EXHIBIT 2.1
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AGREEMENT FOR THE PURCHASE OF ARIZONA PACIFIC MATERIALS, LLC
This Agreement for the purchase of Arizona
Pacific Materials, LLC ("AGREEMENT")
is entered into on September 8, 2004, by
and between WESTERN POWER & EQUIPMENT
CORP., a Delaware corporation (hereinafter
referred to as "WPEC"), as Purchaser,
and BASALITE CONCRETE PRODUCTS, LLC, a
Nevada limited liability company
(hereinafter referred to as "BASALITE"),
and the Edith Greenberg Irrevocable
Trust (hereinafter referred to as the
"GREENBERG TRUST"), collectively as
Seller, and ADVANCED MINERAL TECHNOLOGY of
NEVADA, Inc., a Nevada corporation
(hereinafter referred to as "AMT"), as
Guarantor, with respect to the following
facts:
RECITALS
A. WHEREAS, BASALITE and the GREENBERG TRUST (hereinafter
jointly
referred to as the "MEMBERS") are the
owners of all the membership interests in
Arizona Pacific Materials, LLC, an Arizona
Limited Liability Company
(hereinafter referred to as "ARIZONA
PACIFIC").
B. WHEREAS, WPEC desires to purchase and the MEMBERS desire to
sell
their entire membership interests in
ARIZONA PACIFIC thereby effectively
transferring all rights, benefits,
interests, liabilities, obligations and
burden in and to its assets, real and
personal.
C. NOW, THEREFORE, for and in consideration of the mutual
agreements
set forth herein, and subject to the terms
and conditions set forth below, the
parties agree as follows:
AGREEMENT
1. Sale of Membership Interests: The MEMBERS shall sell and
transfer
to WPEC, and WPEC shall purchase and
acquire from the MEMBERS, all of the
outstanding membership interests of ARIZONA
PACIFIC, thereby effectively
transferring all rights, benefits,
interests, liabilities, obligations and
burden in and to its assets, both real and
personal. The MEMBERS own the
following percentage interests in ARIZONA
PACIFIC:
Basalite Concrete Products, LLC
50.1%
Edith Greenberg Irrevocable Trust
49.9%
2. Purchase Price: WPEC shall pay to the MEMBERS a total of
Three
Million Dollars ($3,000,000.00) payable
according to the following schedule:
2.1 The sum of Five Hundred Thousand Dollars
($500,000.00) upon execution by WPEC of
this Agreement;
2.2 The balance of the purchase price shall be evidenced
in the form of a Two Million Five Hundred
Thousand Dollar ($2,500,000.00)
promissory note (the "NOTE") in
substantially the same form as Exhibit D
attached hereto and incorporated by this
reference and guaranteed by AMT and
paid in two (2) installments, one
installment due and payable within thirteen
(13) months of the Closing (as hereinafter
defined) in the amount of Two Million
Dollars ($2,000,000.00) and the second
installment due and payable within
nineteen (19) months of the Closing in the
amount of the outstanding principal
and accrued interest. The Note shall accrue
simple interest at the rate of Five
percent (5%) per annum which interest shall
commence accumulating from the
Closing.
3. Closing: The Closing of this transaction shall take place on
or
before the close of the fifth (5th)
business day after execution of the
Agreement by WPEC at Sacramento, California
(the "CLOSING") or at such other
time and place as the parties shall
mutually agree after all conditions
precedent to the Closing have been
satisfied. At the Closing, the MEMBERS shall
transfer to WPEC, free and clear of all
encumbrances, 100% of the
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membership interests in ARIZONA PACIFIC
along with such membership certificates,
if any, evidencing the membership interests
and any assignments of such
interests as may be required by law to
transfer said interests.
4. The MEMBERS' Representations and Warranties: The MEMBERS
represent, covenant, and warrant that as of
this date and the date of the
Closing:
4.1 Good Standing:
4.1.1 ARIZONA PACIFIC is a limited liability
company duly organized and validly existing
under the laws of the State of
Arizona, and is in good standing in such
state; that the company has filed all
returns with respect to state and Federal
income, franchise, employee, and other
taxes of ARIZONA PACIFIC, which, to the
actual knowledge of the MEMBERS, are
required to be filed for and with respect
to all previous years since
incorporation up to the present and current
fiscal year; and that the MEMBERS
have paid all taxes shown to be due on such
returns. For purposes of this
paragraph, "the actual knowledge of the
MEMBERS" shall mean the actual knowledge
of David C. Pringle who the MEMBERS
represent is the Officer of ARIZONA PACIFIC
who is most familiar with such filings and
operational documents of ARIZONA
PACIFIC without any imputation of knowledge
as a result of agency or
constructive knowledge principles, and
without any obligation to undertake any
investigation or take any affirmative
action to acquire any knowledge.
