UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 8, 2003
GOLD BOND RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Washington 91-0757753
(State or other Jurisdiction (IRS Employer
of incorporation) Identification No.)
10701 Corporate Drive, Suite 293, Stafford, TX 77477
(Address of principal executive offices)
Registrant's telephone number, including area code 281-240-1787
1511 South Riegel Court, Spokane, WA 99212
(Former name or former address, if changed since last report)
Item 1. Changes in Control of Registrant.
On January 8, 2003, we (also referred to as the "Company" and/or "Gold
Bond Resources, Inc.") acquired EnerTeck Chemical Corporation ("EnerTeck), a
Texas company, pursuant to a share exchange agreement dated December 30, 2002,
by and among the Company, EnerTeck and each of the shareholders of EnerTeck.
Under the terms of the securities exchange agreement, the shareholders of
EnerTeck agreed to transfer all of the issued and outstanding shares of common
stock of EnerTeck to the Company in exchange for an aggregate of 50,000,000
shares of common stock, or approximately 75% of the issued and outstanding
shares, of the Company.
The table below sets forth the ownership of each director and officer of
the company, all directors and officers of the company as a group, and each
beneficial owner of greater than 5% of the outstanding shares of the company as
of January 8, 2003.
Name and Address of . . . . . . Amount and Nature
Beneficial Owner. . . . . . . . Title of Class of Beneficial Ownership Percent of Class
- ------------------------------- ----------------------------------------------- ----------------
Dwaine Reese (1) (2) Common 25,500,000 38.39%
206 Country Creek Way
Richmond, Texas 77469
Kenneth S. O'Neill (1). . . . . NONE
2001 Holcombe Boulevard
Houston, Texas 77030
James J. Mullen (1) NONE
802 Campodolcino Drive
Corpus Christi, Texas 78414
Tom Himsel. . . . . . . . . . . Common 5,750,000 8.66%
2177 Willow Lake Drive
Greenwood, Indiana 46143
Tom Kaminski. . . . . . . . . . Common 4,500,000 6.78%
2158 Jackson Street
Portage, Indiana 46368-2341
Ken Jackson . . . . . . . . . . Common 4,750,000 7.15%
12818 Chriswood
Cypress, Texas 77429
Gary Aman . . . . . . . . . . . Common 4,500,000 6.78%
6119 Apple Valley Lane
Houston, Texas 77069
Stan Crow . . . . . . . . . . . Common 5,000,000 7.53%
1410 Andover
Livingston, Texas 77351
Parrish Brian & Co., Inc.. . . Common 5,000,000 7.53%
75 Oak Street
Norwood, New Jersey
All directors and executive
officers as a group (3 persons) Common 25,500,000 38.39%
(1) Officer and Director.
(2) We have also agreed to issue to this shareholder an additional
10,000,000 shares in consideration of him waiving sales commissions that would
be due to him for our future EnerBurn(TM) sales.
In addition, we have orally agreed to issue an option to Waxtech
International, Inc. for it to purchase up to 1,750,000 shares at a price per
share equal to the 52-week low bid price prior to the effective date of the
share exchange agreement which is January 9, 2003. We have also orally agreed to
issue a warrant to Parrish Brian Partners, Inc. (an affiliate of Parrish Brian &
Co., Inc.) for it to purchase up to 15,000,000 shares at $.10 per share.
Finally, we are presently conducting a private placement of up to 10,000,000
shares of our common stock.
If all of the shares are issued through the exercise of the aforementioned
warrants, the issuance of shares to Dwaine Reese for cancellation of his future
commissions and the completion of the entire private placement, we will have a
total of 103,169,999 shares outstanding. Currently, we only have 100,000,000
shares authorized. However, the share exchange agreement calls for a one for 10
reverse common stock split to be effected within a reasonable time of closing of
the transaction. In connection with this reverse, we will amend our certificate
of incorporation. Accordingly, the expected shares to be outstanding after this
split will be 10,317,000.
As a result of the share exchange transaction, we acquired the business
of EnerTeck, which is in the business of marketing and distributing a line of
diesel fuel additives trademarked under the name EnerBurn(TM).
After the closing, our previous officers and directors resigned and
simultaneously therewith new officers and directors have been appointed.
Identification of Officers and Directors are as follows:
Dwaine Reese. He is the Chairman of the Board, our Chief Operating Officer and
- -------------
Treasurer. From approximately 1975 to 2000, Mr. Reese held various executive,
management, sales and marketing positions in the refining and specialty chemical
fields with Nalco Chemical Corporation and later Nalco/Exxon Energy Chemicals,
LP. In 2000, he founded EnerTeck Chemical Corporation, and has been its chief
executive and operating officer since that time. Mr. Reese has been and will
continue to devote his full-time to our business.
Kenneth S. O'Neill. Mr. O'Neill is our President and a Director. He has spent
- --------------------
over 30 years in the petrochemical industry, including approximately 27 years in
- --
varying managerial positions with Shell Chemical Company. Since 1997, Mr.
O'Neill has been an executive with Allan F. Dow & Associates, a management
consulting firm in the specialty chemical industry. Mr. O'Neill will continue
this relationship with the consulting firm, until such time that we will be able
to compensate him at a level commensurate with full-time employment. Until such
time, Mr. O'Neill will devote as much of his time to our business as he believes
is necessary for us to be successful.
