SHARE EXCHANGE AGREEMENT
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THIS SHARE EXCHANGE AGREEMENT (this "Agreement") is made and entered into
as of the 9TH day of August, 2005, by and among SUNCOAST NATURALS, INC., a
Delaware corporation ("Suncoast"), RADA Technologies, Inc., a Delaware
corporation ("RADA") and XXX XXXXXXX, XXXXXX XxXXXX, XXX XXXXXXX, and NEWPORT
CAPITAL PARTNERS, INC. (collectively "Shareholders").
WITNESSETH:
In consideration of the premises and the mutual terms and provisions set
forth in this Agreement, the parties hereto agree as follows:
ARTICLE ONE
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ACQUISITION AND EXCHANGE OF SHARES
Section 1.1. Acquisition of the RADA Shares. Subject to the terms and
conditions hereof, on the Closing Xxxx (as hereinafter defined), Shareholders
agree to assign, transfer, deliver and convey unto Suncoast, and Suncoast agrees
to acquire from Shareholders, all of Shareholders' right, title and interest in
and to the 1,000 shares of RADA's authorized and outstanding Common Stock now
owned by Shareholders (the "RADA Shares").
Section 1.2. Exchange of Shares: Nomination and Endorsement Agreement
(a) In exchange for the transfer of the RADA Shares, on the Closing Date,
Suncoast agrees to issue to Shareholders, subject to the terms and conditions
hereof and subject to revision as provided in Section 5.1(f) herein, 18,870,000
shares of Suncoast's Common Stock and 10,000 shares of its Class B Preferred
Stock. When exchanged, the shares issued to Shareholders hereunder shall be duly
authorized and validly issued, fully paid and non-assessable, and not issued in
violation of any preemptive rights.
(b) The shares of Suncoast's Common Stock issued to Shareholders in
connection herewith (the "Common Shares") shall, once issued, have the same
dividend rights, voting powers, preferences, priorities and other special rights
and powers as all other issued and outstanding shares of Suncoast's Common
Stock.
(c) The shares of Suncoast's Class B Preferred Stock issued to Shareholders
in connection herewith (the "Class B Shares") shall be voting shares and shall
have the voting rights, privileges and preferences as set forth in the
Certificate of Designation as filed with the Secretary of State of Delaware, a
copy of which is annexed hereto as Exhibit "A".
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Section 1.3. Exchange Procedures: Surrender of Certificates.
On the Closing Date, Shareholders shall surrender to Suncoast, or its duly
authorized designee, possession of all certificates representing the RADA
Shares, endorsed in blank or accompanied by duly executed stock powers
effectively transferring the RADA Shares to Suncoast. Thereupon, Suncoast shall
issue, in the name of Shareholders, pro rata as their interests shall appear,
certificates representing the Common Shares and the Preferred Shares.
Section 1.4. The Closing. The closing of the transactions contemplated
hereunder (the "Closing") shall take place at Suncoast's principal executive
office on or before 5:00 PM EDT on 30 August 2005, or at such other date, time
or place upon which the parties may mutually agree (the "Closing Date").
Section 1.5. Actions At Closing.
At the Closing, the following deliveries shall be made, each to be
deemed concurrent with all others:
(a) Suncoast shall deliver the following documents to Shareholders:
(1) A certificate signed by an authorized officer of
Suncoast stating that each of the representations and warranties
contained in Article Two is true and correct in all material
respects at the time of Closing with the same force and effect as
if such representations and warranties had been made at Closing;
(2) A copy of the resolutions duly adopted by the Board of
Directors and ratified by the stockholders of Suncoast
authorizing the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, duly
certified, as of the Closing Date, by the secretary of Suncoast;
(3) Certificates representing the Common Shares and the
Preferred Shares registered in the name of Shareholders; and
(4) The Nomination Agreement duly executed by Suncoast, a
copy of which is attached hereto as Exhibit "B"; and
(5) The opinion of Suncoast's counsel substantially in the
form of Exhibit "C" attached hereto.
