Exhibit 2.1
STOCK EXCHANGE & ACQUISITION AGREEMENT
STOCK EXCHANGE AGREEMENT (hereinafter sometimes referred to as the
"Agreement") dated as of September 12, 2002 by and among Real Time Cars, Inc, a
corporation organized under the laws of the State of Nevada ("RTCI") and
SiteWorks Inc (SRKS ) a corporation organized under the laws of the State of
Florida ("SRKS")
W I T N E S S E T H
WHEREAS, immediately prior to the date hereof, SRKS has
authorized 20,000,000 common shares and 500,000 preffereed shares with 100
common shares issued and outstanding; and
WHEREAS, RTCI desires to acquire all of the validly issued and
outstanding shares of SiteWorks Inc; (collectively referred to as the "SRKS"
Common Stock"), in exchange for an aggregate of all (100%) 12,000,000 shares and
500.000 prefeered shares in issued securities of RTCI 's Common Stock (the
"RTCI" Common Stock"), and
WHEREAS, SRKS desires to be acquired by RTCI in a combination as herein
set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto do hereby agree as
follows:
ARTICLE I
EXCHANGE OF SECURITIES
1.1 Issuance of Shares. Subject to all the terms and conditions of this
Agreement, SRKS agrees to exchange all fully paid and nonassessable shares of
its Common Stock for all of the RTCI Shares, held by the RTCI Shareholders. The
SRKS Common Stock will be issued directly to the RTCI Shareholders in a timely
many after the effective date of the Closing.
1.2 Exemption from Registration. The parties hereto hereby agree that
SRKS Common Stock to be issued by SRKS to the RTCI Shareholders shall be
restricted pursuant to Rule 144 and exempt from the registration requirements of
the Securities Act of 1933, as amended (the"Act"), and pursuant to Section 4(2)
of the Act and the rules and regulations promulgated thereunder. However SRKS is
in the process of registration (pursuant to an SB 2 filing) and when the filing
is effective, the shares shall immediately become freely trading and negotiable.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF RTCI
RTCI, jointly and severally, hereby represent and warrant to SRKS each
and all of the following:
2.1 Organization and Qualification. RTCI is a corporation duly
organized, validly existing and in good standing under the laws of Nevada; has
the full corporate power and authority to own or lease its property and carry on
its business as now being conducted; and is duly qualified to do business and is
in good standing in each jurisdiction in which the character of its properties
owned or leased or the nature of its business transacted makes such
qualification necessary, except where the failure to be so qualified would not
have a material adverse effect on the business, assets, properties, operations,
results of operations, condition (financial or otherwise) or prospects of RTCI
("Material Adverse Effect").
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2.2 Capitalization. The authorized capital stock of RTCI is 500,000
shares, issued and outstanding and held of record and beneficially by the RTCI
Shareholders. All of the outstanding shares of capital stock of RTCI have been
duly and validly issued, are fully paid and nonassessable, with no personal
liability attaching to the ownership thereof and in each case the issuance
thereof was in conformity with all applicable federal and state securities laws.
2.3 Ownership of the Stock and Authority. All the issued and
outstanding shares of RTCI held by the RTCI Shareholders are free and clear of
all claims, liabilities, liens, pledges, charges, encumbrances or equities of
any king. This Agreement constitutes, or when executed and delivered pursuant
hereto will constitute, the valid and legally binding obligations of each of the
RTCI Shareholders, enforceable against each of them in accordance with their
respective terms. There are no outstanding subscriptions, options, rights,
warrants, debentures, instruments, securities or other agreements or commitments
obligating RTCI to issue or to transfer from treasury any additional shares of
its capital stock of any class.
2.4 Subsidiaries. As of the date of this Agreement, RTCI has no
subsidiaries,.
RTCI does not own any interest in any other enterprise (whether or not
such enterprise is a corporation).
2.5 Financial Statements. At or prior to the Closing, and attached as Exhibit
2.5 hereof, SRKS shall be furnished with an audited financial statements of RTCI
(the "Financial Statements"), which shall present fairly, in all material
respects, the financial condition of RTCI as at the date reflected therein and
for the period then ending. There shall be no material debt, liability or
obligation of any nature, whether accrued, absolute, contingent or otherwise,
and whether due or to become due, that is not reflected in the Financial
Statements or otherwise reflected herein.
2.6 Litigation. There is no litigation, legal or administrative
proceeding, investigation or other action or proceeding of any nature pending
or, to the knowledge of RTCI, threatened against or affecting RTCI, directly or
indirectly in any way.
