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Exhibit 2.1
ASSET EXCHANGE AGREEMENT
This Asset Exchange Agreement is entered into as of October 29, 1996
between NORTH AMERICAN RESORTS, INC., a Colorado Corporation, ("North
American") and CHANNEL AMERICA BROADCASTING, INC., former EVRO Corporation, a
Florida Corporation, ("Channel America").
WITNESSETH
WHEREAS, North American owns certain items of artwork which are listed
on Exhibit A attached hereto (the "Artwork");
WHEREAS, North American would like to sell the Artwork and Channel
America would like to acquire the Artwork; and
WHEREAS, North American would like to diversify its holdings by
acquiring a stock interest in Channel America.
NOW THEREFORE, in consideration of the premises, the sum of One Dollar
($1.00) each to the other in hand paid, the receipt of which is hereby
acknowledged, and terms, conditions, covenants, and agreements hereinafter set
forth, the parties hereto agree as follows:
1. Sale of Artwork. North American agrees to sell, convey,
transfer, assign, and deliver to Channel America, and Channel America agrees to
purchase, acquire and accept the Artwork free and clear of all liens.
2. Purchase Price. The total purchase price for the Artwork being
conveyed is One Million Dollars ($1,000,000.00)
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subject to downward adjustment as provided below ("Purchase Price"). If the
Artwork appraises pursuant to subparagraph 11(b) below for less than One Million
Dollars ($1,000,000.00) then the Purchase Price shall be reduced to the
appraised value of the Artwork.
3. Payment of Purchase Price. The Purchase Price shall be paid by
Channel America issuing to North American that number of shares of Series C
Convertible Preferred Stock, no par value with a stated value of Ten Dollars
($10.00) ("Preferred Shares") of Channel America, which has an equivalent value
to the Purchase Price. The number of Preferred Shares constituting full
purchase price will be determined in accordance with the following formula:
Purchase Price/10 (stated value) x 50% (conversion rate to common
stock) = # of Preferred Shares to be issued
For example, if the Purchase Price is $1,000,000, then 50,000 Preferred
Shares would be issued, calculated as follows:
1,000,000/10 x 50% = 50,000 Preferred Shares
4. Delivery of Preferred Shares. At the Closing, Channel America
shall deliver to North American duly issued stock certificate(s) representing
that number of Preferred Shares calculated pursuant to Paragraph 3 above, which
certificate(s) shall be delivered free and clear of all encumbrances, liens,
security interests and restrictions (other than the restrictions imposed by this
Agreement and other than a standard Securities Act legend which will appear on
all such certificates). The Preferred Shares of
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Channel America which will be issued to North American, as well as common stock
of Channel America which will be issued upon conversion of the Preferred Shares
in accordance with Paragraph 5 below (the "Common Shares"), as provided in this
Agreement:
(a) have not been, and with respect to the Common Shares may
not have been registered under the Securities Act of 1933, as amended ("1933
Act") or under any state securities laws ("Blue Sky Laws");
(b) will be issued by Channel America in reliance upon
exemptions from registration under the 1933 Act and applicable Blue Sky Laws;
(c) may not be resold by the holder thereof unless such
shares are registered under the 1933 Act and any applicable Blue Sky Law unless
exemptions from such registration requirements are available; and
(d) will be represented by a certificate(s) which contains
the following or a similar legend:
The securities represented by this certificate may not be
offered for sale, sold or otherwise transferred except pursuant
to an effective registration statement under the Securities Act
of 1933 (the "Act"), or pursuant to an exemption from
registration under the Act, the availability of which is to be
established to the satisfaction of the Company.
5. Conversion of Preferred Shares. The Preferred Shares shall be
convertible at the holder's option into Common Shares of
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Channel America which will have the registration rights provided for in
Paragraph 6 below. The Preferred Shares shall convert into Common Shares in
accordance with the terms of the "Amended Certificate of Designation,
Preferences, Rights and Limitation of Series C Convertible Preferred Stock, No
Par Value of EVRO Corporation" attached hereto as Exhibit B.