(b) RADA and Shareholders shall deliver the following documents to
Suncoast:
(1) A certificate signed by an authorized officer of RADA
stating that each of the representations and warranties contained
in Article Three is true and correct in all material respects at
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the time of Closing with the same force and effect as if such
representations and warranties had been made at Closing;
(2) The certificates representing the RADA Shares, endorsed
in blank or accompanied by duly executed stock powers effectively
transferring the RADA Shares to Suncoast.
ARTICLE TWO
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REPRESENTATIONS AND WARRANTIES OF SUNCOAST
Section 2.1. Corporate Organization and Capital Stock.
(a) Suncoast is a corporation duly organized, validly existing and in good
standing under the law of the State of Delaware with full power and authority to
carry on its business as now being conducted.
(b) The authorized capital stock of Suncoast, consists of (i) 100,000,000
shares of Common Stock, $.001 par value, as of the date hereof, 8,289,000 shares
are issued and outstanding, and (ii) 1,000,000 shares of Preferred Stock, of
which, as of the date hereof, 100,000 shares designated as Class A Redeemable
Preferred Stock are issued and outstanding. All of the issued and outstanding
shares of Suncoast's capital stock are duly and validly issued and outstanding
and are fully paid and non-assessable. None of the outstanding shares of
Suncoast's capital stock has been issued in violation of any preemptive rights
of the current or past stockholders of Suncoast.
(c) The Common Shares and the Preferred Shares that are to be issued to
Shareholders hereunder, when so issued in accordance with the terms of this
Agreement, will be validly issued and outstanding, fully paid and
non-assessable.
Section 2.2. Authorization. On the Closing Date, (i) there will be no
provision in Suncoast's Amended Articles of incorporation or in its By-Laws, as
amended, which prohibits or limits Suncoasts ability to consummate the
transactions contemplated hereby, (ii) Suncoast shall have the right, power and
authority to enter into this Agreement and to consummate all of the transactions
and fulfill all of the obligations contemplated hereby and (iii) the execution
and delivery of this Agreement and the due consummation by Suncoast of the
transactions contemplated hereby will have been duly authorized by all necessary
corporate action of the Board of Directors and stockholders of Suncoast. This
Agreement constitutes a legal, valid and binding agreement of Suncoast
enforceable against Suncoast in accordance with its terms.
Section 2.3. No Conflict or Violation. Subject to the fulfillment of all of
the conditions set forth in Article Five hereof, neither the execution and
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby in accordance herewith, nor compliance by Suncoast with any
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of the provisions hereof will result in, as of the Closing Date: (i) a violation
of or a conflict with any provision of Suncoast's Amended Articles of
Incorporation or By-Laws, as amended, (ii) a breach of or default under any
term, condition or provision of any obligation, agreement or undertaking,
whether oral or written to which Suncoast is a party, or an event which, with
the giving of notice, lapse of time, or both, would result in any such breach,
(iii) a violation of any applicable law, rule, regulation, order, decree or
other requirement having the force of law, or order, judgment, writ, injunction,
decree or award, or an event which, with the giving of notice, lapse of time, or
both, would result in any such violation, or (iv) any person having the right to
enjoin, rescind or otherwise prevent or impede the transactions contemplated
hereby or to obtain damages from Suncoast or to obtain any other judicial or
administrative relief as a result of any transaction carried out in accordance
with the provisions of this Agreement.
Section 2.4. Litigation and Proceedings. There is no action, suit,
proceeding or investigation pending or, to the knowledge of Suncoast, threatened
which challenges the validity of this Agreement or the transactions contemplated
hereby, or otherwise seeks to prevent, directly or indirectly the consummation
of such transactions.
ARTICLE THREE
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REPRESENTATIONS AND WARRANTIES OF RADA AND SHAREHOLDERS
Section 3.1. Corporate Organization. RADA is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as it is now being
conducted.
