemptions from registration provided by the 1933 Act and exemptions
provided by applicable state securities laws and the USGL Stockholders each
warrant and represent that the Wexford Shares are being acquired by them
solely for their own account, for investment purposes only, and not with a
view to or for the resale, distribution, subdivision or fractionalization
thereof. The USGL Stockholders each represent and warrant that they have no
agreement or other arrangement, formal or informal, with any person to
sell, transfer or pledge any part of the Wexford Shares or which would
guarantee them any profit or protect them against any loss with respect to
the Wexford Shares. Further, the USGL Stockholders have no plans to enter
into any such agreement or arrangement, and, consequently, they must each
bear the economic risk of an investment in the Wexford Shares for an
indefinite period of time.
2.07 Limitations on Resale or Transfer. The USGL Stockholders each understand
and acknowledge that the Wexford Shares will be "restricted" as defined in
Rule 144 under the Act and that therefore they cannot offer to sell, sell
or otherwise transfer or distribute the Wexford Shares without registration
thereof, which Wexford is not obligated to do, under both the Act and any
applicable state securities laws, or unless an exemption is, in the opinion
of Wexford's counsel, available to them under the Act and any applicable
state securities laws. Such exemption is not now available and it is not
anticipated that any such exemption will become available in the future.
The USGL Stockholders each further understand and acknowledge that the
restrictions on the transfer of the Wexford Shares will be noted on the
books of Wexford and that the stock certificate representing the Wexford
Shares will bear a written legend setting forth the restriction on the
transferability of the Wexford Shares in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE SOLD OR TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION OF THEM UNDER THE SECURITIES ACT OF 1933, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT.
3. Representations and Warranties Concerning USGL.
USGL represents and warrants to Wexford that the statements contained in
this Section 3 are correct and complete as of the date of this Agreement and
will be correct and complete as of the Closing Date except as otherwise provided
for herein to the contrary or as set forth in the disclosure schedule delivered
by USGL to Wexford on the date hereof and initialed by the parties (the "USGL
Disclosure Schedule"). Nothing in the USGL Disclosure Schedule shall be deemed
adequate to disclose an exception to a representation or warranty made herein,
however, unless the USGL Disclosure Schedule identifies the exception with
reasonable particularity and describes the relevant facts in reasonable detail.
Without limiting the generality of the foregoing, the mere listing (or inclusion
of a copy) of a document or other item shall not be deemed adequate to disclose
an exception to a representation or warranty made herein (unless the
representation or warranty has to do with the existence of the document or other
items itself). The USGL Disclosure Schedule will be arranged in paragraphs
corresponding to the lettered and numbered paragraphs contained in this Section
3.
3.01 Good Standing. USGL is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada with full corporate
power to own and operate its properties and to carry on its business as and
in places where such properties are owned, operated and conducted.
3.02 Capitalization. The entire authorized capital stock of USGL consists of
25,000 of common stock, par value $0.00 per share, of which 1,000 shares
are issued and outstanding. All of the issued and outstanding shares of
USGL common stock have been duly authorized, are validly issued, fully
paid, and non-assessable. Notwithstanding anything in this Agreement to the
contrary, USGL may, after this Agreement, issue additional shares for cash
or assets.
3.03 Financial Statements. Attached as Section 3.03 of the USGL Disclosure
Schedule are the following financial statements (collectively, the "USGL
Financial Statements"): (i) unaudited balance sheet of USGL as of December
31, 1998 ("Most Recent USGL Balance sheet"); and (ii) unaudited statements
of operations, retained earnings and cash flows for the year ended December
31, 1998. The USGL Financial Statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
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throughout the periods covered thereby, are correct and complete and are
consistent with the books and records of USGL which books and records are
correct and complete.
3.04 Undisclosed Liabilities. Except to the extent reflected or reserved
against in the Most Recent USGL Balance Sheet on the dates shown, or as
set forth in Section 3.04 of the USGL Disclosure Schedule, as of those
dates, USGL had no liabilities or obligations of any material nature,
whether accrued, absolute, contingent or otherwise and, as of such dates,
knows nor has reasonable grounds to know any basis for the assertion
against USGL of any material liability of any nature or in any amount not
fully reflected or reserved against in the Most Recent USGL Balance Sheet.
3.05 Events Subsequent. Subsequent to the Most Recent USGL Balance Sheet and
except as set forth in Section 3.05 of the USGL Disclosure Schedule, USGL
has not (i) incurred any material liabilities or obligations, absolute or
contingent, except current liabilities and obligations under contracts
entered into in the ordinary course of business; (ii) declared or made any
payment or distribution to stockholders or purchased or redeemed any of
its capital stock; (iii) mortgaged or pledged or subjected to lien, charge
or any other encumbrance, any of its assets, tangible or intangible,
excepting extensions or renewals of liens for liabilities set forth on the
Most Recent USGL Balance Sheet; (iv) sold or transferred any of its
tangible assets or canceled any debts or claims except in each case in the
ordinary course of business; (v) made any capital expenditures other than
in the ordinary course of business; or (vi) incurred any material or
adverse losses or damages, to be involved in strikes, or other labor
disputes.