James J. Mullen. Mr. Mullen is our Executive Vice President - General Counsel,
- -----------------
Secretary and a Director. He has over 40 years of legal experience primarily in
the areas of intellectual property rights (patents and trademarks), trade
regulation, business law, environmental matters, product liability and
litigation. Since 1992, Mr. Mullen has been General Patent Counsel -Intellectual
Property for Celanese Ltd. Mr. Mullen will continue this relationship with
Celanese, until such time that we will be able to compensate him at a level
commensurate with full-time employment. Until such time, Mr. Mullen will devote
as much of his time to our business as he believes is necessary for us to be
successful.
Item 2. Acquisition or Disposition of Assets
As a result of the transaction described in Item 1 above, the Company
acquired all of the issued and outstanding shares of common stock of EnerTeck.
EnerTeck is a privately held company that is in the business of marketing and
distributing a line of diesel fuel additive products trademarked under the name
of EnerBurn(TM).
Item 5. Other Events
(a) On January 89, 2003 our Articles of Exchange were filed with the
Secretary of State of the State of Washington and the State of Texas.
(b) On December 17, 2002, we filed a Form S-8 Registration Statement with
the SEC in connection with consulting services provided and to be provided to
us.
Item 7. Financial Statement and Exhibits.
(a) Financial Statements of Business Acquired
To be filed by amendment to this Form 8-K within 60 days from the
date hereof.
(b) Pro Forma Financial Information
To be filed by amendment to this Form 8-K within 60 days from the
date hereof.
(c) Exhibit
10.1 Share Exchange Agreement by and among Gold Bond Resources, Inc., EnerTeck
Chemical Corporation and each of the shareholders of EnerTeck dated December 30,
2002.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GOLD BOND RESOURCES, INC.
Date: January 23, 2003
By: /s/ Dwaine Reese
Name: Dwaine Reese
Title: Chairman of the Board and
Chief Operating Officer
EXHIBIT 10.1
SHARE EXCHANGE AGREEMENT
This Share Exchange Agreement (the "Agreement") is made and entered into
this 30th day of December, 2002, by and between Gold Bond Resources, Inc., a
Washington corporation ("Gold Bond") and EnerTeck Chemical Corp., a Texas
corporation ("EnerTeck").
RECITALS
A. Gold Bond is a corporation organized and existing under the laws of
the State of Washington and has authorized capital consisting of 100,000,000
shares of $.001par value common stock ("Gold Bond Common Stock"), of which
9,419,999 shares are issued and outstanding.
B. EnerTeck is a corporation organized and existing under the laws of
the State of Texas and has authorized capital stock consisting of 1,000,000
shares of no par value common stock ("EnerTeck Common Stock"), of which
1,000,000 shares are issued and outstanding.
C. The Boards of Directors of Gold Bond and EnerTeck deem it in the
best interests of the shareholders of their respective corporations that Gold
Bond will acquire all of the outstanding shares of EnerTeck Common Stock in
exchange for authorized but as yet unissued shares of Gold Bond Common Stock
(the "Share Exchange") in accordance with the following terms:
ARTICLE 1
Share Exchange
1.1 Exchange Ratio. Each outstanding share of EnerTeck Common Stock
shall be surrendered in exchange for fifty (50) shares of authorized but as yet
unissued Gold Bond Common Stock.
1.2 Treasury Shares. Any shares of EnerTeck Common Stock held in
the treasury of EnerTeck on the Effective Date will not be deemed to be issued
or outstanding for purposes of the Share Exchange. Such shares shall
automatically be cancelled, and no shares of the Gold Bond Common Stock will be
issued in respect of such treasury shares.
1.3 Fractional Shares. No fractional shares of Gold Bond Common Stock
will be issued. In lieu of any fractional share, Gold Bond shall pay the
surrendering holder of EnerTeck Common Stock cash equal to the value of the
fractional share, based upon the book value of one whole share of EnerTeck
Common Stock on the Effective Date.
Exchange of Shares. On the Effective Date, each holder of one or more
shares of EnerTeck Common Stock shall surrender any and all certificates
representing such shares to Gold Bond, or its appointed agent, in such manner as
Gold Bond shall reasonably and legally require. Upon receipt of any such
certificate, Gold Bond will issue in exchange therefore a certificate
representing the number of shares of Gold Bond Common Stock the surrendering
EnerTeck shareholder is entitled to receive pursuant to the provisions of
Article 1.1, above.
ARTICLE 2
Representations and Warranties Regarding Gold Bond
Gold Bond hereby represents and warrants to EnerTeck as follows:
2.1 Organization and Qualification. Gold Bond is a corporation duly
organized, validly existing and in good standing under the laws of Washington
and has the requisite corporate power and authority to carry on its business as
it is now being conducted. Gold Bond is duly qualified to do business and is in
good standing in each jurisdiction in which the character of its properties,
owned or leased, or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified or in good standing would
not have a material adverse effect on the business, financial condition or
results of operations of Gold Bond taken as a whole (a "Material Adverse
Effect"). Copies of the Articles of Incorporation and By-Laws of Gold Bond
heretofore delivered to EnerTeck are accurate and complete as of the date
hereof.
