Blackwell 3D Construction Corp 8-K, filed Sep 15, 2022
Blackwell 3D Construction Corp. (BDCC)
About this 8-K
Blackwell 3D Construction Corp filed this 8-K on September 15, 2022, reporting on events of September 9, 2022.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.01: Completed an acquisition or sale of assets
- Item 3.02: Unregistered sale of equity
- Item 5.01: Change in control
- Item 5.02: Director or officer change, or executive pay
- Item 5.06: Change in shell company status
- Item 9.01: Financial statements and exhibits
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 14, 2022 (
(Exact name of registrant as specified in its charter) |
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Tel: +1 (
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
265 SUNRISE HIGHWAY, SUITE 276 ROCKVILLE CENTRE, NY, 11570
(Former Name or Former Address, if Changed Since Last Report)
Securities registered pursuant to Section 12(b) of the Act:
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
POWER AMERICAS RESOURCE GROUP LTD.
Form 8-K
Current Report
Item 1.01. Entry into a Material Definitive Agreement
Asset Purchase Agreement
On September 9, 2022 (the “Closing Date”), Power Americas Resource Group Ltd. (the “Company”) and Boris Goldstein, an individual (“Goldstein”) closed on an Asset Purchase Agreement pursuant to which the Company acquired certain assets belonging to Goldstein as set forth in the appendix to the Purchase Agreement (the “Acquisition”). As part of the Purchase Agreement, the Company acquired specific assets relating to 3D/4D printing technology for use in the construction industry (collectively, the assets acquired are hereinafter referred to as the “Assets”). With the acquisition of the Assets, we intend to “print green” homes without using hard chemicals utilizing proprietary printing methods and proprietary concrete technology. At the heart of the acquisition is a large-format portal COP-printer with enhanced performance for printing elements of buildings, structures on foundations with an area of 12 x 100 m and a height up to 12 m. The printer can be expanded to include a high-pressure washer and a supply station for synchronized concrete mixes. The aggregate purchase price for the Assets is 30,000,000 restricted shares (the “Shares”) of the Company’s common stock (the “Purchase Price”) which are payable immediately. Each of Company and Goldstein have made customary representations, warranties, covenants, and indemnities in connection with the Acquisition.
A description of the specific terms and conditions of the acquisition are set forth in the Purchase Agreement, which is attached hereto as Exhibit 10.01 and is incorporated herein by reference.
The Purchase Agreement contains representations and warranties that the parties made to each other as of specific dates. The assertions embodied in those representations and warranties were made solely for purposes of the Purchase Agreement and may be subject to important qualifications and limitations agreed to by the parties in connection with negotiating the terms of the Purchase Agreement. In addition, such representations and warranties: (i) may not be accurate or complete as of any specified date; (ii) are modified and qualified in important part by the underlying disclosure schedules; (iii) may be subject to a contractual standard of materiality different from those generally applicable to investors; or (iv) may have been used for the purpose of allocating risk among the parties to the Purchase Agreement, rather than establishing matters as facts. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Purchase Agreement, which subsequent information may or may not be fully reflected in Company’s public disclosures. For the foregoing reasons, the representations and warranties should not be relied upon as statements of factual information.
Item 2.01 Completion of Acquisition or Disposition of Assets
The information regarding the Purchase Agreement and the Acquisition set forth in Item 1.01 is incorporated herein by reference.
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Item 3.02. Unregistered Sales of Equity Securities
The Shares issuable pursuant to the Purchase Agreement disclosed in Item 1.01 above were issued in reliance upon the exemption from registration afforded under Section 4(2) of the Securities Act for transactions by an issuer not involving a public offering or Regulation S for offers and sales of securities outside the United States. The Shares issued pursuant to the Purchase Agreement are exempt transactions pursuant to Section 4(2) of the Securities Act as the transaction was a private transaction by the Company and did not involve any public offering. Additionally, we relied upon the safe harbor provision of Rule 903 of Regulation S of the Securities Act which permits offers or sales of securities by the Company outside of the United States that are not made to “U.S. Persons” or for the account or benefit of a “U.S. Person”, as that term is defined in Rule 902 of Regulation S.
The following table sets forth, as of September 12, 2022, the beneficial ownership of the outstanding common stock by: (i) any holder of more than five (5%) percent; (ii) each of our executive officers and directors; and (iii) our directors and executive officers as a group. Unless otherwise indicated, each of the stockholders named in the table below has sole voting and dispositive power with respect to such shares of common stock. As of the date of this Current Report, there are 30,062,260 shares of common stock issued and outstanding, including the 30,000,000 shares that are issuable per the terms of the Purchase Agreement.