For example purposes, if the current market rate for common stock of
Channel America was $8.00 and 50,000 Preferred Shares were converted, the
holder would receive 125,000 Common Shares calculated as follows:
# of Preferred Shares being converted/Conversion Price (which is
one-half market value for common stock) x 10 = # of Common Shares
50,000/4.00 x 10 = 125,000 Common Shares
The holder shall not be required to convert the Preferred Shares.
6. Registration Requirements.
(a) Commitment to Register Within One Year. Channel
America will: (i) upon North American's request, within one year from the date
of this Agreement, at its expense, prepare and file with the Securities and
Exchange Commission a Registration Statement on form S-1 under the 1933 Act
relating to the resale to the public of the Common Shares held by North
American; (ii) use its best efforts to have such Registration Statement become
effective as promptly as possible; and (iii) furnish North American with copies
of such Registration Statement and any prospectus forming a part
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thereof as may be necessary in connection with the resale or offering to the
public of the Common Shares covered thereby.
(b) "Piggyback" Registration Rights. In addition to the
registration rights provided above, Channel America will advise North American,
at least ten days prior to the filing of any Registration Statement for shares
of Channel America of the same class as the Common Shares held by North
American, and at North American's request, will include at Channel America's
expense in such Registration Statement, North American's Common Shares;
provided, however, in the event that North American shall elect not to include
its Common Shares in such Registration Statement, Channel America will have no
further obligation with respect to the filing of a Registration Statement with
respect to the resale and offering to the public of the Common Shares held by
North American either pursuant to subparagraph (a) above or otherwise.
7. Delivery of Artwork. Channel America will take constructive
delivery of the Artwork by accepting delivery of the keys to the warehouse in
Minnesota where the Artwork is currently located.
8. Representations and Warranties of North American. North
American represents and warrants to Channel America with respect to the Artwork
that:
(a) North American has good and marketable title to the
Artwork being conveyed hereunder, and has the right to and will convey the same
to Channel America free and clear of all liens and encumbrances.
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(b) North American has entered into no other contract to
sell, assign or otherwise convey the Artwork or any portion thereof or interest
therein.
(c) The execution and delivery of this Agreement and the
conveyance herein contemplated have been, or as of Closing shall have been, duly
authorized by the Board of Directors of North American.
(d) The execution and delivery of this Agreement and the
conveyance herein contemplated, do not require shareholder approval.
(e) The execution and delivery of this Agreement, the
consummation of the transactions herein contemplated and the compliance and/or
fulfillment of the terms and provisions hereof, will not violate or conflict
with any provisions of North American's Certificate of Incorporation, its Bylaws
or any Resolution heretofore adopted and still effective, or result in breach of
or constitute a default under the terms, conditions, or provisions of any
agreement or instrument of which North American is a party.
(f) No representation or warranty made herein by North
American nor any statement or certificate given or to be given to Channel
America pursuant hereto or with respect to the transactions contemplated hereby,
contains or will contain any intentionally untrue statement of material fact or
intentionally omit or will intentionally omit to state a material fact necessary
to make the statements contained herein or therein not misleading.
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(g) North American has no present intention to dispose of
the Preferred Shares being acquired hereunder.
(h) The foregoing representations and warranties are made by
North American with the knowledge and expectation that Channel America is
placing complete reliance thereon and all representations and warranties made by
North American shall survive Closing.
9. Representations and Warranty of Channel America. Channel
America represents and warrants to North American with respect to the Preferred
Shares of Channel America being issued that:
(a) The execution and delivery of this Agreement and the
issuance of the Preferred Shares herein contemplated have been, or as of Closing
shall have been, duly authorized by the Board of Directors of Channel America.
(b) The execution and delivery of this Agreement and the
issuance of the Preferred Shares herein contemplated do not require shareholder
approval.
(c) The execution and delivery of this Agreement, the
consummation of the transactions herein contemplated and the compliance and/or
fulfillment of the terms and provisions hereof, will not violate or conflict
with any provisions of Channel America's Certificate of Incorporation, its
Bylaws or any Resolution heretofore adopted and still effective, or result in
breach of or constitute a default under the terms, conditions, or provisions of
any agreement or instrument of which Channel America is a party.