2.2 Capitalization. As of the date hereof, the authorized capital
stock of Gold Bond consists of 100,000,000 shares of $0.001 par value common
stock, of which 9,419,999 Shares are issued and outstanding. Except as set forth
in Schedule 2.2, there are no options, warrants, puts, calls or other rights,
agreements or commitments of any character whatsoever requiring the issuance,
sale, transfer or repurchase by Gold Bond of any shares of capital stock of Gold
Bond or any securities convertible into or exchangeable or exercisable for, or
otherwise evidencing a right to acquire, any shares of capital stock of Gold
Bond. All of the outstanding shares of capital stock of Gold Bond have been duly
authorized, validly issued and are fully paid and nonassessable and are not
subject to, nor were they issued in violation of, any preemptive rights.
2.3 Authority. Gold Bond has the requisite corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by Gold Bond's
Board of Directors, no other corporate proceedings on the part of Gold Bond are
necessary to authorize this Agreement and the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Gold Bond and constitutes
the valid and legally binding obligation of Gold Bond enforceable against Gold
Bond in accordance with its terms.
2.4 Financial Statements. The audited financial statements of Gold
Bond for the fiscal years ended 2001 and 2002, which have been previously
delivered to EnerTeck, present fairly in all material respects the financial
position, results of operations and changes in cash flow of Gold Bond as of the
dates thereof and for the periods indicated therein in conformity with generally
accepted accounting principles (except as otherwise indicated in such financial
statements and the notes thereto) on a basis consistent with prior periods.
Except as and to the extent set forth on the balance sheet of Gold Bond, at the
date thereof, Gold Bond did not have any liabilities or obligations, direct, or
indirect, whether accrued, absolute, contingent or otherwise ("Liabilities"),
except for Liabilities that will not have a Material Adverse Effect and that
will not have a material adverse effect on the ability of Gold Bond to
consummate the transactions contemplated hereby.
2.5 Absence of Certain Changes. Except as contemplated herein or set
forth on Schedule 2.5, since July 31, 2002, there has not occurred (i) any
material adverse change in the business, financial condition or results of
operations of Gold Bond or (ii) any loss or damage to any of the properties of
Gold Bond (whether or not covered by insurance) which has had or would be likely
to have a Material Adverse Effect. Except as set forth on Schedule 2.5, Gold
Bond has not since July 31, 2002:
(a) paid or declared any dividends or other distributions upon its stock or
redeemed, purchased or otherwise acquired any of its shares of stock, except as
specifically contemplated by this Agreement;
(b) sold, assigned, transferred, mortgaged, pledged, subjected to any
material lien, adverse claim or other encumbrance or suffered any material lien,
adverse claim or other encumbrance on any of its material tangible or intangible
assets, including material copyrights, trademarks trade names, patents and
licenses, except in the ordinary course of business;
(c) made any material changes in employee compensation or benefit plans and
programs, except in the ordinary course of business and consistent with past
employment practices or as required by agreement or law;
(d) entered into any other material transaction, except in the ordinary
course of business or as specifically contemplated by this Agreement;
(e) paid or incurred any material obligation or liability (absolute or
contingent), except obligations or liabilities incurred in the ordinary course
of the operation of its business as carried on at and prior to the date of this
Agreement;
(f) Canceled without payment in full or compromised any material claim,
notes, loans or obligations or other rights of value receivable from any person,
except in the ordinary course of business;
(g) issued or authorized the issuance of additional shares of stock or any
options, warrants or rights to acquire any shares of its stock, as the case may
be, or made any contribution to the equity capital of any entity.
(h) terminated or made any material amendment to any material contract,
lease, license or any other material agreement, except in the ordinary course of
business; or
(i) entered into any agreement or understanding to do any of the
foregoing.
2.6 No Violations; Consents.
(a) Neither the execution and delivery of this Agreement by Gold Bond nor
the consummation of the transactions contemplated hereby, nor compliance with
any of the provisions hereof will: (i) violate, conflict with, or result in
breach of any provision of, require any consent, approval or notice under, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) or result in a right of termination or acceleration
under any of the terms, conditions or provisions of (x) its charter or by-laws
or (y) any material note, bond, mortgage, indenture, deed of trust, agreement,
lien, contract or other instrument or obligation to which Gold Bond or any of
its shareholders is a party or to which any of them, or any of their respective
properties or assets, may be subject or by which Gold Bond is bound; or (ii)
subject to compliance with the statutes and regulations referred to in Section
2.4(b), violate any judgment, ruling, order, writ, injunction, determination,
award, decree, statute, ordinance, rule or regulation applicable to Gold Bond or
any of its shareholders or any of their respective properties or assets (except,
in the case of each of clauses (i) and (ii) above, for such violations,
conflicts, breaches, defaults, terminations or accelerations , or any consents,
approvals or notices which if not given or received, would not have any Material
Adverse Effect on the business, financial condition or results of operations of
Gold Bond taken as a whole or on the ability of Gold Bond to consummate the
transactions contemplated hereby).
