STOCK EXCHANGE AGREEMENT
This Agreement (hereinafter the "Agreement") is entered into effective
as of this 1st day of March, 2001, by and among GoThink!.com, Inc., a Nevada
corporation (hereinafter "Purchaser "); Ensurge, Inc.
("Seller"), and KT Solutions, Inc. ("the Company")
RECITALS:
1. The Company is a California corporation engaged in the
business of developing and marketing computer-based and on-line training
courses;
2. Seller owns all outstanding shares of the Company; (1,368,387)
3. Purchaser desires to acquire from the Seller and Seller desires to
convey to Purchaser, all of the issued and outstanding capital shares of the
Company, in exchange solely for certain shares of Purchaser, all upon the terms
and subject to the conditions of this Agreement and in accordance with the laws
of the States of California and Nevada.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms and covenants set
forth herein, the Purchaser, the Company, and the Shareholders approve and adopt
this Stock Exchange Agreement and mutually covenant and agree with each other as
follows:
1. Exchange and Delivery of Shares.
(a) At Closing the Seller shall transfer to the Purchaser 1,363,387
common shares of the Company, which shall constitute all of the issued
and outstanding shares of the common stock of the Company. ("KT
Shares"). At Closing or as soon as practicable after the Closing Date,
the Seller shall surrender for cancellation certificates representing
the KT Shares, against delivery of certificates representing the
Purchase Shares. Such certificate(s) shall be duly endorsed in blank by
the Shareholder or accompanied by duly executed stock powers in blank
with signatures guaranteed. Purchaser acknowledges that said
certificate(s) represent ownership of the Company only and that no such
shares have been or will be registered or issued with the intention of
a public market. All KT Shares shall be deemed to be owned by the
Purchaser from and after the Closing, and the holder of such
certificates previously evidencing the KT Shares outstanding
immediately prior to the Closing Date shall cease to have any rights
with respect to such KT Shares except as otherwise provided herein or
by law.
(b) At Closing, and in exchange for the transfer of the common stock of
the Company pursuant to subsection 1(a) hereof, the Purchaser shall
issue and deliver to the Seller, a total of Eight Million (8,000,000)
common shares of Purchaser (or such greater number, if necessary, to
equal not less than $10,000,000 in value, based on the bid price at
close of business on the day prior to the Closing Date), issued and
restricted under S.E.C. Rule 144 ("Purchase Shares'). A certificate for
the Purchase Shares shall be delivered to Seller as soon after closing
as Purchaser's transfer agent is able to prepare such certificate.
Seller acknowledges that the certificate delivered to Seller pursuant
to this Agreement shall bear a legend in substantially the following
form:
The shares of stock represented by this certificate
have not been registered under the Securities Act of
1933, as amended, or under the securities laws of any
state. The shares of stock have been acquired for
investment and may not be sold, offered for sale or
transferred in the absence of an effective
registration under the Securities Act of 1933, as
amended, and any applicable state securities laws, or
an opinion of counsel satisfactory in form and
substance to counsel for GoThink!.com that the
transaction shall not result in a violation of
federal or state securities laws.
2. Other Matters.
(a) After the date hereof and prior to Closing, there shall be no stock
dividend, stock split, recapitalization, or exchange of shares with
respect to or rights issued in respect of, the KT Shares and there
shall be no dividends paid on the KT Shares.
(b) All parties shall have received all requisite stockholder
approval of the matters set forth herein.
3. Representations of the Seller. The Seller hereby represents and
warrants effective this date and the Closing Date as follows:
(a) The KT Shares are free from claims, liens, or other encumbrances,
and the Seller has good title and the unqualified right to transfer and
dispose of such KT Shares.
(b) The Seller is the registered owner and holder of 100% of the
issued and outstanding shares of the Company.
(c) The Seller has no present intent to sell or dispose of the KT
Shares and is under no binding obligation, formal commitment, or
existing plan to sell or otherwise dispose of the KT Shares.
4. Representations Regarding the Company The Company and the Seller hereby
represent and warrant to the best of their respective knowledge and belief as
follows, which warranties and representations shall also be true as of the
Closing Date:
(a) The Seller is the record and beneficial owner all of the issued and
outstanding KT Shares.