Name and Address of Beneficial Owner Directors and Officers: |
| Amount and Nature of Beneficial Ownership (Common Shares) |
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| Amount and Nature of Beneficial Ownership (Preferred Shares)(1) |
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Boris Goldstein 30211 Avenida de Las Banderas Suite 200-2002 Rancho Santa Margarita, CA 92688 |
| 30,000,000 |
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| 99.79% |
| NIL |
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Mark Croskery 30211 Avenida de Las Banderas Suite 200-2002 Rancho Santa Margarita, CA 92688 |
| NIL |
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| 00.00% |
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Aplicaciones Quimicas Especializadas del Sureste, S.A. de C.V. Calle 53 414 Col. Centro, Merida, Yucatan, Mexico, CP 97000 |
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| 00.00% |
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| 1,350,000 |
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All executive officers and directors as a group |
| 30,000,000 |
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| 99.79% |
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| (1) | Boris Goldstein acquired these shares on September 9, 2022 as part of the Purchase Agreement. |
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| (2) | Aplicaciones Quimicas Especializadas del Sureste, S.A. de C.V. owns 1,350,000 shares of the Company’s Series A Preferred Shares representing 100% of the issued and outstanding shares of the Series A Preferred Shares. The Series A Preferred Shares carry, among other rights, preferences and privileges, 100 to 1 voting rights. |
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| (3) | Aplicaciones Quimicas Especializadas del Sureste, S.A. de C.V. acquired these shares on September 12, 2022 by exchanging 135,000 shares of common stock for the 1,350,000 shares of Series A Preferred Stock. |
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ITEM 5.01. CHANGES IN CONTROL OF REGISTRANT
As a result of the Purchase Agreement, the following changes to the Company’s directors and officers have occurred:
| · | As of September 13, 2022, Kevin G. Malone resigned from all positions with the Company, including but not limited to those of President, Chief Executive Officer, Treasurer, Chief Financial Officer, Secretary and Director. |
| · | As of September 13, 2022, Mark Croskery was appointed as the Company’s President, Chief Executive Officer, Treasurer, Chief Financial Officer and Director. |
| · | As of September 13, 2022, Boris Goldstein was appointed as Secretary and Director. |
ITEM 5.02. DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS
Kevin G. Malone resigned from all positions with the Company, effective as of September 13, 2022 including those of President, Chief Executive Officer, Chief Financial Officer, Treasurer, Secretary Director. The resignations were not the result of any disagreement with the Company on any matter relating to the Company’s operations, policies or practices.
On September 13, 2022, Mark Croskery was appointed as the Company’s President, Chief Executive Officer, Chief Financial Officer, Treasurer and Director.
On September 13, 2022, Boris Goldstein was appointed as the Company’s Secretary and Director.
The biographies for Mssrs. Croskery and Goldstein are set forth below:
Mr. Mark Croskery, age 40, has fifteen (15) years of experience in financial services, wealth management, investment banking, private equity, financial advisory & consulting in Jamaica and the Caribbean, and as a trusted advisor to many businesses and individuals. He founded Croskery Capital Limited in 2019, as a consulting company in Jamaica offering advisory services to high-growth or distressed businesses. Throughout his career he has been known for guiding financial literacy, building strong relationships, and creating many financial firsts in Jamaica, such as equity research for J$ stocks and bringing US$ stocks or trading in US$ stocks to Jamaica for Jamaicans. Mr. Croskery was central in taking the Jamaica Stock Exchange (JSE: JSE) public in June of 2013.
Dr. Boris Goldstein, age 58, has thirty (30) years of experience in cavitation technologies, hydrojet slotting technologies, oil sand technologies, medical sensors, digital, electronic exchanges, and diagnostics. Dr. Goldstein is the founder of GrapheneCA. Dr. Goldstein is also a founder and Chairman of Brain Scientific Inc. (OTC: BRSF), a publicly traded medical device company and its subsidiary Memory MD, Inc., which is focused on EEG and brain scan and storage with AI capabilities. Dr. Goldstein is a serial entrepreneur, having founded or co-founded over 20 private companies over the past 30 years. Dr. Goldstein is the founder in November 2016 and the president of High Technology Capital Fund and High Technology Capital Management LLC, and is a partner in High Accelerator, which helps build and support next generation technologies. Dr. Goldstein received his B.A., MBA and Ph.D. in Applied Mathematics from Latvian Technical University.
ITEM 5.06 CHANGE IN SHELL COMPANY STATUS.
As a matter of law, upon the closing of the Purchase Agreement, the Company is no longer considered a “shell company” as that term is defined in Rule 405 of the Securities Act of 1933, as amended. Rule 405 provides that:
Shell company. The term shell company means a registrant, other than an asset-backed issuer as defined in Item 1101(b) of Regulation AB (§229.1101(b) of this chapter), that has:
| (1) | No or nominal operations; and |
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| (i) | No or nominal assets; |
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| (ii) | Assets consisting solely of cash and cash equivalents; or |
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| (iii) | Assets consisting of any amount of cash and cash equivalents and nominal other assets. |
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Note: For purposes of this definition, the determination of a registrant’s assets (including cash and cash equivalents) is based solely on the amount of assets that would be reflected on the registrant’s balance sheet prepared in accordance with generally accepted accounting principles on the date of that determination.
We have determined that we were no longer a shell company at September 9, 2022, based upon the fact that we have more than nominal assets, other than cash and more than nominal operations.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. The following exhibits are either filed as a part hereof or are incorporated by reference. Exhibit numbers correspond to the numbering system in Item 601 of Regulation S-K.