2.7 Certain Agreements. RTCI is not in default of any contract,
agreement, undertaking or arrangement to which it is bound whereby such default
could be reasonably expected to have a Material Adverse Effect.
2.8 Directors and Officers. Exhibit 2.8 to this Agreement, the text of
which is hereby incorporated herein by reference, contains the names and titles
of all directors and officers of RTCI as of the date of this Agreement.
2.9 Absence of Changes. Since the date of the balance sheet included in
Exhibit 2.5, there has not been any change in the financial condition or
operations of RTCI except changes in the ordinary course of business, which
changes have not in the aggregate been materially adverse.
2.10 Absence of Undisclosed Liabilities. Except as reflected in the
Financial Statements or as otherwise reflected herein, RTCI shall have, as of
the date thereof, no material liability or financial obligation, secured or
unsecured, whether accrued, absolute, contingent or otherwise.
2.11 Tax Returns. Except as described in Exhibit 2.11 hereto, RTCI,
within the times and in the manner prescribed by law, has filed all federal,
state and local tax returns required by law and has paid all taxes, assessments
and penalties due and payable. The provisions for taxes, if any, reflected in
the balance sheet included in Exhibit 2.5 are adequate and any and all federal,
state, county and local taxes for the year ending on the date of that balance
sheet and for all prior years, whether or not disputed. There are no present
disputes as to taxes of any nature payable by RTCI.
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2.12 Patents, Trademarks and Service Marks. Schedule 2.12 lists all
patents, trade names, trademarks and service marks, all patent, trademark and
service xxxx registrations or applications, both domestic and foreign, presently
owned, used or held by RTCI and all copyrights and copyright and registrations,
domestic and foreign, relating to materials or services sold, provided, leased
or licensed by RTCI in the course of its business, all of which are collectively
referred as the "Proprietary Rights". Schedule 2.12 also lists all licenses, if
any, granted by or to RTCI. Except as set forth in Schedule 2.12., RTCI has not
granted to any person, firm or corporation, any right, license or privilege in
any of the Proprietary Rights or know-how used in the business of RTCI nor have
such Proprietary Rights or know-how been revealed to any persons other than its
employees, customers and consultants. No Proprietary Rights or applications or
grants of licenses, set forth in Schedule 2.12, are subject to any pending or
threatened challenge, except as indicated in Schedule 2.12. RTCI possesses all
rights necessary to continue to conduct its business, and to utilize the
processes and market its products and services heretofore, utilized and marketed
in the conduct of such business, without payment of any royalties, fees or other
consideration, except as disclosed in Schedule 2.12. Each of the representations
and warranties made by X.X. in the Technology Agreement is true and correct in
all material respects.
2.13 Insurance Policies. Exhibit 2.13 to this Agreement, the text of
which is hereby incorporated herein by reference, is a description of all
insurance policies held by RTCI concerning its business and properties, all of
which such policies are in full force and effect with all premiums due thereon,
having been paid. All of these policies are in the respective amounts set forth
in Exhibit 2.13.
2.14 Compliance with Laws. RTCI has complied with, and is not in
violation of any applicable federal, state or local statutes, laws and
regulations (including, without limitation, any building, zoning or other law,
ordinance or regulation) affecting its properties or the operation of its
business.
2.15 Authority. The Board of Directors of RTCI has authorized the
execution of this Agreement and the consummation of the transactions
contemplated herein, and RTCI has full power and authority to execute, deliver
and perform this Agreement, and this Agreement is a legal, valid and binding
obligation of RTCI and is enforceable in accordance with its terms and
conditions. Attached hereto as Exhibit 2.15 are such Board Resolutions
authorizing the execution of this Agreement.
2.16 Ability to Carry Out Obligations. The execution and delivery of
this Agreement by RTCI and the performance by RTCI of its obligations hereunder
in the time and manner contemplated will not cause, constitute or conflict with
or result in; (a) any breach or violation of any of the provisions of or
constitute a default under any license, indenture, mortgage, charter,
instrument, article of incorporation, by-laws, or other agreement or instrument
to which RTCI is a party, or by which it may be bound, nor will any consents or
authorizations of any party other than those hereto be required, (b) an event
that would permit any party to any agreement or instrument to terminate it or to
accelerate the maturity of any indebtedness or other obligation of RTCI or, (c)
an event that would result in the creation or imposition of any lien, charge or
encumbrance on any asset of RTCI.