(b) There is (i) no legal impediment to Gold Bond's consummation of the
transactions contemplated by this Agreement, and (ii) no filing or registration
with, or authorization, consent or approval of, any domestic or foreign public
body or authority is necessary for the consummation by Gold Bond of the
transactions contemplated by this Agreement; except (i) for such filings or
registrations which, if not made, or for such authorizations, consents or
approvals which, if not received, would not have any material adverse effect on
the business, financial condition or results of operations of Gold Bond taken as
a whole or on the ability of Gold Bond to consummate the transactions
contemplated hereby, and (ii) for such filings, registration, authorization,
consent or approvals as may be required by the provisions of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules
and regulations thereunder (the "Hart-Scott-Rodino Act"), and the Washington
Business Corporations Act.
2.7 Litigation. Except as disclosed on Schedule 2.7, there are no
actions or suits against Gold Bond or its officers or directors in their
capacity as such which are reasonably likely to have a Material Adverse Effect.
2.8 Taxes. Except as set forth on Schedule 2.8, Gold Bond has timely
filed or caused to be timely filed with the appropriate Federal, state, local
and foreign governmental agencies, all material tax returns, information
returns, forms and reports required to be filed and have timely paid in full all
taxes shown to be due on or before the date hereof on such tax returns. For
purposes of this Agreement, the term "tax" shall include all interest, penalties
and additions to tax related thereto. Except as set forth in 2.8, no material
tax liens have been filed and no material claims are being asserted in writing
with respect to the assessment or collection of any taxes. Except as set forth
in Schedule 2.8, there are no outstanding agreements or waivers extending the
statutory period of limitation applicable to any material tax returns required
to be filed with respect to Gold Bond. The Federal income tax returns of Gold
Bond have been examined for all taxable years through the fiscal year ended July
31, 2002. The Federal income tax returns of Gold Bond are not being audited as
of the date of the execution of this Agreement. Gold Bond has not made any
consent under Section 341(f) of the Code. Any accrued current liability for
taxes (which shall not include an accrual for the current portion of and
deferred tax assets or liabilities) in the balance sheet of Gold Bond at July
31, 2002 adequately provides for all unpaid taxes relating to the business,
assets, and activities of Gold Bond for periods ending on or prior to the date
thereof.
2.9 Brokerage Fees. Except as set forth in Schedules 2.2 or 2.9, Gold
Bond has not retained any financial adviser, broker, agent or finder or paid or
agreed to pay any financial adviser, broker, agent or finder on account of this
Agreement or any transaction contemplated hereby.
2.10 Accuracy of Information Furnished. No statement by Gold Bond
contained in this Agreement or furnished to EnerTeck contains any untrue
statement of a material fact, or omits to state any material fact which is
necessary to make the statements contained herein, in light of the circumstances
under which they were made, not misleading.
ARTICLE 3
Representations and Warranties of EnerTeck
EnerTeck hereby represents and warrants to Gold Bond as follows:
3.1 Organization and Qualification. EnerTeck is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Texas and has the requisite corporate power and authority to carry on its
business as it is now being conducted. EnerTeck is duly qualified to do
business and is in good standing in each jurisdiction in which the character of
its properties, owned or leased, or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified or in good
standing would not have a material adverse effect on the business, financial
condition or results of operations of EnerTeck taken as a whole (a "Material
Adverse Effect"). Copies of the Articles of Incorporation and By-Laws, as
amended, of EnerTeck previously delivered to Gold Bond are accurate and complete
as of the date hereof.
3.2 Capitalization. As of the date hereof, the authorized capital
stock of EnerTeck consists of 1,000,000 shares of no par value common stock, of
which 1,000,000 shares are issued and outstanding. There are no options,
warrants, puts, calls or other rights, agreements or commitments of any
character whatsoever requiring the issuance, sale, transfer or repurchase by
EnerTeck of any shares of capital stock of EnerTeck or any securities
convertible into, or exchangeable or exercisable for, or otherwise evidencing a
right to acquire, any shares of capital stock of EnerTeck. All of the
outstanding shares of capital stock of EnerTeck have been duly authorized and
validly issued and are fully paid and non-assessable and are not subject to, nor
were they issued in violation of, any preemptive rights.
3.3 Authority. EnerTeck has the requisite corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. EnerTeck's Board of Directors has duly authorized the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby. Except for the approval by EnerTeck's shareholders, no other corporate
proceedings on the part of EnerTeck are necessary to authorize this Agreement
and the transactions contemplated hereby or thereby. This Agreement has been
duly executed and delivered by EnerTeck and constitutes the valid and legally
binding obligation of EnerTeck enforceable against EnerTeck in accordance with
its terms.
3.4 Financial Statements. The draft of the audited financial
statements of EnerTeck for the year ended September 30, 2002, which have been
previously delivered to Gold Bond, present fairly in all material respects the
financial position, results of operations and changes in cash flow of EnerTeck
as of the dates thereof and for the periods indicated therein in conformity with
generally accepted accounting principles (except as otherwise indicated in such
financial statements and the notes thereto) on a basis consistent with prior
periods. Except as set forth in Schedule 3.4 and except as and to the extent
set forth on the balance sheet of EnerTeck at September 30, 2002, EnerTeck did
not have any liabilities or obligations, direct, or indirect, whether accrued,
absolute, contingent or otherwise ("Liabilities"), except for Liabilities that
will not have a Material Adverse Effect and that will not have a Material
Adverse Effect on the ability of EnerTeck to consummate the transactions
contemplated hereby.