(b) The Company has no outstanding authorized capital shares, warrants,
options or convertible securities other than those shares represented
by the KT Shares to be conveyed to Purchaser hereunder.
(c) The audited financial statements of the Company, as of and for the
period ending December 31, 2000, copies of which have been delivered to
the Purchaser (hereinafter referred to as the Financial Statements")
present fairly, in all material respects, the financial condition of
the Company as of the date thereof and the results of its operations
for the period covered. The Company has good title to all assets shown
on the Financial Statements subject only to dispositions and other
transactions in the ordinary course of business, the disclosures set
forth therein and liens and encumbrances of record. The Financial
Statements have been prepared in accordance with generally accepted
accounting principles, in the United States, consistently applied
(except as may be indicated therein or in the notes thereto).
(d) Since the date of the Financial Statements there have not been any
material adverse changes in the financial position of the Company
except changes arising in the ordinary course of business, which
changes will in no event materially and adversely affect the financial
position of the Company.
(e) The Company is not a party to any material litigation or any
governmental investigation or proceeding, not reflected in the
Financial Statements.
(f) The Company is in good standing in its jurisdiction of
incorporation.
(g) The Company has (or, by the Closing Date, will have filed) all
material tax, governmental and/or related forms and reports (or
extensions thereof) due or required to be filed and has (or will have)
paid or made adequate provisions for all taxes or assessments which
have become due as of the Closing Date.
(h) The Company has not materially breached any material agreement to
which it is a party. The Company has previously given copies or access
thereto of all material contracts, commitments and/or agreements to
which the Company is a party including all relationships or dealings
with related parties or affiliates.
(i) The Company has no subsidiary corporations.
(j) The Company has made its corporate financial records, minute books,
and other corporate documents and records available for review to
present management of GoThink!.com prior to the Closing Date, during
reasonable business hours and on reasonable notice.
(k) The performance of this Agreement does not materially violate or
breach any material agreement or contract to which the Company is a
party.
(l) All information regarding the Company which has been provided to
the Purchaser is true and accurate in all material respects.
5. Representations Regarding the Purchaser
(a) The Purchaser is a valid publicly traded corporation, which is
currently traded on the OTC "pink sheets" under the ticker symbol
"TNKC".
(b) The Purchaser is authorized to enter into this Agreement and to issue
and deliver the Purchase shares to the Seller.
(c) Since the last 10Q filed by the Purchaser, there have not been any
material adverse changes in the financial condition of the Purchaser.
(d) The Purchaser is not a party to or the subject of any pending
litigation, claims, or governmental investigation or proceeding not
reflected in the 10Q or otherwise disclosed herein, and there are no
lawsuits, claims, assessments, investigations, or similar matters, to
the best knowledge of the Purchaser, threatened or contemplated against
or affecting the Purchaser or its properties.
(e) The Purchaser is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; and
presently has and at Closing shall have the corporate power to own its
property and to carry on its business as then being conducted and shall
be duly qualified to do business in any jurisdiction where so required
except where the failure to so qualify would have no material negative
impact.
(f) The Purchaser has filed all federal, state, county and local
income, excise, property and other tax, governmental and/or related
returns, forms, or reports, which are due or required to be filed by it
prior to the date hereof and have paid or made adequate provision in
the 10Q for the payment of all taxes, fees, or assessments which have
or may become due pursuant to such returns or pursuant to any
assessments received. The Purchaser is not delinquent or obligated for
any tax, penalty, interest, delinquency or charge.
(g) The corporate financial records, minute books, and other documents
and records of the Purchaser have been made available to the Seller
prior to the Closing.
(h) The Purchaser has complied with the provisions for registration
under the Securities Act of 1933, as amended, and all applicable Blue
Sky Laws in connection with its initial public stock offering. There
are no outstanding, pending or threatened stop orders or other actions
or investigations relating thereto. The Purchaser is current with
respect to all applicable filing requirements with the SEC.