2.17 Full Disclosure. None of the representations and warranties made
by RTCI , or in any exhibit, certificate or memorandum furnished or to be
furnished by RTCI or in its behalf, contains or will contain any untrue
statement of material fact, or omit any material fact, the omission of which
would be misleading.
2.18 Assets. Exhibit 2.18 to this Agreement, the text of which is
hereby incorporated herein by reference, is a list, description and approximate
value of all of its property, of which RTCI has good and marketable title to,
and such property is subject only to liens and encumbrances created by the
security agreements and other contracts listed in Exhibit 2.18 hereto.
2.19 Material Contracts. Except as listed in Exhibit 2.19 hereto, and
except as otherwise disclosed herein, RTCI has no contracts to which it is a
party or by which it is bound.
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2.20 Employees. Exhibit 2.20 to this Agreement sets forth information
concerning the employees of RTCI, including the names of the executive officers
and managers of RTCI, the salaries paid to such persons, the total number of
employees of RTCI, and the general policies of RTCI concerning compensation of
employees as of date of this Agreement.
2.21 Indemnification. RTCI , jointly and severally, agree to defend and
hold SRKS harmless, and in respect to, any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorney fees, that they shall
incur or suffer, which arise out of, result from or relate to any breach of, or
failure by RTCI and/or the RTCI Shareholders to perform any of their respective
representations, warranties, covenants and agreements in this Agreement or in
any exhibit or other instrument furnished or to be furnished by RTCI and/or the
RTCI Shareholders under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SRKS
SRKS hereby represents and warrants to RTCI and RTCI Shareholders that:
3.1 Organization. SRKS is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida, having all
necessary corporate powers to own its properties to carry on its business as now
owned and operated by it, and is duly qualified to do business and is in good
standing in each of the states where its business requires qualification.
3.2 Capital. The authorized capital stock of SRKS is 200,000,000 shares
of Common Stock, $ .001 par value and 500,000 shares of Preferred stock, in one
or more series. There are, as of the date of this Agreement, approximately 100
Common Shares issued and outstanding. No shares of the Preferred Stock have been
designated or issued. All of the issued and outstanding shares of SRKS are duly
and validly issued, fully paid and nonassessable. There are no outstanding
subscriptions, options, rights, warrants, debentures, instruments, securities or
other agreements or commitments obligating SRKS to issue or to transfer from
treasury any additional shares of its capital stock of any class.
3.3 Subsidiaries. SRKS does not have any subsidiaries or own any
interest in any other enterprise (whether not such enterprise is a corporation),
except as indicated in Exhibit 3.3.
3.4 Directors and Officers. Exhibit 3.4 to this Agreement, the text of
which is hereby incorporated herein by reference, contains the names and titles
of all directors and officers of SRKS as of the date of this Agreement.
3.5 Financial Statements. Exhibit 3.5 to this Agreement, the text of
which is hereby incorporated herein by reference, includes the audited financial
statements of SRKS for the nine months ended September 30, 2003. Such financial
have been prepared in accordance with generally accepted accounting principles
and practices consistently followed SRKS throughout the period indicated, and
correctly sets forth the financial condition of SRKS as of the date thereof and
for the period then ended.
3.6 Absence of Changes. Since the date of the balance sheet included in
Exhibit 3.5, there has not been any change in financial condition or operations
of SRKS except changes in the ordinary course of business, which changes have
not in the aggregate been materially adverse.
3.7 Absence of Undisclosed Liabilities. As of the date the balance
sheet, SRKS did not have any material debt, liability or obligation of any
nature, whether accrued, absolute, contingent or otherwise, and whether due or
to become due, that is not reflected in such balance sheet.
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3.8 Tax Returns. Except as described in Exhibit 3.8 hereto, SRKS ,
within the times and in the manner prescribed by law, has filed all federal,
state and local tax returns required by law and has paid all taxes, assessments
and penalties due and payable. The provisions for taxes, if any, reflected in
the balance sheet included in Exhibit 3.5 are adequate for any and all federal,
state, county and local taxes for the period ending on the date of that balance
sheet and all prior periods, whether or not disputed. There are no present
disputes as to taxes of any nature payable by SRKS .
3.9 Investigation of Financial Condition. Without, in any manner,
reducing or otherwise mitigating the representations contained herein, RTCI
and/or its attorneys shall have the opportunity to meet with accountants and
attorneys to determine the financial condition of SRKS . SRKS shall make
available to RTCI and/or its attorneys, all books and records of SRKS . If the
transaction contemplated hereby is not completed, all documents received by RTCI
and/or SRKS and/or their attorneys shall be returned to the respective parties
and all information so received shall be treated as confidential.