3.06 Litigation. Except as set forth in Section 3.06 of the USGL Disclosure
Schedule, there are no actions, suits or proceedings at law or in equity
pending or, to the knowledge of USGL, threatened against USGL seeking
damages nor are there any suits threatened or pending before any federal,
state or municipal government or any board, department or agency thereof
involving USGL. To the best of USGL's knowledge, USGL has no pending
violation proceedings relating to state or federal environmental
regulations.
3.07 Employment Matters. USGL is not a party to any employment contract with
any officer, director or other employee. USGL is not bound by a contract
with a labor union, pension or profit share plan or employee benefit plan,
other than as listed in Section 3.07 of the USGL Disclosure Schedule.
3.08 Subsidiaries. USGL has no subsidiaries.
3.09 Tax Matters. USGL has no knowledge or any reasonable grounds to know of
any tax deficiencies which might be asserted against USGL. Since the date
of the USGL Financial Statements, USGL has paid or has provided for
payment of all federal and state withholding and unemployment insurance
taxes and has filed all federal, state and local tax returns and reports
when due.
3.10 Properties. Section 3.10 of the USGL Disclosure Schedule sets forth a true
and complete list of all material leases, contracts, understandings,
commitments, plans or mortgages now in effect, to which USGL is a party,
or under which it is obligated, or which materially affect its properties.
USGL has complied with all material provisions of such leases, contracts,
understandings, commitments, plans and mortgages and is not in material
default with respect to any thereof.
3.11 Adverse Changes. There has been no material adverse change in the
condition, financial or otherwise, of USGL from that set forth in the Most
Recent USGL Balance Sheet. To the best of USGL's knowledge, USGL is not
aware of any facts that might result in any actions, suit or other
proceeding that would result in any adverse change in the financial
condition of USGL. The business, properties and assets reflected in the
USGL Financial Statements have not been materially and adversely affected
as a result of any fire, explosion, earthquake, accident, strike, lockout,
requisition or taking of property by any government or agency thereof,
flood, drought, embargo, riot, activities of armed forces or acts of God
or the public.
3.12 Booksand Records. All of the minute books, Stock certificate books and
stock transfer ledgers of USGL are complete and accurate in all material
respects.
3.13 Independent Investigation of Wexford. USGL confirms that it has received,
reviewed, understands and has fully considered (including, without
limitation, the financial statements contained therein) for purposes of
its
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acquisition of the Wexford Shares, the business prospects and leases of
Wexford. USGL acknowledges that (i) Wexford has limited financial
resources and will need additional sources of capital to implement its
current business plan, the availability of which is uncertain and cannot
be assured, and (ii) the Wexford Shares are a highly speculative
investment with a high degree of risk of loss by USGL of its investment
therein. USGL represents and warrants that in making the decision to
acquire the Wexford Shares, it has relied upon its own independent
investigation of Wexford and the independent investigations by its
representatives, including its own professional legal, tax and business
advisors, and that USGL and its representatives have been given the
opportunity to examine all relevant documents and to ask questions of and
to receive answers from Wexford, or person(s) acting on its behalf,
concerning the terms and conditions of acquisition by USGL of the Wexford
Shares and any other matters concerning an investment in Wexford, and to
obtain any additional information USGL deems necessary to verify the
accuracy of the information provided.
3.14 Disclosure. The representations and warranties contained in this Section 3
do not contain any material untrue statement of a fact or omit to state
any fact necessary in order to make the statements and information
contained in this Section 3 not misleading.
4. Representations and Warranties of Wexford
Wexford represents and warrants to the USGL Stockholders and USGL that the
statements contained in this Section 4 are correct and complete as of the date
of this Agreement and will be correct and complete as of the Closing Date except
as set forth in the disclosure schedule, Schedule 4, delivered by Wexford to the
USGL Stockholders and USGL on the date hereof and initialed by the parties (the
"Wexford Disclosure Schedule"). Nothing in the Wexford Disclosure Schedule shall
be deemed adequate to disclose an exception to a representation or warranty made
herein, however, unless the Wexford Disclosure Schedule identifies the exception
with reasonable particularity and describes the relevant facts in reasonable
detail. Without limiting the generality of the foregoing, the mere listing (or
inclusion of a copy) of a document or other item shall not be deemed adequate to
disclose an exception to a representation or warranty made herein (unless the
representation or warranty has to do with the existence of the document or other
items itself).
The Wexford Disclosure Schedule will be arranged in paragraphs
corresponding to the lettered and numbered paragraphs contained in this Section
4.
4.01 Organization, Qualification and Corporate Power. Wexford is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Utah. Wexford is duly authorized to conduct business and is
in good standing under the laws of each jurisdiction in which the nature
of its business or the ownership or leasing of its properties requires
such qualification. Wexford has full corporate power and authority to
carry on the business in which it is engaged and to own and use the
properties owned and used by it. Section 4.01 of the Wexford Disclosure
Schedule lists the directors and officers of Wexford.
Wexford has made available for inspection by the USGL Stockholders correct
and complete copies of the Certificate of Incorporation and Bylaws of
Wexford (as amended to date). The minute books containing the records of
meetings of the stockholders, the Board of Directors and any committees of
the Board of Directors, the stock certificate books and the stock record
books of Wexford are correct and complete. Wexford is not in default under
or in violation of any provision of its Certificate of Incorporation or
Bylaws.