6. Closing. The Closing of the transactions contemplated herein shall take
place on such date (the "Closing" or "Closing Date") and at such place as
mutually determined by the parties hereto when all conditions precedent have
been met and all required documents have been delivered, which Closing is
expected to be on or about March 30, 2001, but not later than April 6, 2001,
unless extended by mutual consent of all parties hereto.
7. Conditions Precedent to the Obligations of the Seller. All obligations of the
Seller under this Agreement are subject to the fulfillment, prior to or as of
the Closing and/or the Effective Date, as indicated below, of each of the
following conditions:
(a) The representations and warranties by or on behalf of the Company
and the Purchaser contained in this Agreement or in any certificate or
document delivered pursuant to the provisions hereof shall be true in
all material respects at and as of the Closing as though such
representations and warranties were made at and as of such time.
(b) All parties shall have performed and complied with all covenants,
agreements, and conditions set forth herein, and shall have executed
and delivered all documents required by this Agreement to be performed
or complied with or executed and delivered by it prior to or at the
Closing.
(c) On or before the Closing, the board of directors of the Purchaser,
the Seller and the Company shall have approved in accordance with
applicable corporation law the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein.
(d) On or before the Closing Date, all parties shall have delivered
certified copies of resolutions of the board of directors and
shareholders of the respective companies approving and authorizing the
execution, delivery and performance of this Agreement and authorizing
all of the necessary and proper action to enable the parties to comply
with the terms of this Agreement including the election of the
Company's nominees to the board of directors of the Purchaser and all
matters outlined herein.
(e) The parties stockholders shall have duly approved all applicable
matters described in this Agreement in accordance with applicable law.
(f) At Closing, the sole existing officer and director of the Purchaser
shall have resigned in writing from all positions as director and
officer of the Purchaser upon the election and appointment of the
Company's nominees.
(g) The Purchase Shares to be issued to the Seller at Closing will be
validly issued, nonassessable and fully-paid under applicable
corporation law and will be issued in a nonpublic offering and isolated
transaction in compliance with all federal, state and applicable
securities laws.
8. Conditions Precedent to the Obligations of the Purchaser. All
obligations of the Purchaser under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions:
(a) The representations and warranties by the Seller and the Company
contained in this Agreement or in any certificate or document delivered
pursuant to the provisions hereof shall be true in all material
respects at and as of the Closing as though such representations and
warranties were made at and as of such time.
(b) The Seller and the Company shall have performed and complied with,
in all material respects, all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by them
prior to or at the Closing;
(c) The Seller shall deliver a letter commonly known as an "Investment
Letter," in a form approved by the Purchaser, acknowledging that the
Purchase Shares are being acquired for investment purposes.
9. Nature and Survival of Representations. All representations, warranties
and covenants made by any party in this Agreement shall survive the Closing and
the consummation of the transactions contemplated hereby for two years from the
Closing. All of the parties hereto are executing and carrying out the provisions
of this Agreement in reliance solely on the representations, warranties and
covenants and agreements contained in this Agreement and not upon any
investigation upon which it might have made or any representation, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein.
10. Documents at Closing. At the Closing, the following documents shall be
delivered:
(a) The Seller will deliver, or will cause to be delivered, to Purchaser
the following:
(i) a certificate executed by an officer of Seller to the
effect that to the best of his knowledge and belief all
representations and warranties made regarding the Company
under this Agreement are true and correct as of the Closing,
the same as though originally given to the Purchaser on said
date;
(ii) certificate from the jurisdiction of incorporation of the
Company dated at or about the Closing to the effect that
enSurge is in good standing under the laws of said
jurisdiction;
(iii) Investment Letters in the form approved by Purchaser
executed by the Seller;
(iv) such other instruments, documents and certificates,
if any, as are required to be delivered pursuant to the
provisions of this Agreement;
(v) all other items, the delivery of which is a condition
precedent to the obligations of the Purchaser, as set forth
herein; and
(b) The Purchaser will deliver or cause to be delivered to the Seller:
(i) stock certificates representing those securities of the
Purchaser to be issued as a part of the exchange as described
in Sections 2 and 6 hereof;
(ii) a certificate of the President/Secretary of the
Purchaser, to the effect that all representations and
warranties of the Purchaser made under this Agreement are true
and correct as of the Closing, the same as though originally
given to the Seller on said date;
(iii) certified copies of resolutions adopted by the
Purchaser's board of directors and the Purchaser's
stockholders authorizing the transactions described herein and
all related matters;
(iv) certificates from the jurisdiction of incorporation of
the Purchaser dated at or about the Closing Date that said
corporation is in good standing under the laws of said
jurisdiction;
(v) such other instruments and documents as are required
to be delivered pursuant to the provisions of this
Agreement;
(vi) resignation of all of the officers and directors of the
Purchaser; and all other items, the delivery of which is a
condition precedent to the obligations of the Seller, as set
forth in Section 11 hereof.