3.5 Absence of Certain Changes. Except as contemplated herein or set
forth on Schedule 3.5, since September 30, 2002, there has not occurred (i) any
material adverse change in the business, financial condition or results of
operations of EnerTeck or (ii) any loss or damage to any of the properties of
EnerTeck (whether or not covered by insurance) which has had or would be likely
to have a Material Adverse Effect. Except as set forth on Schedule 3.5, EnerTeck
has not since September 30, 2002:
(a) paid or declared any dividends or other distributions upon its stock or
redeemed, purchased or otherwise acquired any of its shares of stock, except as
specifically contemplated by this Agreement;
(b) sold, assigned, transferred, mortgaged, pledged, subjected to any
material lien, adverse claim or other encumbrance or suffered any material lien,
adverse claim or other encumbrance on any of its material tangible or intangible
assets, including material copyrights, trademarks trade names, patents and
licenses, except in the ordinary course of business;
(c) made any material changes in employee compensation or benefit plans and
programs, except in the ordinary course of business and consistent with past
employment practices or as required by agreement or law;
(d) entered into any other material transaction, except in the ordinary
course of business or as specifically contemplated by this Agreement;
(e) paid or incurred any material obligation or liability (absolute or
contingent), except obligations or liabilities incurred in the ordinary course
of the operation of its business as carried on at and prior to the date of this
Agreement;
(f) canceled without payment in full or compromised any material claim,
notes, loans or obligations or other rights of value receivable from any person,
except in the ordinary course of business;
(g) issued or authorized the issuance of additional shares of stock or any
options, warrants or rights to acquire any shares of its stock, as the case may
be, or made any contribution to the equity capital of any entity.
(h) terminated or made any material amendment to any material contract,
lease, license or any other material agreement, except in the ordinary course of
business; or
(i) entered into any agreement or understanding to do any of the
foregoing.
3.6 No Violations; Consents.
(a) Except as set forth in Schedule 3.6, neither the execution and delivery
of this Agreement by EnerTeck nor the consummation of the transactions
contemplated hereby, nor compliance by EnerTeck with any of the provisions
hereof will: (i) violate, conflict with, or result in a breach of any provision
of, require any consent, approval or notice under, or constitute a default (or
an event which, with notice or lapse of time or both, would constitute a
default) or result in a right of termination or acceleration under, or result in
the creation of any lien, security interest, charge or encumbrance upon any of
the properties or assets of EnerTeck under any of the terms, conditions or
provisions of (x) its Articles of Incorporation or by-laws or (y) any note,
bond, mortgage, indenture, deed of trust, agreement, lien, contract or other
instrument or obligation to which EnerTeck is a party or to which any of its
respective properties or assets may be subject or by which EnerTeck is bound;
(ii) subject to compliance with the statutes and regulations referred to in
Section 3.6(b), violate any judgment, ruling, order, writ, injunction,
determination, award, decree, statute, ordinance, rule or regulation applicable
to EnerTeck or any of its properties or assets (except, in the case of each of
clauses (i) and (ii) above, for such violations, conflicts, breaches, defaults,
terminations, accelerations or creations of liens, security interests, charges
or encumbrances which, or any consents, approvals or notices which if not given
or received, individually or in the aggregate, would not have a Material Adverse
Effect); or (iii) subject to compliance with the statutes and regulations
referred to in Section 3.6(b), cause the suspension or revocation of any
authorization, consent, approval or License (as hereinafter defined) currently
in effect which would have a Material Adverse Effect.
(b) (i) there is no legal impediment to EnerTeck's consummation of the
transactions contemplated by this Agreement and (ii) no filing or registration
with, or authorization, consent or approval of, any public body or authority is
necessary for the execution, delivery or consummation by EnerTeck of the
transactions contemplated by this Agreement; except (i) for such filings or
registrations which, if not made, or for such authorizations, consents or
approvals which, if not received, would not have a Material Adverse Effect or
would not materially adversely affect the ability of EnerTeck to consummate the
transactions contemplated hereby, and (ii) for such filings, registration,
authorization, consent or approvals as may be required by the provisions of the
Hart-Scott-Rodino Act and the California Business Corporations Act.
3.7 Litigation. Except as disclosed on Schedule 3.7, there are no
actions, suits or proceedings pending or, to the knowledge of the management of
EnerTeck, threatened against EnerTeck or its officers or directors in their
capacity as such which are reasonably likely to have a Material Adverse Effect.