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| Asset Purchase Agreement by and between the Company and Boris Goldstein dated September 9, 2022 | Filed herewith. | |
104 |
| Cover Page Interactive Data File (embedded within the Inline XBRL Document) |
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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 thereunto duly authorized.
| POWER AMERICAS RESOURCE GROUP LTD. | |||
| Dated: September 13, 2022 | /s/ MARK CROSKERY | ||
| By: | MARK CROSKERY | |
| Its: | Chief Executive Officer | ||
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EXHIBIT 10.01
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the “Agreement”) is made as of September 9, 2022, (the “Effective Date”) by and between BORIS GOLDSTEIN, an individual (the “Seller”) with an address located at 30211 Avenida de Las Banderas, Suite 200-2002, Rancho Santa Margarita, CA 92688, and POWER AMERICAS RESOURCE GROUP LTD., a Nevada corporation, with its principal office located at 265 Sunrise Highway, Suite 276, Rockville Centre, NY, 11570, (the “Buyer”). Each of the parties to this Agreement is individually referred to herein as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, Seller is the owner of various proprietary assets related to 3D/4D printing technology and nano tubes toner for 3D printing process (collectively, the assets acquired are hereinafter referred to as the “Purchased Assets”). Together the Assets create nano particles toner for 4D printing process and ability to print utilizing 3D printers; and,
WHEREAS, the Seller desires to sell and Buyer desires to purchase the Assets owned by Seller related to the formulation, manufacturing, sales, marketing distribution of those certain nano tubes materials and 3D/4D printing, including but not limited to know-how, trade secrets, supply lists and other assets and intellectual property of any kind, relating directly or indirectly to the manufacturing, nano tubes materials upon the terms and conditions as ser forth herein (collectively, all facets of the Seller’s operations shall be referred to hereinafter as the “Business”); and,
WHEREAS, Seller acknowledges that any and all rights, title and/or privilege, are being forever discharged, sold and transferred to Buyer; and,
WHEREAS, prior to Closing, Seller’s management shall enter into certain agreements relating to the continued operation of the Business and shall assume certain management and board positions with the Buyer; and,
WHEREAS, the foregoing recitals are true and accurate and express the intentions of the Parties hereto and are hereby incorporated by this reference into the Agreement; and,
NOW, THEREFORE, in consideration of the premises, the mutual covenants contained herein, and other good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:
Article 1
Purchase and Sale of Assets
1.1 Assets, Properties and Business to be Transferred. Subject to the terms and conditions of this Agreement, and on the basis of the representations and warranties hereinafter set forth, at the Closing (as hereinafter defined) Seller will sell, transfer, assign, convey and deliver to Buyer, and Buyer agrees to purchase from Seller, all of Seller’s Assets, rights, properties and business of Seller of every kind, nature, and description, real, personal and mixed, tangible and intangible relating to the formulation, manufacturing, sales, marketing distribution of its proprietary graphene and graphene-related materials and products, such Assets are more particularly described on Exhibit A attached hereto and made a part hereof for all purposes, in each case all assets, rights, properties and business shall be free and clear of all mortgages, liens, encumbrances, equities, claims and obligations to other persons of every kind and character except as hereinafter set forth. A complete list of the Purchased Assets being acquired pursuant to this Agreement is attached hereto as “Schedule A”. It is expressly understood that the sale of the Purchased Assets includes the following rights:
(a) Production Standards. Seller shall convey and transfer to Buyer any and all intellectual property and other intangible assets as may be necessary for Buyer to purchase, create and manufacture those proprietary graphene and graphene-related materials and products which Seller has manufactured in the past, including any and all supplier and/or vendor information, setting forth complete and accurate information relating to the acquisition of any and all raw materials related to the manufacturing of those proprietary graphene and graphene-related materials and any and all notes or documents related to the purchase, creation and manufacture of those proprietary graphene and graphene-related materials and products, including “know-how” and trade secrets;
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(b) World-Wide Rights. Buyer shall have the sole and exclusive world-wide right to distribute and sell, or to enter into various agreement with third parties to distribute and sell those proprietary graphene and graphene-related materials and products with the terms and conditions of any such agreements being determined by the Buyer at its sole discretion;
(c) Books and Records. All papers, documents, computerized databases, and records of Seller related to the Purchased Assets, including without limitation all, sales records, marketing records, purchase records, accounting and financial records, maintenance and production records, vendor lists and information.
Article 2
Purchase Price; Allocation and Restrictions
2.1 Purchase Price. The purchase price (“Purchase Price”) to be paid by Buyer for the Purchased Assets shall be Thirty Million (30,000,000) restricted shares (the “Shares”) of the Company’s common stock to be issued to Seller, or his assigns, concurrently with the Closing.
2.2 Restrictions. The Shares to be issued by Seller pursuant to this Agreement have not been registered and are being issued pursuant to a specific exemption under the Securities Act, as well as under certain state securities laws for transactions by an issuer not involving any public offering or in reliance on limited federal preemption from such state securities registration laws, based on the suitability and investment representations made by the Seller to Buyer. The Shares of to be issued by Buyer to Seller pursuant to this Agreement must be held and may not be sold, transferred, or otherwise disposed of for value unless such securities are subsequently registered under the Securities Act or an exemption from such registration is available, and that the certificates representing the Shares of the Buyer’s Common Stock issued pursuant to this Agreement will bear a legend in substantially the following form so restricting the sale of such securities:
The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and are “restricted securities” within the meaning of Rule 144 promulgated under the Securities Act. The securities have been acquired for investment and may not be sold or transferred without complying with Rule 144 in the absence of an effective registration or other compliance under the Securities Act.