3.10 Patents, Formulas, Trademarks and Service Marks. Schedule 3.10
lists all patents, formulas, trade names, trademarks and service marks, all
patent, formulas, trademark and service xxxx registrations or applications, both
domestic and foreign, presently owned, used or held by SRKS and all copyrights
and copyright and registrations, domestic and foreign, relating to materials or
services sold, provided, leased or licensed by SRKS in the course of its
business, all of which are collectively referred as the "Proprietary Rights".
Schedule 3.10 also lists all licenses, if any, granted by or to SRKS . Except as
set forth in Schedule 3.10., SRKS has not granted to any person, firm or
corporation, any right, license or privilege in any of the Proprietary Rights or
know-how used in the business of SRKS nor have such Proprietary Rights or
know-how been revealed to any persons other than its employees, customers and
consultants.
3.11 Compliance with Laws. SRKS has complied with, and is not in
violation of, applicable federal, state or local statutes, laws and regulations
(including, without limitation, any applicable building, zoning or other law,
ordinance or regulation) affecting its properties or the operation of its
business.
3.12 Litigation. Except as described in Exhibit3.12, SRKS is not a
party to any suit, action, arbitration or legal, administrative or other
proceeding, or governmental investigation pending or, to the best knowledge,
threatened against or affecting SRKS or its business, assets or financial
condition. SRKS is not in default with respect to any order, writ, injunction,
or decree of any federal, state, local or foreign court, department, agency or
instrumentality applicable to it. SRKS is not engaged in any lawsuits to recover
moneys due to it.
3.13 Authority. The Board of Directors of SRKS have authorized the
execution of this Agreement and the consummation of transactions contemplated
herein, and SRKS has full power and authority to execute, deliver and perform
this Agreement, and this Agreement is a legal, valid and binding obligation of
SRKS and is enforceable in accordance with its terms and conditions.
3.14 Ability to Carry Out Obligations. The execution and delivery of
this Agreement by SRKS and the performance by SRKS of its obligations hereunder,
in the time and manner contemplated, will not cause, constitute or conflict with
or result in; (a) any breach or violation of any of the provisions of or
constitute a default under any license, indenture, mortgage, charter,
instrument, articles of incorporation, by-laws, or other agreements or
instrument to which SRKS is a party, or by which it may be bound, nor will any
consents or authorizations of any party other than those hereto be required, (b)
an event that would permit any party to any agreement or instrument to terminate
it or to accelerate the maturity of any indebtedness or other obligation of SRKS
or (c) an event that would result in the creation or imposition of any lien,
charge or encumbrance on any asset of SRKS .
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3.15 Validity of SRKS Shares. The shares of SRKS Common Stock and the
SRKS Preferred Stock to be delivered to the RTCI Shareholders pursuant this
Agreement, when issued in accordance with the provisions of this Agreement, will
be duly authorized, validly issued, fully paid and nonassessable.
3.16 Full Disclosure. None of the representations and warranties made
by SRKS herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by SRKS or on its behalf, contains or will contain any untrue
statement of material fact, or omit any material fact, the omission of which
would be misleading.
3.17 Assets. SRKS has good and marketable title to all of its property
and such property is subject only to liens and encumbrances created by the
security agreements and other contracts listed in Exhibit 3.18 hereto.
3.18 Material Contracts. Except as listed in Exhibit 3.18 hereto, and
except as otherwise disclosed herein, SRKS has no material contracts to which it
is a party or by which it bound.
3.19 Indemnification. SRKS agrees to defend and hold RTCI and the RTCI
Shareholders harmless against and in respect of any and all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorney fees, that
they shall incur or suffer, which arise out of, result from or relate to any
breach of, or failure by SRKS to perform any of its respective representations,
warranties, covenants and agreements in this Agreement or in any exhibit or
other instrument furnished or to be furnished by SRKS under this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE RTCI SHAREHOLDERS
4.1 Share Ownership. Each RTCI Shareholder holds RTCI Shares, as set
forth in Schedule 4.1, hereto. Each RTCI Shareholder thereof owns of record and
such RTCI Shares beneficially, and such shares are not subject to any claims,
liabilities, liens, charges, encumbrances or equities of any kind. Each RTCI
Shareholder holds authority to exchange shares pursuant to this Agreement and
the delivery of the RTCI Shares to SRKS at the Closing, will transfer to SRKS
valid title thereto, free and clear of all claims, liabilities, liens, pledges,
charges, and equities of any kind.