Section 3.2. Authorization. RADA has full right, power and authority to
enter into this Agreement and to consummate or cause to be consummated all of
the transactions and to fulfill all of the obligations contemplated hereby The
execution and delivery of this Agreement and the due consummation by RADA of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action of the Board of Directors of RADA. This Agreement constitutes a
legal, valid and binding agreement of RADA and Shareholders enforceable against
RADA and Shareholders in accordance with its terms.
Section 3.3. No Conflict or Violation. Neither the execution and delivery
of this Agreement, nor the consummation of the transactions contemplated hereby
nor compliance by RADA and Shareholders with any of the provisions hereof will
result in: (i) a violation of or a conflict with any provision of the Articles
of Incorporation or By-Laws of RADA, (ii) a breach of or default under any term,
condition or provision of any obligation, agreement or undertaking, whether oral
or written to which RADA is a party, or an event which, with the giving of
notice, lapse of time, or both, would result in any such breach, (iii) a
violation of any applicable law, rule, regulation, order, decree or other
requirement having the force of law, or order, judgment, writ, injunction,
decree or award, or an event which, with the giving of notice, lapse of time, or
both, would result in any such violation, or (iv) any person having the right to
enjoin, rescind or otherwise prevent or impede the transactions contemplated
hereby or to obtain damages from RADA and Shareholders or to obtain
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any other judicial or administrative relief as a result of any transaction
carried out in accordance with the provisions of this Agreement.
Section 3.4. Litigation and Proceedings. There is no action, suit,
proceeding or investigation pending or, to the knowledge of RADA and
Shareholders, threatened which challenges the validity of this Agreement or the
transactions contemplated hereby, or otherwise seeks to prevent, directly or
indirectly, the consummation of such transactions.
Section 3.5. Title to RADA Shares. Shareholders possesses good and
marketable title to the RADA Shares and has full right to transfer the same as
contemplated herein. The RADA Shares are, and will be as of the Closing Date,
free and clear of any claims, lien, charges, encumbrances or other restrictions
or commitments of any nature whatsoever.
Section 3.6 Sale of Substantially All Assets. The RADA Shares do not
constitute all or substantially all of the assets of RADA.
ARTICLE FOUR
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AGREEMENTS OF PARTIES
Section 4.1. Agreements of the Parties.
(a) Each party shall, in the event it has knowledge of the occurrence, or
impending or threatened occurrence, of any event or condition which would cause
or constitute a breach (or would have caused or constituted a breach had such
event occurred or been known prior to the date hereof) of any of its
representations, warranties or agreements contained or referred to herein, give
prompt written notice thereof to all other parties and use reasonable efforts to
prevent or promptly remedy the same.
(b) Suncoast shall submit the following matters for the approval of the
Suncoast stockholders, acting on written consent in lieu of a Special Meeting,
as permitted by the Bylaws of Suncoast and the Corporation Law of the State of
Delaware (I) This Agreement, (ii) The Nomination Agreement; (iii) An amendment
to Suncoast's Articles of incorporation authorizing the increase in
capitalization to 100,000,000 Shares of Common Stock; (iv) authorizing the
issuance of 10,000 shares of a new class of Preferred Stock to be designated
"Class B Preferred Stock" with the rights, privileges and preferences set forth
in Section 1.2 above, and (v,) Such other amendments to Suncoast's Articles of
Incorporation and By-Laws, as amended, as may be required to effect this
Agreement and the transactions contemplated hereby The Board of Directors of
Suncoast shall (subject to compliance with its fiduciary duties as advised by
counsel) recommend to its stockholders the approval of such matters and shall
use reasonable efforts to obtain such stockholder approval
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(c) Each party shall use reasonable efforts to perform and fulfill all
conditions and obligations on its part to be performed or fulfilled under this
Agreement and to effect the exchange contemplated hereby in accordance with the
terms and conditions hereof.