Article 3
Liabilities
3.1 No Liabilities Assumed by the Buyer. The Buyer shall not assume or incur, and the Seller shall remain liable to pay, perform and discharge, all liabilities and obligations of the Seller (i) with respect to federal, state and local taxes of every kind and character including sales or use taxes resulting from (or in any way connected with) the operation of the Seller’s Business prior to the Closing Date (including any state or local taxes resulting from or in any way connected with the transactions contemplated by this Agreement), (ii) with respect to pending or threatened litigation, whether or not disclosed to the Buyer, including accrued fees, if any, of counsel in respect thereof, (iii) based upon, arising out of or otherwise in respect of any express or implied representation, warranty, agreement or guaranty to a customer, user or purchaser made or claimed to have been made by the Seller, or arising out of or due to, or asserted to be arising out of or due to, any product sold or service provided by the Seller on or prior to the Closing Date, including product liability claims relating thereto, (iv) for violations by the Seller of any statute, ordinance, regulation, order, judgment or decree, (v) under any contract, lease of the Seller as to which the Seller’s rights, benefits and privileges are not transferred and assigned to the Buyer and which Buyer has not expressly assumed on the Closing Date, (vi) for the payment of any of the Seller’s broker’s commissions, finder’s fees, investment banking fees or legal fees accrued and payable with respect to the sale of the Purchased Assets to the Buyer, (vii) not directly related to the Business of the Seller, (viii) owed to its shareholders or any affiliate of Seller or its shareholders, (ix) arising out of Seller’s breach of this Agreement including any representation or warranty contained herein. Notwithstanding anything herein to the contrary, Buyer shall assume all liabilities arising out of any unfilled customer orders outstanding at Closing and for which Buyer will be entitled to any future payments relating thereto.
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Article 4
Investigation
4.1 Investigation by Buyer of Seller’s Records and Documents. Buyer shall have the right during normal business hours and with reasonable notice at the office(s) of Seller to review and obtain copies of any and all documents relating to the Purchased Assets list including but not limited to title policies, deeds, leases, contracts, mineral claims, royalty agreements, intellectual property documents, permits, licenses, environmental reports, geology reports, assays, production reports, financial and operational reports and all other documents on the Purchased Assets list. In the event Buyer’s review of such documentation results in a determination that the asset is not suitable for Buyer’s purposes, Buyer may remove the related asset from the Purchased Assets list. In the event that the review of all records and documents demonstrates that the remaining Purchased Assets are insufficient to support the purchase thereof, Buyer reserves the right to terminate this Agreement.
Article 5
Representations and Warranties of the Seller
As an inducement to the Buyer to enter into this Agreement and to consummate the transactions contemplated hereby, and with the knowledge that the Buyer shall rely thereon, the Seller represents and warrants to the Buyer the following (both as of the Closing Date and as of the date hereof):
5.1 Status and Good Standing. Seller operating as a sole-proprietorship with full power to operate and to conduct the Business as the same exist at the date hereof. Seller is duly qualified to do business and is in good standing in every jurisdiction in which the nature of its business makes such qualification necessary.
5.2 Authorization. The Seller has full power and authority to authorize Seller to execute and deliver this Agreement, to consummate the transactions contemplated hereby and to take all actions required to be taken by Seller pursuant to the provisions hereof. This Agreement constitutes the valid and binding obligation of the Seller enforceable in accordance with its terms.
5.3 Non-Contravention. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (including, but not limited to, the Seller’s assignment to the Buyer of any contract), does or will violate, conflict with, result in breach of any material provision of, constitute a default under, result in the termination of or permit any third party to terminate (with or without notice, lapse of time or pursuant to any legal or equitable principle) or accelerate the performance required on the part of the Seller by the terms of, any material agreement or instrument (including, but not limited to, any contract) to which the Seller is a party or by which the Seller or any of its assets is subject or bound, or result in the creation or imposition of any lien, charge or encumbrance on or security interest in or restriction on the use of any of the Purchased Assets.
5.4 Governmental Approvals. Seller will make any and all filings with and obtain consent of or approval by any and all governmental, administrative or regulatory bodies, agencies, commissions or stockholders required in connection with the sale and transfer of the Purchased Assets by the Seller as contemplated hereby. Seller will identify any and all such filings and required approval after the execution of this Agreement.
5.5 Litigation. There are no private actions, suits, audits, proceedings, or investigations of any kind pending, or threatened, against the Seller or any of the Purchased Assets or relating to the Business of the Seller, nor is there any basis, therefore. There are no outstanding judgments, orders, writs, injunctions, or decrees of any court against or affecting the Seller or any of the Purchased Assets.