4.02 Capitalization. The entire authorized capital stock of Wexford consists of
(i) 50,000,000 shares of common stock, par value $0.001 per share, of
which 6,297,799 shares are issued and outstanding; (ii) 5,000,000 shares
of preferred stock, par value $0.001 per share , of which no shares are
issued and outstanding. All of the issued and outstanding shares have been
duly authorized, are validly issued, fully paid, and non-assessable and
are held of record by the respective Wexford shareholders as set forth in
Wexford's stock record books. There are no outstanding or authorized
options, warrants, rights, contracts, calls, puts, rights to subscribe,
conversion rights or other agreements or commitments to which Wexford is a
party or which are binding upon Wexford providing for the issuance,
disposition or acquisition of any of its capital stock. There are no
outstanding or authorized stock appreciation, phantom stock or similar
rights with respect to Wexford. There are no voting trusts, proxies or any
other agreements or understandings with respect to the voting of the
capital stock of Wexford. Upon issuance, the Wexford Shares to be issued
to the USGL
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Stockholders pursuant to this Agreement will be duly authorized, validly
issued, fully paid and non-assessable.
4.03 Non-contravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby,
will (i) violate any statute, regulation, rule, judgment, order, decree,
stipulation, injunction, charge or other restriction of any government,
governmental agency or court to which the Wexford is subject or any
provision of its Certificate of Incorporation or Bylaws of Wexford or (ii)
conflict with, result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel or require any notice under any contract,
lease, sublease, license, sublicense, franchise, permit, indenture,
agreement or mortgage for borrowed money, instrument of indebtedness,
security interest or other arrangement to which Wexford is a party or by
which it is bound or to which any of its assets is subject or result in the
imposition of any security interest upon any of its assets. Wexford is not
required to give any notice to, make any filing with, or obtain any
authorization, consent or approval of any government, governmental agency
or other person in order for Wexford to consummate the transactions
contemplated by this Agreement.
4.04 Subsidiaries. At the time of the USGL Acquisition, Wexford will not own,
directly or indirectly, any capital stock, security, partnership interest
or other interest of any kind in any corporation, partnership, joint
venture, association or other entity.
4.05 Common Stock Trading Market. The common stock of Wexford is eligible for
quotation and is quoted on the National Association of Securities Dealers
("NASD") OTC Bulletin Board under the symbol "WXFD" in accordance with the
applicable rules of the NASD and Securities and Exchange Commission ("SEC")
and is in compliance with applicable NASD and SEC rules for continuing
quotation on the NASD Bulletin Board. The broker-dealers which are
market-makers in the common stock of Wexford are listed in the Wexford
Disclosure Schedule under Section 4.05 ("Market-Makers") . Wexford has
furnished each Market-Maker and each other broker-dealer effecting
transactions in the Company's common stock with all information required by
SEC Rule 15c2-11. Wexford, its officers, directors and affiliates have
fully complied with any and all requests for information by the
Market-Makers and all other broker-dealers, whether or not acting in the
capacity of a market- maker, pursuant to SEC Rule 15c2-11. Any and all
information provided by Wexford to the Market-Makers and all other
broker-dealers, whether or not acting in the capacity of a market-maker,
was, at the time if was furnished, accurate in all material respects, did
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
4.06 Financial Statements. Attached as Section 4.06 of the Wexford Disclosure
Schedule are the following Wexford financial statements (collectively, the
"Wexford Financial Statements") : (i) audited consolidated balance
(referred herein as the "Most Recent Wexford Balance Sheet")and
consolidated statements of income, changes in stockholders' equity,
statements of operations, retained earnings and cash flows for the two
years ended March 31, 1998 and March 31, 1999, and unaudited consolidated
balance sheets, statements of income, change in stockholder's equity, cash
flow as of and for the months of April and May 1999, and unaudited proforma
balance sheet reflecting the disposition of the assets and liabilities of
Wexford at the time of the USGL Acquisition, (referred herein as the
""Proforma Wexford Balance Sheet"). The Wexford Financial Statements have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods covered thereby, are
correct and complete and are consistent with the books and records of
Wexford which books and records are correct and complete. All books and
records of Wexford will be turned over for inspection upon execution of
this agreement.