4.1.2 BASALITE is a Nevada limited liability
company duly organized and validly existing
under the laws of the State of
Nevada, and is in good standing in such
state; that the company has filed all
returns with respect to state and Federal
income, franchise, employee, and other
taxes of BASALITE, which to the actual
knowledge of BASALITE, are required to be
filed, for and with respect to all previous
years since incorporation up to the
present and current fiscal year; and that
BASALITE has paid all taxes shown to
be due on such returns. For purposes of
this paragraph, "the actual knowledge of
BASALITE" shall mean the actual knowledge
of David C. Pringle who BASALITE
represents is the officer of BASALITE who
is most familiar with such filings and
operational documents of BASALITE without
any imputation of knowledge as a
result of agency or constructive knowledge
principles, and without any
obligation to undertake any investigation
or take any affirmative action to
acquire any knowledge.
4.1.3. The GREENBERG TRUST is an existing
trust, all of whose existing agent shall
execute this Agreement on behalf of
said trust. The trust has filed all returns
with respect to state and Federal
income, franchise, employee, and other
taxes of the trust, which to the actual
knowledge of the agent, are required to be
filed, for and with respect to all
previous years since establishment of the
trust up to the present and current
fiscal year; and that the trust has paid
all taxes shown to be due on such
returns. The agent executing this Agreement
is authorized to act on behalf of
the trust and, if requested, shall provide
WPEC with a Certification of Trust
and related agency documents in a form
satisfactory to WPEC. For purposes of
this paragraph, "the actual knowledge of
the agent" shall mean the actual
knowledge of Harold Greenberg, Duly
Authorized Agent, who is most familiar with
such filings and operational documents of
the trust without any imputation of
constructive knowledge principles, and
without any obligation to undertake any
investigation or take any affirmative
action to acquire any knowledge.
4.2 Membership Interests of ARIZONA PACIFIC: The
membership interests of ARIZONA PACIFIC
owned by the MEMBERS are free and clear
of all liens and encumbrances; the MEMBERS
have the unrestricted and unlimited
right and authority to sell, transfer, and
deliver such membership interests;
the total interests of ARIZONA PACIFIC are
owned by the MEMBERS.
4.3 Balance Sheet: ARIZONA PACIFIC is the owner of the
assets listed in the March 31, 2004,
Balance Sheet attached hereto as Exhibit A.
The MEMBERS further represent that the
assets listed in the Balance Sheet are
free and clear of any liens, encumbrances
or claims for payment and that all
debts or liabilities of ARIZONA PACIFIC
listed in the aforementioned Balance
Sheet have been, or will be, paid or
assumed by the MEMBERS excepting the
reclamation bond recorded against that
certain real property located in the
unicorporated area of Pinal County (the
"QUEEN CREEK PROPERTY").
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4.4 Debts and Obligations of ARIZONA PACIFIC: It is
specifically agreed and understood that,
except for the reclamation bond
provided for in Section 4.5, below, all
debts and obligations of ARIZONA PACIFIC
shall be paid prior to the Closing or
assumed by the MEMBERS and WPEC shall have
no obligations for the payments of any
debts, accounts, or other obligations
incurred by ARIZONA PACIFIC prior to the
Closing.
4.5 Reclamation Bond: The reclamation bond recorded
against the Queen Creek Property shall
remain in place until WPEC obtains a bond
in its own name. However, the obligations
of the MEMBERS and/or its predecessor
in interest, PACIFIC COAST BUILDING
PRODUCTS, INC., a California corporation
("PCBP"), under said bond shall be assumed
by WPEC upon the transfer of ARIZONA
PACIFIC to WPEC and WPEC shall indemnify
and hold the MEMBERS and PCBP harmless
from any and all expenses, costs,
obligations, and other liabilities under the
terms of that bond which occur or accrue
after the Closing.