3.8 Taxes. Except as set forth on Schedule 3.8, EnerTeck has timely
filed or caused to be timely filed with the appropriate Federal, state, local
and foreign governmental agencies, all material tax returns, information
returns, forms and reports required to be filed and have timely paid in full all
taxes shown to be due on or before the date hereof on such tax returns. For
purposes of this Agreement, the term "tax" shall include all interest, penalties
and additions to tax related thereto. Except as set forth in Schedule 3.8, no
material tax liens have been filed and no material claims are being asserted in
writing with respect to the assessment or collection of any taxes. Except as set
forth in Schedule 3.8, there are no outstanding agreements or waivers extending
the statutory period of limitation applicable to any material tax returns
required to be filed with respect to EnerTeck. The Federal income tax returns of
EnerTeck are not being audited as of the date of the execution of this
Agreement. EnerTeck has not made any consent under Section 341(f) of the Code.
Any accrued current liability for taxes (which shall not include an accrual for
the current portion of and deferred tax assets or liabilities) in the balance
sheet of EnerTeck at September 30, 2002, adequately provides for all unpaid
taxes relating to the business, assets, and activities of EnerTeck for periods
ending on or prior to the date thereof.
3.9 Licenses. EnerTeck (the "License Holder") duly holds all licenses,
franchises, authorizations, permits, ordinances, certificates, consents and
approvals (collectively, the "Licenses") of all governmental or regulatory
agencies, whether Federal, state or local, necessary or appropriate to enable it
to continue to conduct its business in all material respects as presently
conducted. Schedule 3.9 reasonably identifies each material License in effect on
the date of this Agreement. Each of the foregoing Licenses is in full force and
effect and there are no pending modifications, amendments or revocation
proceedings that would have a Material Adverse Effect. All material fees,
including material franchise fees, due and payable to governmental authorities
pursuant to the Licenses have been paid and no event has occurred which,
individually or in the aggregate, and with or without the giving of notice or
the lapse of time or both, would constitute grounds for revocation thereof and
would have a Material Adverse Effect. The License Holder is in compliance with
all of the terms of the Licenses and the operation of its business has been and
is being conducted in accordance with all applicable provisions of such
Licenses, except in each case for such matters of non-compliance which,
individually or in the aggregate, would not have a Material Adverse Effect. The
License Holder is not in material default under any License, and there is no
material condition, event or occurrence existing, or, to the best of EnerTeck's
knowledge after due investigation, any proceeding threatened or being conducted,
which would cause the termination, suspension, cancellation or non-renewal of
any of the Licenses and which termination, suspension, cancellation or
non-renewal would have a Material Adverse Effect.
3.10 Intellectual Properties. Schedule 3.10 sets forth a list of all
trademarks, trade names, service marks, copyrights or patents that EnerTeck has
registered with the United States Patent and Trademark Office and the United
States Copyright Office (collectively, "Intellectual Properties"). Except as set
forth on Schedule 3.10, no proceedings have been instituted, or, to the
knowledge of EnerTeck, are threatened which challenge the validity or the
ownership of the Intellectual Properties. The Intellectual Properties owned by
EnerTeck are in full force and effect and, to the knowledge of EnerTeck, are
valid.
3.11 Title to its Property. EnerTeck leases or has good and marketable
title to real properties and leases or has good title to each of their other
material properties and operating assets as are reflected in the balance sheet
of EnerTeck or acquired by EnerTeck after such date. In each case the is title
free and clear of all liens, claims and encumbrances, other than (i) as set
forth on Schedule 3.11 or (ii) such liens, claims and encumbrances as do not
materially interfere with the present use of such properties or which do not
materially impair the ability of EnerTeck to conduct its business. EnerTeck owns
or leases all of the rights, properties and assets for the conduct of its
business as presently conducted. Schedule 3.11 contains a brief identification
of all real property, categorized by record owner, owned or leased by EnerTeck,
including all buildings, plant, improvements or important structures located
thereon. To the best of EnerTeck's knowledge, the buildings, plant and
improvements located on the premises identified in Schedule 3.11 and the present
use thereof, comply with all zoning laws, ordinances and regulations of
governmental authorities having jurisdiction thereof, except for such matters of
non-compliance which, individually or in the aggregate, would not have a
Material Adverse Effect.
3.12 Brokerage Fees. Except as set forth in Schedule 3.12, EnerTeck
has not retained any financial advisor, broker, agent or finder or paid or
agreed to pay any financial advisor, broker, agent or finder on account of this
Agreement or any transaction contemplated hereby.
3.13 Compliance with Laws. Except as previously disclosed to Gold
Bond, EnerTeck is in compliance with all federal, state, local and foreign laws,
ordinances, rules, regulations and orders currently applicable to the businesses
or properties of EnerTeck including, without limitation, all rules, regulations
and administrative orders relating to anti-competitive practices,
discrimination, employment, health, and safety, except for such matters of
non-compliance which, individually or in the aggregate, would not have a
Material Adverse Effect. Schedule 3.13 contains a list of all judicial consents,
orders or decrees under which EnerTeck is operating or by which it is bound,
copies of which have been furnished to Gold Bond.
3.14 Accuracy of Information Furnished. No statement by EnerTeck
contained in this Agreement or provided to Gold Bond contains any untrue
statement of a material fact, or omits to state any material fact which is
necessary to make the statements contained herein, in light of the circumstances
under which they were made, not misleading.