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5.6 Taxes. The Seller has filed (or caused to be filed), within the times and within the manner prescribed by law, all federal, state, local, foreign, and other tax returns and tax reports (“Tax Returns”) which are required to be filed by, or with respect to, the Business and assets of the Seller. Such Tax Returns are accurate, correct, and complete, reflect accurately all liabilities for taxes of Seller for the period covered thereby and all amounts shown as owing thereon have been, or are scheduled to be, paid. All federal, state, local and foreign income, profits, franchise, sales, use, occupancy, excise and other taxes and assessments (including interest and penalties) payable by, or due from, the Seller have been fully paid or adequately disclosed and fully provided for by adequate reserves on the books and on the financial statements of the Seller. There has been no prior examination of any Tax Return of the Seller and none is currently in progress. There are no outstanding agreements or waivers extending the statutory period of limitation applicable to any Tax Return of the Seller.
5.7 Tangible and Purchased Assets. Set forth on Schedule A attached hereto is a complete and accurate list of all the furniture, machinery, equipment, trade fixtures and other personal and real property which either is or may be deemed a material asset presently owned by Seller and material to the Business or necessary to the continued operation of the Business (hereinafter collectively the “Tangible Assets”). Notwithstanding the foregoing and anything herein to the contrary, Tangible Assets and Purchased Assets, as those terms are used herein Seller, on the Closing Date, will have good and marketable title to all Purchased Assets, free and clear of any other liens, claims, encumbrances, and security interests. Notwithstanding the foregoing, the Parties hereto agree that any such liens or other such liabilities in existence shall be fully satisfied concurrently upon the Closing. All Purchased Assets are sold “AS IS, WHERE IS,” with all faults. There are no implied warranties or representations by the Seller as to any of the Purchased Assets, including any warranty of fitness for a particular purpose, and any such implied warranty is hereby disclaimed.
5.8 Compliance with Law. Seller has no knowledge of any violation of any applicable law, ordinance or regulation including any Environmental Laws (as hereinafter defined). All permits, licenses and other governmental authorizations and approvals required to conduct the Business of the Seller and to use and occupy its premises have been obtained and are in full force and effect. There is no proceeding pending, or threatened, against the Seller which may result in the revocation, cancellation, suspension, or any adverse modification of any of such permits, licenses, governmental authorizations or approvals.
5.9 Purchased Assets Complete. Except for those assets of Seller not being purchased pursuant to this Agreement, the Purchased Assets constitute all of the material assets, intellectual property, if any, and rights used by the Seller in the conduct of its Business. Upon the transfer of the Purchased Assets to the Buyer at the Closing, the Buyer will own all of the assets and rights necessary for it to conduct the Business in a manner consistent with the manner in which the Seller conducted the Business on the date hereof and in which the Seller will conduct the Business on the Closing Date.
5.10 Warranties. The Seller has not given (or made) any warranties to third parties with respect to any products sold by it, or any services performed by it except for warranties implied by law.
5.11 No Changes Prior to Closing Date. Up to the Closing Date, the Seller will operate its Business in its normal and customary course. The Seller will not make any changes or disruptions to the Business which are not in line with the normal course of the operations of the Business.
5.12 Disclosure. Neither this Agreement nor any financial statements or any schedule, exhibit or certificate delivered to the Buyer or any document or statement in writing which has been supplied by or on behalf of the Seller, or by any of the Seller’s directors, officers, or agents in connection with the transactions contemplated hereby, contains any untrue statement of material fact, or omits any statement of a material fact necessary in order to make the statements contained herein or therein not misleading. There is no fact known to the Seller which materially and adversely affects the Business, or the prospects or financial condition of the Seller or its properties or assets, which has not been set forth in this Agreement or in the schedules or certificates in writing furnished in connection with the transactions contemplated by this Agreement. No representations of Seller as a result of this Agreement shall in anyway be construed as any promise or representation by Seller of financial performance of the Business after Closing.
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Article 6
Representations and Warranties of the Buyer
The Buyer represents and warrants to the Seller the following:
6.1 Status and Good Standing. The Buyer will be a corporation duly organized, validly existing and in good standing, under the laws of the State of Nevada. The Buyer has full power and authority under its articles of organization and regulations to own and lease its properties, to conduct its business as the same exists at the date hereof and, from and after the Closing Date, to operate and conduct the Business.
6.2 Authorization. The Buyer has full power and authority under its articles of organization and regulations all necessary action to authorize the execution and delivery of this Agreement and will have taken as of the Closing Date all necessary action to authorize the consummation of the transactions contemplated hereby. This Agreement constitutes the valid and binding obligation of the Buyer enforceable in accordance with its terms.
6.3 Restrictions. The Buyer is not subject to nor has knowledge of any restriction contained in any charter, bylaw, regulations, mortgage, lien, lease, agreement, instrument, order, judgment, decree, law, or regulation that would prevent the consummation of the transactions contemplated by this Agreement.
6.4 Disclosure. No statement of fact by the Buyer in this Agreement or in any written statement or certificate furnished or to be furnished to the Seller pursuant hereto or in connection with the transactions contemplated hereby contains or shall contain any untrue statement of a material fact or omits or shall omit to state a material fact necessary to make the statements herein or therein not misleading.
6.4 Government Approvals and Filings. The Buyer is not required to submit any notice, report or other filing with any governmental authority in connection with the transactions contemplated hereby. No other consent, approval, or authorization of any governmental or regulatory authority is required to be obtained by the Buyer in connection with its delivery and performance of this Agreement.