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(d) No representation or warranty made herein by Channel
America nor any statement or certificate given or to be given to North American
pursuant hereto or with respect to the transactions contemplated hereby,
contains or will contain any intentionally untrue statement of material fact or
intentionally omit or will intentionally omit to state a material fact necessary
to make the statements contained herein or therein not misleading.
10. Relationship with Affiliated Persons. Both parties to this
transaction acknowledge that Max P. Cawal is an officer and director of both
Channel America and North American.
11. Conditions Precedent to Channel America's Closing Hereunder. All
obligations of Channel America under this Agreement are subject to fulfillment
prior to or as of Closing of each of the following conditions:
(a) North American shall have performed and complied with
all agreements and conditions required by this Agreement to be performed and
complied with by it prior to Closing.
(b) North American will have delivered to Channel America an
appraisal or valuation of the Artwork prepared by an independent appraiser
approved by Channel America and in form and content satisfactory to Channel
America which sets forth and certifies to the value of the Artwork.
(c) Notwithstanding anything herein to the contrary, the
contingency set forth in (a) and (b) above must be waived by Channel America or
satisfied within three (3) days of the signing of
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this Agreement, otherwise Channel America shall have the right to terminate
this Agreement upon written notice to North American.
12. Conditions Precedent to North America's Closing Hereunder. All
obligations of North American under this Agreement are subject to Channel
America having performed and complied with all agreements and conditions
required by this Agreement to be performed and complied with by it prior to
Closing.
13. Closing Date. For all purposes of this Agreement, the "Closing
Date" shall be on or before the 29th day of October, 1996 at the offices of
Channel America or at such other place as the parties hereto shall mutually
agree. At Closing, the conveyance, transfer, assignment and delivery of the
Artwork shall be effected by exchange of the Preferred Shares for a Bill of
Sale, the keys referenced in Paragraph 7 above, and related documentation
conveying ownership of the Artwork.
14. Notices. All notices, demands and requests required or
permitted to be given hereunder shall be deemed duly given if mailed by
certified or registered mail, postage prepaid, and pending designation of
another address, addressed as follows:
North American Resorts, Inc.
315 E. Robinson Street #190
Orlando, Florida 32801
Channel America Broadcasting, Inc.
1509 S. Florida Avenue, Suite 3
Lakeland, Florida 33803-2293
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With a copy to:
Stephen H. Cohen, Esq.
Scolaro, Shulman, Cohen,
Lawler & Burstein, P.C.
90 Presidential Plaza
Syracuse, New York 13202
15. Additional Documents. The parties hereto agree that they will
at any time, and from time to time, after the Closing and upon the request of
the other, execute, acknowledge, and deliver or cause to be executed,
acknowledged and delivered further assignments, transfers, conveyances, powers
of attorney, acts, and assurances as may be reasonably required in accordance
with this Agreement to more fully effect the transactions contemplated by this
Agreement.
16. Survival of Warranties. Each of the covenants, representations
and warranties of each of the parties to this Agreement, as contained herein,
shall be true and correct as of the Closing Date as though such covenants,
representations and warranties were made at and as of such time, except for
changes occurring in the ordinary course of business. Each of the parties shall
on or before the Closing Date perform all of their undertakings herein in
accordance with the terms hereof.
17. Entire Agreement and Counterparts. This Agreement contains the
entire Agreement between the parties, superseding in all respects any and all
prior oral or written agreements or understandings, and shall be amended or
modified only by written instruments signed by both parties hereto. This
Agreement may be
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executed in counterparts and by facsimile signature, each of which shall be
deemed an original and all of which, taken together, shall constitute one
Agreement.
18. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
19. Governing Law. This Agreement shall be governed by, construed
and interpreted in accordance with the internal laws of the State of Florida
without regard to the principals of conflicts of law.
IN WITNESS WHEREOF, the parties have hereto set their hands and seals
the day and date first above written.
NORTH AMERICAN RESORTS, INC.
By: /s/ DONALD R. MASTROPIETRO
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Donald Mastropietro, President
CHANNEL AMERICA BROADCASTING, INC.
By: /s/ THOMAS L. JENSEN
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Thomas L. Jensen, Chief Executive Office
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