ARTICLE 4
Conduct of Business Pending the Share Exchange
4.1 Conduct of Business Prior to the Effective Date. Except as set
forth on Schedule 4.1, EnerTeck and Gold Bond each covenant and agree that,
prior to the Effective Date, unless the other party shall otherwise agree in
writing (which agreement shall not be unreasonably withheld or delayed) or as
otherwise expressly permitted or specifically contemplated by this Agreement:
(a) The business of EnerTeck shall be conducted only in, and EnerTeck shall
not take any action except in, the ordinary course of business, and EnerTeck
shall use its best efforts to maintain and preserve its business organization,
assets, employees and business relationships; and
(b) The business of Gold Bond shall be conducted only in, and Gold Bond
shall not take any action except in, the ordinary course of business, and Gold
Bond shall use its best efforts to maintain and preserve its business
organization, assets, employees and business relationships.
ARTICLE 5
Access to Information
5.1 Access to Information; Confidentiality. From the date hereof until
the Effective Date, Each party hereto shall cause it officers, directors,
employees and agents to afford to the other party and to the officers,
employees, agents and financing sources of the other party reasonable access
during normal business hours to their officers, employees, agents, properties,
books records and contracts, and shall furnish the other party all existing
financial, operating and other data and information as may be reasonably
requested; provided, however, that all such requests shall initially be directed
to EnerTeck's executive officers. Gold Bond shall give EnerTeck at least two
business days' notice prior to any visit to EnerTeck's facilities.
ARTICLE 6
Conditions to the Share Exchange
6.1 Conditions to the Obligation of Each Party to Effect the Share
Exchange. The respective obligations of each party to effect the Share Exchange
shall be subject to the fulfillment at or prior to the Effective Date of each of
the following conditions:
(a) This Agreement shall have been approved and adopted by the requisite
vote of the shareholders of EnerTeck at the meeting referred to in Article 7.1.
(b) The Directors of Gold Bond shall have serially resigned and the
vacancies filled by appointment of a Board of Directors consisting of Dwaine
Reese as Chairman of the Board and those persons approved by him. Simultaneously
therewith, Mr. Reese shall be appointed Chief Operating Officer, who, in turn,
shall appoint an interim President for a period up to 60 days thereafter.
(c) The minimum amount of the private placement as described in Schedule 2.2
shall have been sold.
(d) No preliminary or permanent injunction or other order, decree or ruling
issued by a court of competent jurisdiction or by a governmental, regulatory or
administrative agency or commission nor any statute, rule, regulation or
executive order promulgated or enacted by any governmental authority shall be in
effect which would (i) make the acquisition or holding by Gold Bond or its
affiliates of the shares of EnerTeck Common Stock illegal or (ii) otherwise
prevent the consummation of the Share Exchange.
6.2 Additional Conditions to the Obligation of EnerTeck. The
obligation of EnerTeck to effect the Share Exchange is also subject to each of
the following conditions:
(a) Gold Bond shall have performed in all material respects each material
obligation to be performed by it hereunder on or prior to the Closing.
(b) The representations and warranties of Gold Bond set forth in this
Agreement shall be true and correct in all material respects at and as of the
Effective Date as if made at and as of such time, except as affected by
transactions contemplated or permitted by this Agreement and except to the
extent that any such representation or warranty is made as of a specified date,
in which case such representation or warranty shall have been true and correct
as of such date; provided, however, that the representations and warranties
shall be true and correct only to the extent that neither individually nor in
the aggregate do the facts underlying the breaches thereof have a material
adverse effect on the financial condition, business or results of operations of
Gold Bond taken as a whole.
6.3 Additional Conditions to the Obligations of Gold Bond. The
obligations of Gold Bond to effect the Merger are also subject to each of the
following conditions:
(a) EnerTeck shall have performed in all material respects each material
obligation to be performed by it hereunder on or prior to the Closing.
(b) The representations and warranties of EnerTeck set forth in this
Agreement shall be true and correct in all material respects at and as of the
Effective Date as if made at and as of such time, except as affected by
transactions contemplated or permitted by this Agreement and except to the
extent that any such representation or warranty is made as of a specified date,
in which case such representation or warranty shall have been true and correct
as of such date; provided, however, that the representations and warranties
shall be true and correct only to the extent that neither individually nor in
the aggregate do the facts underlying the breaches thereof have a Material
Adverse Effect.
ARTICLE 7
7.1 Restricted Shares and Lockup. The Gold Bond Common Stock to be
issued in exchange for the Shares of EnerTeck Common Stock are exempt from
registration under the Securities Act of 1933, as amended, and, as such are
restricted securities. All certificates representing the Gold Bond Common Stock
and any and all securities issued in replacement thereof or in exchange therefor
shall bear the following legend, or one substantially similar thereto:
"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, transferred or assigned in the absence of an
effective registration statement for these securities under the Securities Act
of 1933 or an opinion of the Company's counsel that registration is not required
under said Act."
7.2 Lockup. Each of the holders of EnerTeck Common Stock shall be
required to enter into a Lockup Agreement pursuant to which no shares of Gold
Bond Common Stock received in exchange for shares of EnerTeck Common Stock may
be sold for a period of 18 months from the Effective Date.