6.5 Broker. Seller acknowledges that Buyer has NOT retained a Broker.
Article 7
Covenants of the Seller
The Seller covenants, agrees and acknowledges as follows:
7.1 Operation in Ordinary Course. Up to the Closing Date, the Seller will operate at its Business in its normal and customary course. The Seller will not make any changes or disruptions to the Business which are not in line with the normal course of the operations of the Business.
7.2 Consents. The Seller shall act in good faith and use its best efforts to obtain, prior to the Closing Date, all consents, approvals and waivers of lessors, landlords, suppliers and such other third parties as may be requested by the Buyer as necessary to permit the assignment to the Buyer on the Closing Date of the Seller’s contracts and the consummation of the sale of the Purchased Assets to the Buyer as contemplated hereby.
7.3 Assets to be Sold. Seller hereby warrants that as of the date of execution of this Agreement there are no assets now owned by Seller that are not listed in the exhibits attached hereto and that at the time of Closing, except for those non-suitable assets removed from the list under the terms of this Agreement per Article 4.1, all assets owned by Seller on the lists attached hereto shall be transferred to Buyer.
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Article 8
Closing of Purchase and Sale/Effect of Termination
8.1 Closing. Closing of the purchase and sale provided for herein (the “Closing”) shall take place at on or before 4:00 P.M., September 30, 2022, or at such other date as the parties shall mutually agree upon (the “Closing Date”).
8.2 Effect of Termination. In the event of termination and abandonment of this Agreement, this Agreement shall forthwith become void and have no effect, without any liability on the part of any party hereto; provided, however, that nothing herein shall release any party from liability for any breach of this Agreement occurring prior to such termination.
Article 9
Closing Conditions/Deliveries at Closing
9.1 Conditions Precedent to Obligations of the Buyer. The obligations of the Buyer to proceed with the transactions contemplated hereunder to be consummated at the Closing are subject, at the option of the Buyer, to the fulfillment of each and all of the following conditions at or prior to the Closing Date:
(a) All of the representations and warranties of the Seller contained in Article 5 hereof shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) There shall have been delivered to the Buyer at the Closing a copy of the resolutions duly adopted by the board of directors and the shareholders of the Seller authorizing and approving the execution and delivery by the Seller of this Agreement, and the consummation by the Seller of the transactions contemplated hereby.
(c) All actions and proceedings hereunder and documents and other papers required to be delivered by the Buyer hereunder or in connection with the consummation of the transactions contemplated hereby, and all other related matters, shall have been approved by the Buyers legal counsel, as to their form and substance.
9.2 Conditions Precedent to Obligations of the Seller. The obligations of the Seller to proceed with the transactions to be consummated hereunder at the Closing, shall be subject, at the option of the Seller, to the fulfillment of each and all of the following conditions at or prior to but no later than the Closing Date or extension thereof agreed upon by the Parties:
(a) All of the representations and warranties of the Buyer contained in Article 6 hereof shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) There shall have been delivered to the Seller a copy of resolutions duly adopted by the members of the Buyer authorizing and approving the execution and delivery of this Agreement by the Buyer and authorizing the Buyer to consummate the transactions contemplated hereby.
(c) Buyer shall have delivered payment for the Purchase Price to the Seller pursuant to paragraph 2.1 above Thirty Million (30,000,000) shares of common stock of the Buyer.
(d) All actions and proceedings hereunder and documents and other papers required to be delivered by the Buyer hereunder or in connection with the consummation of the transactions contemplated hereby, and all other related matters, shall have been approved by Seller’s legal counsel, as to their form and substance.
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Article 10
Survival of Representations and Warranties; Indemnification
10.1 Survival of Representations and Warranties. All of the representations and warranties of the Buyer and the Seller contained in this Agreement shall survive the Closing.
10.2 Sellers Indemnity Agreement. Seller shall indemnify, defend, and hold harmless the Buyer from and against;
(a) Any and all liabilities and obligations (including without limitation, federal, state or other taxes of whatever kind, including sales or use taxes resulting from this transaction plus any assessments, interest and penalties thereon) of, or claims or causes of action against the Buyer, the Purchased Assets or the Seller which arise with respect to any period (or periods) of operation of the Business by the Seller ending on or prior to the Closing Date which are not specifically assumed by the Buyer pursuant to this Agreement.
(b) Except as otherwise provided hereinabove, any and all liabilities, obligations and/or losses resulting from any breach of any representation and warranty or nonfulfillment of any covenant on the part of the Seller to Buyer contained in this Agreement, or any other agreement, certificate or other instrument furnished or to be furnished to the Buyer by the Seller pursuant to this Agreement.
(c) Any and all liabilities, obligations and/or losses resulting from any Products Liability (as hereinafter defined) arising at any time with respect to any product sold by the Seller on or before the Closing Date. For the purposes of this Agreement, “Products Liability” means any liability to which the Seller (or the Buyer or any affiliate thereof as successor to the Business of the Seller) may become subject insofar as such liability is based upon, arises out of or is otherwise in respect of any express or implied representation, warranty, agreement or guaranty to a customer, user or purchase made or claimed to have been made by the Seller or arising out of or due to, or asserted to be arising out of or due to, any product sold by the Seller on or prior to the Closing Date.