4.07 Absence of Certain Changes. Except as set forth in Section 4.06 of the
Wexford Disclosure Schedule, there has not been:
(i) Any event that has had or may reasonably be expected to have a Material
Adverse Effect;
(ii) Any declaration, setting aside or payment of any dividend or other
distribution with respect to any shares of capital stock of the Company;
(iii) Any alteration in any material term of any outstanding security of
the Company or any Subsidiary, other than as required by this Agreement;
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(iv) Any (A) incurrence, assumption or guarantee by the Company or any
Subsidiary of any debt for borrowed money, (B) issuance or sale of any
securities convertible into or exchangeable for debt securities of the
Company or any Subsidiary or (C) issuance or sale of options or other
rights to acquire from the Company or any Subsidiary, directly or
indirectly, debt securities of the Company or any Subsidiary or any
securities convertible into or exchangeable for any such debt securities;
(v) any creation or assumption by the Company or any Subsidiary of any
Lien on any material asset lien;
(vi) any making of any loan, advance or capital contribution to or
investment in any person or entity;
(vii) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the business or assets of the Company or
any Subsidiary;
(viii) any transaction or commitment made, or any contract or agreement
entered into, by the Company or any Subsidiary relating to its assets or
business (including the acquisition or disposition of any assets) or any
relinquishment by the Company or any Subsidiary of any contract or other
right;
(ix) any change in any method of accounting or accounting practice by the
Company and Subsidiaries;
(x) any grant of any severance or termination pay to any officer or
employee of the Company or any Subsidiary;
(xi) any labor dispute, or any activity or proceeding by a labor union or
representative thereof to organize any employees of the Company or any
Subsidiary;
(xii) any agreement or arrangement made by the Company or any Subsidiary
to take any action which, if taken prior to the date hereof, would have
made any representation or warranty in this Section untrue or incorrect;
or
(xiii) any repurchase, redemption or other acquisition by the Company or
any Subsidiary of any outstanding shares of capital stock or other
ownership interests in or other securities of the Company or any
Subsidiary.
4.08 Events Subsequent. Subsequent to the Most Recent Wexford Balance Sheet and
except as set forth in Section 4.07 of the Wexford Disclosure Schedule and
except in connection with the sale or other disposition of assets and
liabilities as provided herein, Wexford has not (i) incurred any material
liabilities or obligations, absolute or contingent, except current
liabilities and obligations under contracts entered into in the ordinary
course of business; (ii) declared or made any payment or distribution to
stockholders or purchased or redeemed any of its capital stock; (iii)
mortgaged or pledged or subjected to lien, charge or any other
encumbrance, any of its assets, tangible or intangible, excepting
extensions or renewals of liens for liabilities set forth on the Most
Recent Wexford Balance Sheet; (iv) sold or transferred any of its tangible
assets or canceled any debts or claims except in each case in the ordinary
course of business; (v) made any capital expenditures other than in the
ordinary course of business; or (vi) incurred any material or adverse
losses or damages, to be involved in strikes, or other labor disputes.
4.09 No Undisclosed Liabilities. At the time of the USGL Acquisition, Wexford
will have no material liability of any kind whatsoever (and there is no
condition which could result in any present or future charge, complaint,
action, suit, proceeding, hearing, investigation, claim or demand against
it giving rise to any liability), except for liabilities set forth on the
face of the Wexford Balance Sheet (including any notes thereto).
4.10 Tax Matters. At the time of the USGL Acquisition, Wexford has no knowledge
or any reasonable grounds to know of any tax deficiencies which might be
asserted against Wexford. Since the date of the Wexford Financial
Statements, Wexford has paid or has provided for payment of all federal
and state withholding and unemployment insurance taxes and has filed all
federal, state and local tax returns and reports when due. Wexford shall
provide copies of tax returns for fiscal 1998 and fiscal 1999 at the time
of execution of this Agreement.
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4.11 Title to Properties. At the time of the USGL Acquisition, Wexford will own
no tangible property.
4.12 Real Property Leases. At the time of the USGL Acquisition, Wexford will
not be not a party to any lease or sublease of real property.
4.13 Intellectual Property. At the time of the USGL Acquisition, Wexford will
not own any Intellectual Property or rights.
4.14 Tangible Assets. At the time of the USGL Acquisition, Wexford will not own
or lease any tangible assets of any kind or nature.
4.15 Inventory. Wexford has no inventory of products, raw materials or other
supplies.
4.16 Litigation. Wexford (i) is not and will not on the date of closing be
subject to any unsatisfied judgment, order, decree, stipulation,
injunction or charge, and (ii) is a not presently a party and will not on
the date of closing be a party, and, to the knowledge of any of the
directors and officers (and employees with responsibility for litigation
matters) of Wexford, is not threatened to be made a party to any charge,
complaint, action, suit, proceeding, hearing, or investigation of or in
any court or quasi-judicial or administrative agency of any federal,
state, local or foreign jurisdiction or before any arbitrator.
4.17 Booksand Records. All of the minute books, stock certificate books and
stock transfer ledgers of Wexford are complete and accurate in all
material respects.
4.18 Certain Business Relationships with Wexford. Except as provided in the
Wexford Disclosure Schedule, none of the USGL shareholders and their
affiliates has been involved in any business arrangement or relationship
with Wexford within the past 36 months, and none of the USGL shareholders
and their affiliates owns any property or right, tangible or intangible,
which is used in the business of Wexford.
4.19 Independent Investigation of USGL. Wexford confirms that it has received,
reviewed, understands and has fully considered (including, without
limitation, the financial statements contained therein)for purposes of its
acquisition of the USGL Shares, the business prospects and leases of USGL.
Wexford acknowledges that (i) USGL has limited financial resources and
will need additional sources of capital to implement its current business
plan, the availability of which is uncertain and cannot be assured,
and(ii)the USGL Shares area highly speculative investment with a high
degree of risk of loss by Wexford of its investment therein. Wexford
represents and warrants that in making the decision to acquire the USGL
Shares, it has relied upon its own independent investigation of USGL and
the independent investigations by its representatives, including its own
professional legal, tax and business advisors, and that Wexford and its
representatives have been given the opportunity to examine all relevant
documents and to ask questions of and to receive answers from USGL, or
person(s) acting on its behalf, concerning the terms and conditions of
acquisition by Wexford of the USGL shares and any other matters concerning
an investment in USGL, and to obtain any additional information Wexford
deems necessary to verify the accuracy of the information provided.