ARTICLE 8
8.1 Shareholder Approval. This Share Exchange Agreement shall be
submitted to the shareholders of EnerTeck for their approval in the manner
provided by the corporate laws of Texas, at a meetings to be held on or before
January 15, 2003, or such other time as the Boards of Directors of Gold Bond and
EnerTeck shall agree. Promptly after the Agreement has been approved by the
shareholders of EnerTeck, the officers of each company shall deliver Articles of
Share Exchange (a copy of which is attached hereto and by this reference
incorporated herein) for filing to their respective Secretary of State, as
required under the applicable law.
ARTICLE 9
9.1 Effective Date. The Share Exchange shall be effective upon the
last to occur of the filing of the Articles of Share Exchange with the Secretary
of State of the State of Washington and the filing of the Articles of Share
Exchange with the Secretary of State of the State of Texas.
ARTICLE 10
10.1 Termination of Agreement. This Agreement may be abandoned at any
time prior to filing of the Articles of Share Exchange, upon a vote of a
majority of the Board of Directors of both Gold Bond and EnerTeck. If EnerTeck
terminates the Share Exchange without cause, EnerTeck agrees to pay Gold Bond
for all fees and costs incurred. For the purposes of this Article, "for cause"
shall be deemed to mean a material breach of any of Gold Bond's Representations
and Warranties.
ARTICLE 11
11.1 Counterparts. This Agreement may be executed in any number of
counterparts and all of such counterparts and copies shall be and constitute an
original instrument.
ARTICLE 12
12.1 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Washington.
IN WITNESS WHEREOF, this Share Exchange Agreement has been adopted by the
undersigned corporations as of this 30th day of December 2002.
EnerTeck Chemical Corp.
By:___________________________________
Dwaine Reese, Chief Executive Officer
Gold Bond
By:____________________________________
Robert W. O'Brien, Chief Executive Officer
SCHEDULES
GOLD BOND
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2.2 CAPITALIZATION
Gold Bond has committed to issue the following shares of its common stock
1. Parrish Brian Partners, Inc. will receive warrant to purchase 15
million shares at $.10/share;
2. Parrish Brian & Co., Inc. will receive 5,000,000 shares for
previously
rendered services;
3. up to 10,000,000 shares will be issued in the private placement (the
minimum is 2,000,000 shares);
4. Parrish Ketchmark will receive 2,000,000 S-8 shares for consulting
services;
5. Waxtech International, Inc., for services previously rendered to
Enerteck, has the option to purchase up to 1,750,000 shares at a price per share
equal to the 52 week low bid price prior to the effective date of this share
exchange agreement; and
6. 10,000,000 shares to Dwaine Reese in consideration for Mr. Reese
waiving his right to receive commissions under an existing agreement with
EnerTeck.
2.5 ABSENCE OF CERTAIN CHANGES
As a fee for services rendered to the Company Gold Bond has committed to pay
Robert O'Brien and Terrence J. Dunne at closing such cash the Company has on its
books after payment of costs and expenses related to this share exchange
transaction.
2.7 LITIGATION
None
2.8 TAXES
None
2.9 BROKERAGE FEES
See schedules 2.2 and 2.5
ENERTECK
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3.2 CAPITALIZATION.
The following is a list of the EnerTeck Shareholders, including each's name,
address, the number of EnerTeck common shares currently held (1) and the number
of Gold Bond common shares to be issued to each as a result of the Share
Exchange (2).
Dwaine Reese Tom Himsel
2206 Country Creek Way 2177 Willow Lake Drive
Richmond, Texas 77469 Greenwood, Indiana 46143
(1) 510,000 EnerTeck common shares (1) 115,000 EnerTeck common
shares
(2) 25,500,000 Gold Bond common shares (2) 5,750,000 Gold
Bond common shares
Tom Kaminski Ken Jackson
2158 Jackson Street 12818 Chriswood Drive
Portage, Indiana 46368-2341 Cypress, Texas 77429
(1) 90,000 EnerTeck common shares (1) 95,000 EnerTeck common shares
(2) 4,500,000 Gold Bond common shares (2) 4,750,000 Gold Bond
common shares
Gary Aman Stan Crow
6119 Apple Valley Lane 1410 Andover
Houston, Texas 77069 Livingston, Texas 77351
(1) 90,000 EnerTeck common shares (1) 100,000 EnerTeck common shares
(2) 4,500,000 Gold Bond common shares (2) 5,000,000 Gold Bond common
shares
3.4 FINANCIAL STATEMENTS
None
3.5 ABSENCE OF CERTAIN CHANGES
See Schedule 3.2
3.6 NO VIOLATIONS: CONSENTS
None
3.7 LITIGATION
None
3.8 TAXES
NONE
3.9 LICENSES
Fuel Additive registrations with Environmental Protection Agency
1840-01 EC 5805A
1840-002 Enerburn
3.10 INTELLECTUAL PROPERTY
Registered Trademark "EnerBurn"
3.11 TITLE TO PROPERTIES
None
3.12 BROKERAGE FEES
See Schedule 3.2
3.13 COMPLIANCE WITH LAWS
None
4.1 CONDUCT OF BUSINESS PRIOR TO THE EFFECTIVE DATE
GOLD BOND
None
ENERTECK
None