(d) All actions, suits, proceedings, demands, assessments, judgments, costs, and expenses, including fees and disbursements of counsel, incident to any of the foregoing.
10.3 Buyer’s Indemnity Agreement. The Buyer shall indemnify, defend, and hold harmless the Seller from and against:
(a) Any and all liabilities and obligations (including without limitation, federal, state, or other taxes of whatever kind, but excluding any sales or use taxes resulting from this transaction or any assessments, interest and penalties thereon) of, or claims or causes of action against the Buyer, the Purchased Assets or the Seller which arise with respect to any period (or periods) of operation of the Business by the Buyer beginning after the Closing Date.
(b) Any and all liabilities, obligations and/or losses resulting from any material breach of any representation and warranty or nonfulfillment of any covenant on the part of the Buyer to Seller contained in this Agreement, or any other agreement, certificate or other instrument furnished or to be furnished to the Seller by the Buyer pursuant to this Agreement.
(c) Any and all liabilities, obligations and/or losses resulting from any Products Liability (as hereinafter defined) arising at any time with respect to any product sold by the Buyer after the Closing Date. For the purposes of this Agreement, “Products Liability” means any liability to which the Seller or the Buyer or any affiliate thereof as successor to any business of the Seller may become subject insofar as such liability is based upon, arises out of or is otherwise in respect of any express or implied representation, warranty, agreement or guaranty to a customer, user or purchaser made or claimed to have been made by the Buyer or arising out of or due to, or asserted to be arising out of or due to, any product sold by the Buyer after the Closing Date.
(d) All actions, suits, proceedings, demands, assessments, judgments, costs and expenses, including fees and disbursements of counsel, incident to any of the foregoing.
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10.4. Indemnification Procedure. The indemnified party shall give the indemnifying party prompt written notice of the assertion of any third-party claim of which the indemnified party has knowledge, which is covered by the indemnity agreement set forth above. The indemnifying party will undertake the defense thereof by representatives chosen by the indemnifying party, but acceptable to the indemnified party in its reasonable discretion. If the indemnifying party, within a reasonable time after notice of any such claim fails to defend, the indemnified party will have the right to undertake the defense, compromise, or settlement of such claim on behalf of and for the account and risk of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such claim at any time prior to settlement, compromise, or final determination thereof. Anything in this Section 8.4 to the contrary withstanding, if there is a reasonable probability that a claim may materially and adversely affect the Buyer other than as a result of money damages or other payments, the Buyer shall have the right, at the cost and expense of the indemnifying party, to defend, compromise, or settle such claim. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction, or a settlement shall have been consummated, or the parties shall have arrived at a mutually binding agreement, with respect to each separate third party claim indemnified hereunder, the indemnified party shall forward to the indemnifying party notice of any sums due and owing by the indemnifying party with respect to such claim and the indemnifying party shall pay such sums to the indemnified party in cash or by certified check, within thirty (30) days after the date of such notice.
10.5 Liability Limitations. No party shall have any liability under this Agreement unless notice of such claim is given on or before the latter of (i) the second anniversary of the Closing Date or (ii) the second anniversary of the date on which such claim accrued. However, claims may be asserted with respect to Product Liability matters, tax matters, environmental matters, or ERISA matters at any time on or before the date upon which the loss or liability to which any such claim may relate is barred by all applicable statutes of limitation.
Article 11
Miscellaneous
11.1 Publicity. Except as otherwise required by law, none of the parties hereto shall issue any press release or make any other public statement, in each case relating to or in connection with or arising out of this Agreement or the matters contained herein, without obtaining the prior written approval of all parties hereto as to the contents and the manner of presentation and publication thereof.
11.2 Non-Disclosure. Buyer agrees not to disclose to others any confidential or proprietary information of Seller acquired during the course of discussions, negotiations, and investigation of the business of Seller, except as may be specifically authorized in writing by a duly authorized representative of Seller. The confidential or proprietary information in this context includes but is not limited to the following: financial statements, tax returns, business plans, loan applications, customer lists, and product pricing. Buyer also agrees to do all things necessary to prevent any of Buyer’s employees, representatives, and agents from disclosing any such information to third persons. Buyer further agrees to use any confidential or proprietary information disclosed to Buyer solely for the purpose of determining whether to purchase the business of Seller. On termination of this Agreement, Buyer shall surrender to Seller all originals and all copies of such information in Buyer’s possession. Buyer and Seller agree that the confidential or proprietary information shall not include any information that is already known to Buyer; is or becomes publicly known through no wrongful act of Buyer or by Buyer’s employees, representatives, or agents; or is approved for release by Buyer by written authorization from Seller.
11.3 Knowledge. As used in this agreement, the terms “knowledge”, “information” and “belief”, with respect to the Buyer or Seller, means the actual knowledge, information, or belief, as the case may be, after due inquiry of any of its members, officers, directors or shareholders.
11.4 Gender. All pronouns and any variations thereof refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.
11.5 Expenses. Except as otherwise specifically provided herein, the Buyer, and the Seller shall pay their own respective expenses, including the fees and disbursements of their respective counsel in connection with the negotiation, preparation and execution of this Agreement and the consummation of the transactions contemplated hereby.