4.20 Disclosure. The representations and warranties contained in this Section 4
do not contain any material untrue statement of a fact or omit to state
any fact necessary in order to make the statements and information
contained in this Section 4 not misleading.
4.21 Employment Matters. Wexford is not a party to any employment contract with
any officer, director, or other employee. Wexford is not a party to any
type of employee benefit or retirement plan whatsoever. On the date of
closing, there will be no payments of any nature, due or accrued to
officers, directors, or employees nor any withholding or SSI payments due
or accrued.
5. Expiration of Warranties.
5.01 Expiration of Warranties. All of the representations and warranties of the
parties contained in this Agreement shall be true as of the date of
closing and shall survive the Closing for a period of one year from the
closing.
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6.Conduct and Transactions prior to Closing
6.01 New Directors and Officers. Within seven (7) days following the execution
of this Agreement, the current Board of Directors and the officers of
Wexford shall resign in favor of a newly elected Board comprising
individuals nominated by USGL.
6.02 Private Placement. The newly elected Board shall cause Wexford to conduct
a private placement in escrow of 500,000 shares of its common stock,
resulting in net proceeds of $1,000,000. The proceeds shall be earmarked
for the expansion of the business of USGL and not to pay any Wexford
liabilities.
7. Shareholder Consents.
7.01 Consents. Prior to Closing, USGL, the USGL Stockholders and Wexford shall
each use his or its respective reasonable efforts to obtain the consent or
approval of each person whose consent or approval shall be required in
order to permit USGL, the USGL Stockholders or Wexford, as the case may
be, to consummate the USGL Acquisition.
8. Conditions to Closing.
8.01 General Conditions. The obligations of the parties to effect the Wexford
Acquisition shall be subject to the following conditions:
(a) The Board of Directors and, to the extent required by law, the
shareholders of Wexford, shall have approved this Agreement in accordance
with applicable provisions of state law.
(b) No action, suit or proceeding shall be pending or threatened before
any court or quasi-judicial or administrative agency of any federal,
state, local or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, filing or charge
would (i) prevent consummation of any of the transactions contemplated by
this Agreement, (ii) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation, (iii) affect adversely
the right of Wexford to acquire and own the USGL Shares, (iv) affect
adversely the right of the USGL Stockholders to acquire and own the
Wexford Shares; or (v) affect adversely the right of either Wexford or
USGL to own its assets and to operate its businesses (and no such
injunction, judgment, order, decree, ruling or charge shall be in effect).
(c) All governmental approvals, the absence of which would have a
materially adverse effect on Wexford or USGL, respectively, on a
consolidated basis, after the Closing Date, shall have been received.
8.02 Conditions of Obligations of Wexford. The obligation of Wexford to effect
the Wexford Acquisition and to proceed with the Closing on the Closing
Date shall at all times be subject to the following conditions precedent,
any of which may be waived by Wexford in writing:
(a) (i) the representations and warranties of the USGL Stockholders and
USGL contained herein shall be true and correct in all material respects
at the Closing Date with the same effect as though made at such time, and
(ii) the USGL Stockholders shall have each performed all material
obligations and complied with all material covenants required by this
Agreement to be performed or complied with by him or it prior to the
Closing Date.
(b) The USGL Stockholders shall have each obtained and delivered to
Wexford consents to the transactions contemplated by this Agreement from
the parties to all material contracts, referred to in the USGL Disclosure
Schedule attached hereto in accordance with this Agreement, which require
such consent.
(c) There shall not have occurred (i) any material adverse change, since
the Most Recent USGL Balance Sheet, in the business, properties, results
of operations or financial condition of USGL, or (ii) any loss or damage
to any of the properties or assets (whether or not covered by insurance)
of USGL which will materially affect or impair the ability of USGL to
conduct after the USGL Acquisition the business now being conducted by
USGL.
(d) All statutory requirements for the valid consummation by the USGL
Stockholders of the transactions
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contemplated by this Agreement shall have been fulfilled and all
authorizations, consents and approvals of all federal, state or local
governmental agencies and authorities required to be obtained in order to
permit consummation by the USGL Stockholders of the transactions
contemplated by this Agreement and to permit the business presently
carried on by USGL to continue unimpaired to any material degree
immediately following the Closing Date shall have been obtained. Between
the date of this Agreement and the Closing Date, no governmental agency,
whether federal, state or local, shall have instituted (or threatened to
institute in a writing directed to the USGL Stockholders, USGL, Wexford or
any of their subsidiaries or affiliates) an investigation which is pending
at the Closing Date relating to the USGL Acquisition and between the date
of this Agreement and the Closing Date no action or proceeding shall have
been instituted or, to the knowledge of the USGL Stockholders, shall have
been threatened by any party (public or private) before a court or other
governmental body to restrain or prohibit the transactions contemplated by
this Agreement or to obtain damages in respect thereof,
(e) The stockholders of USGL shall have each acknowledged to Wexford in
writing (i) that the shares of Wexford common stock to be issued to them
pursuant to the Wexford Acquisition will be issued without registration
under the Securities Act of 1933, as amended (the "Securities Act"), or
the securities laws of any state in reliance upon available exemptions
from the registration requirements thereof; (ii) that all such shares of
Wexford common stock will be subject to restrictions on transferability
and may not be offered for sale, sold or otherwise transferred unless
subsequently registered under the Securities Act and all other applicable
securities laws or unless exemptions from the registration requirements of
the Securities Act and all other applicable securities laws are available,
as established to the satisfaction of Wexford, and (iii) the certificates
evidencing such Wexford common stock will bear an appropriate legend
evidencing the above referenced restrictions on transferability.