ARTICLE FIVE
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CONDITIONS PRECEDENT TO THE EXCHANGE
Section 5.1. Conditions to the Obligations of Suncoast. Suncoast's
obligations to effect the exchange shall be subject to the satisfaction (or
waiver by RADA and Shareholders) of the following conditions prior to or on the
Closing Date:
(a) The representations and warranties made by Suncoast in this Agreement
shall be true in all material respects on and as of the Closing Date with the
same effect as though such representations and warranties had been made or given
on and as of the Closing Date;
(b) Suncoast shall have performed and complied in all material respects
with all of its obligations and agreements required to be performed prior to the
Closing Date under this Agreement;
(c) No temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the exchange
contemplated herein shall be in effect, nor shall any proceeding by any
authority or other person seeking any of the foregoing be pending. There shall
not be any action taken, or any statute, rule, regulation or order enacted,
entered, enforced or deemed applicable to the exchange which makes the
consummation of the exchange illegal; and
(d) All necessary approvals, consents and authorizations required by law
for consummation of the exchange including, without limitation, (i) approval by
the Suncoast stockholders of this Agreement, all other agreements required to be
submitted to such stockholders in connection herewith, and those amendments to
Suncoast's Amended Articles of Incorporation as are required to effect the
transactions herein contemplated, and (II) approval by the Suncoast Board of
Directors of this Agreement on or before August 30,2005, shall have been
obtained.
(e) RADA and Shareholders shall have received all executed documents
required to be received from Suncoast on or prior to the Closing Date; all in
form and substance reasonably satisfactory to RADA and Shareholders, including,
without limitation, the Nomination Agreement duly executed by Suncoast.
(f) In the event that the number of shares of Common Stock of Suncoast
shall exceed 11,830,000 on the date of Closing, the number of Common Shares to
be issued pursuant to Section 1.2 herein shall be increased by a number equal to
the number of shares outstanding on the date of Closing less 11,830,000.
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Section 5.2. Conditions to the Obligations of RADA and Shareholders. The
obligations of RADA and Shareholders to effect the exchange shall be subject to
the satisfaction (or waiver by Suncoast) of the following conditions prior to or
on the date of Closing:
(a) The representatives and warranties made by RADA and Shareholders in
this Agreement shall be true in all material respects on and as of the Closing
Date with the same effect as though such representations and warranties had been
made or given on and as of the Closing Date;
(b) RADA and Shareholders shall have performed and complied in all material
respects with all of its obligations and agreements required to be performed
prior to the Closing Date under this Agreement;
(c) No temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the exchange
contemplated herein shall be in effect, nor shall any proceeding by any
authority or other person seeking any of the foregoing be pending. There shall
not be any action taken, or any statute, rule, regulation or order enacted,
entered, enforced or deemed applicable to the exchange which makes the
consummation of the exchange illegal; and
(d) All necessary approvals, consents and authorizations required by law
for consummation of the shall have been obtained.
(e) Suncoast shall have received the opinion of RADA's counsel
substantially in the form of Exhibit D attached hereto.
(f) Suncoast shall have received all executed documents required to be
received from RADA and Shareholders on or prior to the Closing Date; all in form
and substance reasonably satisfactory to Suncoast.
ARTICLE SIX
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TERMINATION OR ABANDONMENT
Section 6.1. Mutual Agreement. This Agreement may be terminated by the
mutual written consent of the parties at any time prior to the Closing Date,
regardless of whether stockholder approval of this Agreement and the
transactions contemplated hereby shall have been previously obtained.
Section 6.2. Breach of Agreements. In the event there is a material breach
in any of the representations and warranties or agreements of any party, which
breach is not cured within thirty (30) days after notice to cure such breach is
given by the non-breaching party, then the non-breaching party, regardless of
whether stockholder approval of this Agreement and the transactions contemplated
hereby shall have been previous obtained, may terminate and cancel this
Agreement by providing written notice of such action to the other party hereto.
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Section 6.3. Failure of Conditions. In the event any of the conditions to
the obligations of either party are not satisfied or waived as specified in
Article Five hereof, and if any applicable cure period provided in Section 6.2
hereof has lapsed, then the party for whose benefit such conditions were imposed
may, regardless of whether stockholder approval of this Agreement and the
transactions contemplated hereby shall have been previously obtained, terminate
and cancel this Agreement by delivery of written notice of such action to the
other party on such date.