4.2 Investment Intent. Each RTCI Shareholder understands and
acknowledges that the shares of SRKS Common Stock are being offered for exchange
in reliance upon the exemption provided in 4(2) of the Act for non public
offerings; and each RTCI Shareholder makes the following representations and
warranties, with the intent that the same may be relied upon in determining
suitability of each RTCI Shareholder as a purchaser of the SRKS Common Stock.
(a) The SRKS Common Stock is being acquired solely for the account of
each RTCI Shareholder, for investment purposes only, and not with a view toward,
or for sale in connection with, any distribution thereof and with no present
intention of distributing reselling any part of the SRKS Common Stock.
(b) Each RTCI Shareholder agrees not to dispose of his SRKS Common
Stock or any portion thereof unless and until counsel for SRKS shall have
determined that the intended disposition is permissible and does not violate the
Act or any applicable state securities laws, or the rules and regulations
thereunder.
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(c) Each RTCI Shareholder acknowledges that SRKS has made all documents
pertaining to all aspects of the Exchange Offer available to him/her and to
his/her qualified representatives, if any, and has offered such person(s) an
opportunity to discuss the Exchange Offer with an/the officer(s) of SRKS .
(d) Each RTCI Shareholder is knowledgeable and experienced in making
and evaluating investments of this nature and desires to accept the Exchange
Offer on the terms and conditions set forth.
(e) Each RTCI Shareholder is able to bear the economic risk of an
investment, as a result of the Exchange Offer, in the SRKS Common Stock.
(f) Each RTCI Shareholder understands that an investment in SRKS Common
Stock is not liquid, and each RTCI Shareholder has adequate means of providing
for current needs and personal contingencies and has no need for liquidity in
this investment.
4.3 Indemnification. Each RTCI Shareholder recognizes that the offer of
the SRKS Common Stock to him/her is based upon his/her representations and
warranties set forth and contained herein, hereby agrees to indemnify and hold
harmless SRKS against all liability, costs or expenses (including reasonable
attorney's) arising as a result of any misrepresentation made herein by each
RTCI Shareholder.
4.4 Legend. Each RTCI Shareholder agrees that the certificate
evidencing the SRKS Common Stock acquired pursuant this Agreement will have a
legend placed thereon stating that the SRKS Common Stock have not been
registered under the Act or any state securities laws and setting forth, or
referring to the restriction on transferability and sale of the SRKS Common
Stock.
ARTICLE V
COVENANTS
5.1 Investigative Rights. As between SRKS and RTCI, from the date of
this Agreement until the Closing Date, each party shall provide to the other
party, and such other party's counsels, accountants, auditors, and other
authorized representatives, full access during normal business hours and upon
reasonable advance written notice to all of each party's properties, books,
contracts, commitments and records for the purpose of examining the same. Each
party shall furnish the other party with all information concerning each party's
affairs as the other party may reasonably request.
5.2 Conduct of Business. Prior to the Closing, SRKS and RTCI shall
conduct their business in the normal course, and shall not sell, pledge, or
assign any assets, without the prior approval of the other party, except in the
regular course of business. Neither SRKS nor RTCI shall amend their Articles of
Incorporation or By-Laws, declare dividends, redeem or sell stock or other
securities, incur additional or newly-funded liabilities, acquire or dispose of
fixed assets, change employment terms, enter into any material or long-term
contract, guarantee obligations of any third party, settle or discharge any
balance sheet receivable for less than its stated amount, pay more on any
liability than its stated amount, or enter into any other transaction other than
in the regular course of business.
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ARTICLE VI
DOCUMENTS
6.1 Preparation. Subsequent to the Closing, SRKS will use its best
efforts to file the necessary documents (the "Documents") with the Securities
and Exchange Commission (the "Commission" in order to permit subsequent trading
of the SRKS Common Stock on the Bulletin Board. It is understood that such
necessary Documents may include one or more of the following documents; Form 10K
or Form 10Ksb, Form 10Q or Form 10Qsb, and/or Form 10 or Form 10sb. Each of
RTCI's and SRKS 's Officers and Directors shall cooperate in the prompt
preparation of the necessary Documents, which fully complies with the
requirements of the Commission, and shall each use its best efforts to receive
and respond to the comments of the Commission. Each of RTCI and SRKS agrees to
provide, promptly to the other, such information concerning its business and
financial statements and affairs as, in the reasonable judgement of the other
party or its counsel, may be required or appropriate for inclusion in such
Documents, or in any amendments or supplements thereto, and to cause its counsel
and auditors to cooperate with the other's counsel and auditors in the
preparation of such Documents. RTCI and SRKS each further agree to use its best
efforts to have such Documents declared effective, if necessary, by the
Commission as soon as may be practicable.