(f) USGL shall have furnished Wexford with a certificate, dated the
Closing Date, stating that the respective representations and warranties
of USGL contained in Section 3 are true and correct on the Closing Date in
all material respects as if then made.
(g) all papers, documents, agreements and other items required to be
delivered at Closing pursuant to Section 10.03 shall be delivered at
Closing.
8.03 Conditions to Obligation of the USGL Stockholders. The obligation of the
USGL Stockholders to effect the Wexford Acquisition and to proceed with
the Closing on the Closing Date shall at all times be subject to the
following conditions precedent, any of which may be waived by the USGL
Stockholders in writing:
(a) Wexford shall have furnished the USGL Stockholders with certified
copies of resolutions duly adopted by its Board of Directors and, to the
extent required by law, the shareholders of Wexford, authorizing all
necessary and proper corporate action to enable Wexford to comply with
terms of this Agreement and approving the execution, delivery and
performance of this Agreement, including the issuance of the Wexford
Shares, and (ii) an Incumbency Certificate for the appropriate officers of
Wexford.
(b) (i) the representations and warranties of Wexford herein shall be true
in all material respects at the Closing Date with the same effect as
though made at such time; and (ii) Wexford shall have performed all
material obligations and complied with all material covenants required by
this Agreement to be performed or complied with by it prior to the Closing
Date.
(c) Wexford shall have obtained and delivered to the USGL Stockholders
consents to the transactions contemplated by this Agreement from the
parties to all material contracts, referred to in the Wexford Disclosure
Schedule attached hereto in accordance with this Agreement, which require
such consent.
(d) There shall not have occurred (i) any material adverse change since
the Most Recent Wexford Fiscal Quarter in the business, properties,
results of operations or financial condition of Wexford, or (ii) any loss
or damage to any of the properties or assets (whether or not covered by
insurance) of Wexford which will materially affect or impair the ability
of Wexford to conduct, after the Wexford Acquisition, the business now
being conducted by Wexford.
(e) All statutory requirements for the valid consummation by Wexford of
the transactions contemplated by
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this Agreement shall have been fulfilled and all authorizations, consents
and approvals of all federal, state, local and foreign governmental
agencies and authorities required to be obtained in order to permit
consummation by Wexford of the transactions contemplated by this Agreement
shall have been obtained. Between the date of this Agreement and the
Closing Date, no governmental agency, whether federal, state or local,
shall have instituted (or threatened to institute in a writing directed to
the USGL Stockholders, USGL, Wexford or any of their subsidiaries or
affiliates) an investigation which is pending at the Closing Date relating
to the USGL Acquisition and between the date of this Agreement and the
Closing Date no action or proceeding shall have been instituted or, to the
knowledge of Wexford shall have been threatened by any party (public or
private) before a court or other governmental body to restrain or prohibit
the transaction contemplated by this Agreement or to obtain the damages in
respect thereof.
(f) Wexford shall have furnished USGL with a certificate, signed by its
President and Secretary, dated the Closing Date, stating that the
representations and warranties of Wexford contained in Section 4 are true
and correct on the Closing Date in all material respects as if then made.
(g) all papers, documents, agreements and other items required to be
delivered at Closing pursuant to Section 10.02 shall have been delivered
at Closing.
(h) Wexford shall have completed a one for six reverse split of its common
stock and there shall be no more than 1,041,299 shares of common stock
issued and outstanding.
(i) Wexford shall have disposed of its current businesses and subsidiaries
such that at the closing Wexford shall have no assets and no liabilities
and shall have received release of liabilities or satisfaction of
indebtedness in such form and substance as may be acceptable to USGL.
(j) Officers' certificate. Wexford shall have delivered to USGL a
certificate of the Company's president and treasurer, dated the closing
date, certifying in such detail as may be required by USGL the fulfillment
of the conditions of this Agreement.
(k) Opinion of company's counsel. Wexford shall have delivered to USGL an
opinion of the Company's counsel, dated the closing date, that the
Company's corporate existence, good standing, and authorized and issued
stock are as stated, and that, except as may be specified by such counsel,
they do not know or have any reasonable grounds to know of any litigation,
proceeding, or governmental investigation pending or threatened against,
or relating to, the Company, its properties, or business, and that all
necessary and proper corporate actions have been taken to comply and
perform with the terms of this Agreement.
(l) Opinion of USGL's counsel. USGL shall have received from its counsel,
an opinion to the effect that the Company's corporate existence, good
standing, and authorized and issued stock are as stated in paragraph 4.01
and that all actions and approvals with regards to this transaction comply
with the corporate laws of Utah and Nevada.