ARTICLE SEVEN
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MISCELLANEOUS PROVISIONS
Section 7.1. Notices. Any notice or other communication shall be in writing
and shall be deemed to have been given or made on the date of delivery in the
case of hand delivery, or three (3) business days after deposit in the United
States Registered Mail, postage prepaid, or upon receipt if transmitted by
facsimile telecopy or any other means, addressed (in any case) as follows:
(a) if to Suncoast:
Suncoast Naturals, Inc.
0000 XX 00xx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X.Xxxxxx
with a copy to:
Xxxxxx Xxxxx, Esq.
0 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX
(b) if to RADA and Shareholders:
RADA Systems, Inc.
0000 Xxxx Xxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
with copies to:
Xxxxx Law Associates
00 X Xxxx Xx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X Xxxxx III
or to such other address as any party may from time to time designate by notice
to the others.
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Section 7.2. Liabilities. In the event that this Agreement is terminated
pursuant to the provisions of Section 6.2 or Section 6.3 hereof on account of a
breach of any of the representations and warranties set forth herein or any
breach of any of the agreements set forth herein or any failure of conditions
precedent to the exchange herein contained, then the non-breaching party or the
party for whose benefit such conditions were imposed shall be entitled to
recover appropriate damages from the breaching party; provided, however, that
notwithstanding the foregoing. in the event this Agreement is terminated by
reason of a failure of a condition precedent set forth in Sections 5.1(c) or
(d), or Sections 5.2(c) or (d), no party hereto shall have any liability to any
other party for costs, expenses, damages or otherwise.
Section 7.3. Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes and cancels any and all prior
discussions, negotiations, undertakings and agreements between the parties
relating to the subject matter hereof.
Section 7.5. Headings and Captions. The captions of Articles and Sections
hereof are for convenience only and shall not control or affect the meaning or
construction of any of the provisions of this Agreement.
Section 7.6. Waiver. Amendment or Modification. The conditions of this
Agreement which may be waived may only be waived by notice to the other party
waiving such condition. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right at a
later time to enforce the same. This Agreement may not be amended or modified
except by a written document duly executed by the parties hereto.
Section 7.7. Rules of Construction. Unless the context otherwise requires:
(a) a term has the meaning assigned to it; (b) an accounting term not otherwise
defined has the meaning assigned to it in accordance with generally accepted
accounting principles; Cc) "or" is not exclusive; and (d) words in the singular
may include the plural and in the plural include the singular
Section 7.8. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall
be deemed one and the same instrument.
Section 7.9. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
administrators, successors and assigns, including any successor by merger,
reorganization or acquisition of substantially all the assets of a party hereto.
There shall be no third part'. beneficiaries hereof.
Section 7.10. Governing Law; Assignment. This Agreement shall be governed
by the law of the State of Delaware. This Agreement may not be assigned by
either of the parties hereto.
Section 7.11. Severability. Ant' provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction is, as to such
jurisdiction, ineffective to the extent of any such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions hereof, or affecting the validity enforceability or legality of such
provision in any other jurisdiction, unless the ineffectiveness of such
provision would result in such a material change as to cause completion of the
transactions contemplated hereby to be unreasonable.
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SIGNATURES
IN WITNESS WHEREOF, the undersigned have set their hand on the date first
above written.
SUNCOAST NATURALS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer
RADA TECHNOLOGIES, INC.
By: /s/ Xxx Xxxxxxx
XXX XXXXXXX, Chairman and CEO
/s/ Xxx Xxxxxxx
XXX XXXXXXX
/s/ Xxxxxx XxXxxx
XXXXXX XxXXXX
/s/ Xxx Xxxxxxx
XXX XXXXXXX
/s/ Rounsevelle X. Xxxxxx
ROUNSEVELLE X. XXXXXX
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