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11.6 Entire Agreement. This Agreement, including all schedules and exhibits hereto, constitutes the entire agreement of the parties with respect to the subject matter hereof. This Agreement may not be modified, amended, or terminated except by a written instrument specifically referring to this Agreement signed by all of the parties hereto.
11.7 Waivers and Consents. All waivers and consents given hereunder shall be in writing. No waiver by any party hereto of any breach or anticipated breach of any provision hereof by any other party shall be deemed a waiver of any other contemporaneous, preceding or succeeding breach or anticipated breach, whether or not similar, on the part of the same or any other party.
11.8 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been given only if and when (i) personally delivered or (ii) three (3) business days after mailing, postage prepaid, by certified mail or (iii) when delivered (and receipted for) by an overnight delivery service, addressed to the address as set forth in the preamble hereto. The Seller or the Buyer may change its address for the giving of notices and communication by written notice to the other party in conformity with the foregoing.
11.9 Rights of Third Parties. All conditions of the obligations of the parties hereto, and all undertakings herein, are solely and exclusively for the benefit of the parties hereto and their successors and assigns. No other person or entity shall have standing to require satisfaction of such conditions or to enforce such undertakings in accordance with their terms, or be entitled to assume that any party hereto will refuse to consummate the purchase and sale contemplated hereby in the absence of strict compliance with any or all thereof. No other person or entity shall, under any circumstances, be deemed a beneficiary of such conditions or undertakings, any or all of which may be freely waived in whole or in part, by mutual consent of the parties hereto at any time, if in their sole discretion they deem it desirable to do so.
11.10 Headings. The Article and Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
11.11 Governing Law. The interpretation and construction of this Agreement, and all matters relating hereto, shall be governed by the laws of the State of Nevada, with no effect given to the principles of conflicts of law.
11.12 Parties in Interest. This Agreement may not be transferred, assigned, pledged, or hypothecated by any party hereto, other than by operation of law or with the written consent of the other party hereto. This Agreement shall be binding upon and shall inure to the benefit of the party hereto and their respective successors and permitted assigns. All assignments or attempted assignments shall be deemed valid only if in writing.
11.13 Counterparts. This Agreement may be executed in multiple counterparts, all of which taken together shall constitute one instrument.
11.14 Amendments. This Agreement may not be changed orally, but only by an agreement in writing signed by the Buyer and the Seller.
11.15 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof will not in any way be affected or impaired thereby.
11.16 Settlement of Disputes. The following agreements are made with respect to the settlement of disputes arising under the terms and conditions of this Agreement:
(a) If a dispute arises out of or relates to this Agreement (including Exhibits), or the breach or default of this Agreement, the parties shall first, in good faith, attempt to negotiate a settlement of that dispute, breach or default.
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(b) If the dispute, breach, or default cannot be settled through negotiation, the parties agree and shall proceed to binding arbitration through the American Arbitration Association in accordance with its Commercial Arbitration Rules under the Federal Arbitration Act, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
(c) Any provisional remedy (including injunctive relief) which a party to this Agreement may want to elect shall be available notwithstanding the provisions relating to arbitration of disputes. Any party may seek such provisional remedy from the appropriate court of law pending arbitration, and such proceeding in which the provisional remedy was sought will then be stayed pending the final award of the arbitration.
(d) The expenses of arbitration conducted pursuant to this paragraph shall be born by the parties in such proportions as the arbitrator(s) shall decide.
11.17 Negotiation of the Agreement. This Agreement was fully reviewed and negotiated on behalf of each party by legal counsel representing their interests and shall not be construed against the interests of either party as the drafter of this Agreement.
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SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement on this 9th day of September 2022.
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| SELLER: |
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| By: | Boris Goldstein |
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| BUYER: |
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| POWER AMERICA RESOURCE GROUP LTD. |
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| By: | Kevin Malone |
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| Its: | Chief Executive Officer |
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EXHIBIT A
Purchased Assets
The Purchased Assets shall include without limitation the following:
| 1. | Nano particles and single carbon nano tubes proprietary toner formula for 3D/4D printing (Nanoengineering design of the chemical and physico‐mechanical properties of cement enhancement). |
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| 2. | Design of propriety mixture column for 3D/4D printing |
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| 3. | Software platform for remotely control of 3D printer for construction |
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| 4. | Artificial Intelligence platform for safety of 3D printing sites during construction |
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| 5. | Engineering materials for remotely control nozzles during 3D printing process |
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| 6. | All of the intangible assets, including (i) specifications, processes, know-how, blueprints, drawings, designs, patterns, copyrights, information and documents (including logbooks) relating to research and development, whether or not completed, in each case relating to or used or useful in connection with the Business and (iii) all permits, royalties, claims, and licenses. Seller will provide all copies of all items listed in this paragraph including all electronic product, records, and programs. |
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| 7. | All books and records of Seller necessary to the conduct of business of Seller, including without limitation all customer files, sales information, customer service records, customer service, promotional literature and photographs, health and safety information, and training materials utilized by Seller. Books and records shall not include bank records, financial statements of Seller, tax returns of Seller, or any other records necessary for Seller’s compliance with federal and state laws and regulations unless such records are necessary for Buyer’s compliance with federal and state laws and regulations. |
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