(m) Transfer Agent Representation. USGL shall have received a certificate
from Wexford's transfer agent that the shares issued are as specified in
paragraph 4.02 and 8.03(h) herein.
(n) Private Placement. Wexford under the direction of its new officers and
directors shall have completed a private placement in escrow of 500,000
shares of its common stock resulting in net proceeds of $1,000,000. The
proceeds shall be earmarked for the expansion of the business of USGL and
not to pay for any Wexford liabilities.
9. Indemnification.
9.01 Intentions of the Parties. It is the intent of the parties that Wexford
and Imperial Petroleum, Inc. shall indemnify and hold harmless USGL for
the operation of Wexford prior to the time that new management is put in
place pursuant to Section 6.01 above, and that USGL shall indemnify and
hold harmless Wexford for the operation of Wexford after the time that new
management is put in place pursuant to Section 6.01 above. It is also the
intent of the parties that any claim for indemnity pursuant to this
section shall be for matters of
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a material nature only that arise within one year from date of closing.
For the purposes of this Agreement, "material" means matters in excess of
$5,000.00.
9.02 Wexford and Imperial Petroleum, Inc. Wexford and Imperial Petroleum, Inc.
("Imperial") shall indemnify and hold harmless USGL at all times after the
date of this Agreement against and in respect of:
(a) All liabilities of Wexford of any nature, whether accrued, absolute,
contingent, or otherwise, existing prior to the election of the new
Board, to the extent not reflected or reserved against in full in
Wexford's Balance Sheet, including, without limitation, any tax
liabilities to the extent not so reflected or reserved against,
accrued in respect of or measured by Wexford's income for any period
prior to the election of the new board or arising out of transactions
entered into, or any state of facts existing prior to the date of this
Agreement;
(b) All liabilities of , or claims against Wexford arising out of the
conduct of Wexford's business prior to the election of the new board;
(c) Any nonpayment on demand, when due of any of Wexford's accounts
receivable, following the date of this Agreement and prior to the
election of the new board;
(d) Any damage or deficiency resulting from any misrepresentation, breach
of warranty, or nonfulfillment of any agreement on the part of Wexford
under this Agreement, or from any misrepresentation in or omission
from any certificate or other instrument furnished or to be furnished
to USGL hereunder;
(e) All actions, suits, proceedings, demands, assessments, judgments,
costs, and expenses incident to any of the foregoing; and
(f) Any costs related to the successful exercise by a Wexford shareholder
of dissenter's right in connection with this transaction.
The indemnity shall expire twelve (12) months from closing unless a claim,
action, or notice is filed pursuant to 9.02(a) - (f).
9.03 Imperial Indemnity. In the event of a claim for indemnity against
Imperial, USGL shall notify Imperial of its claim in writing. Imperial
shall have sixty (60) days to cure the breach. If there is no cure within
that time period, Imperial shall reimburse Wexford or USGL for any payment
made by Wexford or USGL in respect of any liability or claim to which the
indemnity described in Section 9.02 above relates.
9.04 USGL. USGL shall indemnify and hold harmless Wexford at all times after
the date of this Agreement against and in respect of:
(a) All liabilities of, or claims against Wexford arising out of the
conduct of Wexford's business after the date of the election of the
new board;
(b) Any damage or deficiency resulting from any misrepresentation, breach
of warranty, or nonfulfillment of any agreement on the part of USGL
under this Agreement, or from any misrepresentation in or omission
from any certificate or other instrument furnished or to be furnished
to Wexford hereunder; and
(c) All actions, suits, proceedings, demands, assessments, judgments,
costs, and expenses incident to any of the foregoing.
The indemnity shall expire twelve (12) months from closing unless a claim,
action, or notice is filed pursuant to 9.04 (a) - (c).
9.05 USGL Indemnity. In the event of a claim for indemnity against USGL,
Wexford shall notify USGL of its claim in writing. USGL shall have sixty
(60) days to cure the breach. If there is no cure within that time period,
USGL shall reimburse Wexford for any payment made by Wexford in respect of
any liability or claim to which the indemnity described in Section 9.04
above relates.
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10. Actions at Closing.
10.01 Actions at the Closing. At the Closing, Wexford and the USGL Stockholders
will each deliver, or cause to be delivered to the other, the securities
to be exchanged in accordance with Section 1.01 of this Agreement, and
each party shall pay any and all federal and state taxes required to be
paid in connection with the issuance of delivery of their own securities.
Certificates representing the Wexford Shares shall be issued and delivered
as set forth on Exhibit "A" attached hereto. Certificates representing the
USGL Shares shall be duly endorsed by each of the USGL Stockholders for
transfer to Wexford or in blank, or have appropriately executed powers of
attorney attached, and signatures shall be witnesses.
10.02 Deliveries by ▇▇▇▇▇▇▇. ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ will deliver to USGL or the
USGL Stockholders as the case may be:
(a)certificates for the Wexford Shares as provided by Section 1.01 hereof;
(b) certified copies of corporate resolutions and other corporate
proceedings taken by Wexford to authorize the execution, delivery and
performance of this Agreement;
(c) a certificate of Incumbency and signatures of officers of Wexford
dated as of the date of this Agreement; and
(d) all financial books and records as well as corporate books and
records.