(vii) The Purchaser shall have funds in a minimum amount of
$250,000 available to the Company for it's growth capital
needs, and shall agree to use it's best efforts to acquire
additional capital in the amount of $750,000 to be used by, or
on behalf of the Company.
11. Miscellaneous.
(a) Further Assurances. At any time, and from time to time, after the
Closing Date, each party will execute such additional instruments and
take such action as may be reasonably requested by the other party to
confirm or perfect title to any property transferred hereunder or
otherwise to carry out the intent and purposes of this Agreement.
(b) Waiver. Any failure on the part of any party hereto to comply with
any of its obligations, agreements or conditions hereunder may be
waived in writing by the party to whom such compliance is owed.
(c) Termination. All obligations hereunder may be terminated at the
discretion of either party if (i) the closing conditions specified in
Sections 11 and 12 are not met by either party, unless extended, or
(ii) any of the representations and warranties made herein have been
materially breached.
(d) Amendment. This Agreement may be amended only in writing as
agreed to by all the parties hereto.
(e) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person
or sent by prepaid first class registered or certified mail, return
receipt requested.
(f) Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(h) Binding Effect. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties, their
respective heirs, administrators, executors, successors and assigns.
(i) Entire Agreement. This Agreement and the attached Exhibits
constitute the entire agreement of the parties covering everything
agreed upon or understood in the transaction. There are no oral
promises, conditions, representations, understandings, interpretations
or terms of any kind as conditions or inducements to the execution
hereof.
(j) Time. Time is of the essence.
(k) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force
and effect.
(l) Responsibility and Costs. All fees, expenses and out-of-pocket
costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred
by the parties hereto shall be borne solely and entirely by the party
that has incurred such costs and expenses unless such party has agreed
otherwise with any such person.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
Ensurge, Inc. (the "Seller")
-----------------------------------
By: Xxxx Xxxxx, Chief Financial Officer
GoThink!.Com, Inc. (the "Purchaser")
----------------------------------
By: Xxxxxxxx Xxxxxxx, President
KT Solutions, Inc. (the "Company")
-------------------------------
By: Xxxxxx X. Xxxxx, President
AMENDMENT TO STOCK EXCHANGE AGREEMENT
This Amendment is entered into by and between Knowledge Transfer
Systems, Inc. (KTSI) f/k/a GoThink!.Com, Inc. and Ensurge, Inc. (ENSG) which
shall amend certain terms of that Stock Exchange Agreement entered into between
the parties dated April 25, 2001.
1. All parties agree that all representations and warranties set forth in
the Stock Exchange Agreement are hereby updated and remain true and
accurate as of April 25, 2001.
2. The closing date set forth under said agreement is hereby amended to
April 25, 2001.
3. All parties acknowledge that all conditions to closing have been met,
and the parties are satisfied that all obligations of the parties have
been properly discharged, except for those post closing
responsibilities as set forth in the Stock Exchange Agreement.
Wherefore, the parties have executed this Amendment this 25th day of
April, 2001.
Knowledge Transfer Systems, Inc. Ensurge, Inc.
------------------------------- --------------------------
By: Xxxxxxxx Xxxxxxx, Pres. By: Xxxx Xxxxx, CFO
KT Solutions, Inc.
-------------------------------
By: Xxxxx Xxxxx, President.