4.6 Operating Permits: The Members represent that to
their actual knowledge all operating
permits required to operate the Queen Creek
and Flagstaff operations, including, but
not limited to, Arizona state land use
permits and air quality permits have been
validly issued and are currently
valid. For purposes of this paragraph, "the
actual knowledge of BASALITE" shall
mean the actual knowledge of David C.
Pringle who BASALITE represents is the
officer of BASALITE who is most familiar
with such filings and operational
documents of BASALITE without any
imputation of knowledge as a result of agency
or constructive knowledge principles, and
without any obligation to undertake
any investigation or take any affirmative
action to acquire any knowledge. The
MEMBERS shall indemnify and hold WPEC
harmless from any and all expenses, costs,
obligations, and other liabilities under
the terms of all permits which occur or
accrue prior to the Closing. The MEMBERS
represent and warrant that WPEC's
purchase of the MEMBERS' Ownership
Interests will not result in a breach of, a
default in, or an invalidation of any of
the permits, in whole or in part.
4.7 Property Leases, Contracts, and Agreements: The
MEMBERS represent to their actual knowledge
that all property leases, contracts,
and agreements (and all amendments thereto)
for the Queen Creek and Flagstaff
operations, including, but not limited to,
the BLM Contract, the Flagstaff Lease
Agreement, the Arizona State land Mineral
Lease, and the CAP Water Contract are
valid and enforceable contracts and that no
default or violation exists under
any of these leases, contracts, and
agreements. For purposes of this paragraph,
"the actual knowledge of BASALITE" shall
mean the actual knowledge of David C.
Pringle who BASALITE represents is the
officer of BASALITE who is most familiar
with such filings and operational documents
of BASALITE without any imputation
of knowledge as a result of agency or
constructive knowledge principles, and
without any obligation to undertake any
investigation or take any affirmative
action to acquire any knowledge. The
MEMBERS shall indemnify and hold WPEC
harmless from any and all expenses, costs,
obligations, and other liabilities
under the terms of all such leases,
contracts, and agreements which occur or
accrue prior to the Closing. The MEMBERS
represent and warrant that WPEC's
purchase of the MEMBERS' Ownership
Interests will not result in a breach of, a
default in, or an invalidation of any of
the leases, contracts, and agreements,
in whole or in part.
4.8 Changes in Balance Sheet or Business: There will be
no material changes in the assets or
liabilities or financial condition of
ARIZONA PACIFIC nor shall any contractual
arrangement or obligation, other than
those in the normal course of business, be
undertaken prior to the Closing
except as may be otherwise listed and
provided for in this Agreement; and all
wages, salaries, commissions, indebtedness,
and obligations of ARIZONA PACIFIC
to its members, managers, employees, and
agents have been or will be discharged
at the Closing.
4.9 Pending Suits: No material suits, actions, or
proceedings are pending, or to the
knowledge of the MEMBERS are threatened
against or affecting ARIZONA PACIFIC or its
property.
4.10 Financial Statements: The profit and loss
statement, balance sheet and other
financial documents supplied to WPEC are true
and correct and fairly represent the
financial condition of ARIZONA PACIFIC, and
were prepared in accordance with generally
accepted accounting principals and
practice.
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5. WPEC's Representations and Warranties:
5.1 Good Standing of WPEC: WPEC is a corporation duly
organized and validly existing under the
laws of the State of Delaware, and is
in good standing in such state; that the
company has filed all returns with
respect to state and Federal income,
franchise, employee, and other taxes of the
corporation, which, to the actual knowledge
of the President, are required to be
filed for and with respect to all previous
years since incorporation up to the
present and current fiscal year; and that
the corporation has paid all taxes
shown to be due on such returns. For
purposes of this paragraph, "the actual
knowledge of the President" shall mean the
actual knowledge of C. Dean McLain
who is the officer of the corporation who
is most familiar with such filings and
operational documents of WPEC without any
imputation of knowledge as a result of
agency or constructive knowledge
principles, and without any obligation to
undertake any investigation or take any
affirmative action to acquire any
knowledge.
5.2 Balance Sheet: WPEC is the owner of the assets
listed in the April 30, 2004, Balance Sheet
attached hereto as Exhibit B.
5.3 Reclamation Bo