10.03 Deliveries by the USGL Stockholders. At Closing, the USGL Stockholders
shall deliver to Wexford:
(a) certificates for the USGL Shares as provided by Section 1.01 hereof;
(b) certified copies of corporate resolutions and other corporate
proceedings taken by USGL to authorize the execution, delivery and
performance of this Agreement and the appointment of ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
on behalf of Wexford as a member of the Board of Directors of USGL;(c)
certificate of Incumbency and signatures of the Board of Directors of USGL
dated as of the date of this Agreement;
11. Termination.
11.01 Termination of the Agreement. The parties may terminate this Agreement as
provided below:
(a) Wexford, USGL and the USGL Stockholders may terminate this Agreement
by mutual written consent at any time prior to the Closing;
(b) Either party may terminate this Agreement by giving written notice to
the other party on or before the Closing Date if the either party is not
satisfied with the results of their continuing business, legal and
accounting due diligence regarding each other;
(c) USGL and/or the USGL Stockholders may terminate this Agreement by
giving written notice to Wexford at any time prior to the Closing (i) in
the event Wexford has breached any representation, warranty or covenant
contained in this Agreement in any material respect, and the breach has
continued without cure for a period of 10 days after the notice of breach,
or (ii) if the Closing shall not have occurred on or before July 31, 1999,
or such later date as may be agreed to by USGL, the USGL Stockholders and
Wexford, in writing, by reason of the failure of any condition precedent
under Section 8.03 hereof (unless the failure results primarily from USGL
or the USGL Stockholders themselves breaching any representation, warranty
or covenant contained in this Agreement); and
(d) Wexford may terminate this Agreement by giving written notice to USGL
and the USGL Stockholders at any time prior to the Closing (i) in the
event USGL or any USGL Stockholder has breached any representation,
warranty or covenant contained in this Agreement in any material respect,
Wexford has notified USGL and
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the USGL Stockholders of the breach and the breach has continued without
cure for a period of 10 days after the notice of breach or (ii) if the
Closing shall not have occurred on or before July 31, 1999, or such later
date as may be agreed to by USGL, the USGL Stockholders and Wexford in
writing, by reason of the failure of any condition precedent under Section
8.02 hereof (unless the failure results primarily from Wexford itself
breaching any representation, warranty or covenant contained in this
Agreement).
11.02 Effect of Termination. If either USGL and/or the USGL Stockholders or
Wexford terminates this Agreement pursuant to Section 11.01 above,
(a) all rights and obligations of the parties hereunder shall terminate
without any liability of any party to any other party;
(b) the Board of Directors of Wexford that was elected pursuant to Section
6.01 above shall resign in favor of Wexford's former directors; and
(c) the private offering conducted pursuant to Section 6.02 above shall be
terminated and any escrowed stock subscriptions shall be returned to
investors.
12. General.
12.01 Brokers and Finders. Each Party hereto represents that no broker, agent,
finder or other party has been retained by either Party, and no brokerage
or finder's fees or agent's commissions or other like payment has been
agreed to be paid by him or it in connection with this Agreement or on
account of the transactions contemplated by this Agreement. Each Party
agrees to indemnify and hold harmless the other parties from and against
any and every claim arising by breach of the aforesaid representation and
warranty and all costs and expenses, legal or otherwise, which any such
party may incur as the result of any such claim.
12.02 Press Releases and Public Announcements. Neither USGL nor Wexford shall
issue any press release or make any public announcement prior to the
election of the new Board of Directors. Thereafter, neither party shall
issue any press release or make any public announcement relating to the
subject matter of this Agreement without the prior written approval of the
other Parties.
12.03 Schedules. The USGL and Wexford Disclosure Schedules delivered pursuant to
the terms of this Agreement shall be bound together, initialed by Wexford
and USGL and deemed attached hereto and made a part hereof.
12.04 Survival of Covenants, Representations and Warranties. Except as otherwise
specifically provided, the covenants, representations and warranties
contained herein shall expire and be terminated and extinguished at the
Closing Date.
12.05 Governing Law. This Agreement and the legal relations between the parties
shall be governed by and construed in accordance with the laws of the
State of Utah.
12.06 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if sent by registered mail or
certified mail, postage prepaid if addressed as follows:
If to Wexford:
Wexford Technology, Inc.
▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
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If to USGL and USGL Stockholders:
U.S. Gaming & Leisure, Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
12.07 No Assignment. This Agreement may not be assigned by operation of law or
otherwise, without the express written consent of each party hereto which
consent will not be unreasonably withheld except that USGL may assign this
Agreement to a wholly owned subsidiary or an affiliate.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
[SIGNATURE PAGE FOLLOWS]
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WEXFORD TECHNOLOGY, INC. Witness:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
IMPERIAL PETROLEUM, INC. Witness:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ------------------------------------
As to Paragraph 9 Only
U.S. GAMING & LEISURE, CORP. Witness:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
THE USGL SHAREHOLDERS Witness:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:
-------------------------------- ------------------------------------
By:
-------------------------------- ------------------------------------
By:
-------------------------------- ------------------------------------
16
20
EXHIBIT "A"
NAME # OF # OF
OF SHAREHOLDER USGL SHARES WEXFORD SHARES
-------------- ----------- --------------
17