6.2 Warranties and Covenants of RTCI. RTCI represents and warrants to
SRKS that the Documents, insofar as it contains information pertaining to RTCI,
furnished by RTCI, for inclusion therein, will comply in all material respects
with requirements of the Commission, and the applicable rules and regulations,
and that such information will contain no untrue statement of any material fact
and will not omit to state any material fact required to be stated therein or to
make the statements therein not misleading. RTCI will promptly advise SRKS if at
any time, prior to the Closing Date, it shall obtain knowledge of any facts that
might make it necessary or appropriate to amend or supplement the Documents, in
order to make the statements therein not misleading or to comply with applicable
law.
6.3 Warranties and Covenants of SRKS . SRKS represent and warrant to
RTCI that the Documents, insofar as it contains information pertaining to and
furnished by SRKS , for inclusion therein, shall comply in all respects with the
requirements of the Commission, and applicable rules and regulations, and that
such information will contain no untrue statement of any fact will not omit to
state any fact required to be stated therein or necessary to make the statements
therein not misleading. SRKS will promptly advise RTCI if at any time prior to
the Closing Date they shall obtain knowledge of any facts that might make it
necessary or appropriate to amend or supplement the Documents in order to make
the statements therein not misleading or to comply with applicable law.
ARTICLE VII
CONDITIONS PRECEDENT TO SRKS 'S PERFORMANCE.
7.1 Conditions. SRKS 's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all conditions set forth in this
Article VII. SRKS may waive any or all of these conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
constitute a waiver by SRKS of any other condition of any of SRKS 's other
rights or remedies, at law or in equity, if RTCI shall be in default of any of
their representations, warranties or covenants under this Agreement.
7.2 Accuracy of Representation. Except as otherwise permitted by this
Agreement, all representations and warranties by RTCI and the RTCI Shareholders
in this Agreement, or in any written statement that shall be delivered to SRKS
by RTCI and RTCI Shareholders under this Agreement shall be true and accurate on
as of the Closing Date, as though made at that time.
7.3 Performance. RTCI and the RTCI Shareholders shall have performed,
satisfied, or complied with all covenants, agreements and conditions required by
this Agreement to be performed or complied with by it, on or before the Closing
Date.
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7.4 Absence of Litigation. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against RTCI or the RTCI Shareholders on or before the
Closing Date.
7.5 Directors of RTCI. Effective on the Closing, the number of Directors of RTCI
shall be increased, if necessary, and the Board of Directors shall include Xxxx
Xxxxxx.
7.6 Officer's Certificate and the RTCI Shareholders Certificate. RTCI
shall have delivered to SRKS a certificate, substantially in the form attached
hereto as Exhibit 7.6, dated the Closing Date, and signed by the President of
RTCI certifying that each of the conditions specified in Sections 7.1 through
7.5 have been fulfilled, and each of the RTCI Shareholders shall deliver a
certificate to the same effect.
ARTICLE VIII
CONDITIONS PRECEDENT TO RTCI'S AND RTCI SHAREHOLDERS' PERFORMANCE
8.1 Conditions. RTCI's and the RTCI Shareholders' obligations hereunder
shall be subject to the satisfaction, at or before the Closing, of all of the
conditions set forth in this Article VIII. RTCI and the RTCI Shareholders may
waive any or all of these conditions in whole or in part without prior notice;
provided, however, that such waiver of a condition shall constitute a waiver by
RTCI and the RTCI Shareholders of any other condition of or any of RTCI's or the
RTCI Shareholders' rights or remedies at law or in equity, if SRKS shall be in
default of any of its representations, warranties or covenants under this
Agreement.
8.2 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by SRKS in this Agreement or in
any written statement that shall be delivered to RTCI and/or the RTCI
Shareholders by SRKS under this Agreement shall be true and accurate on and as
of the Closing Date as though made at that time.
8.3 Performance. SRKS shall have performed, satisfied and complied with
all covenants, agreements and conditions required by this Agreement to be
performed or complied with by it, on or before the Closing Date.
8.4 Absence of Litigation. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against SRKS on or before the Closing Date.
8.5 Officer's Certificate. SRKS shall have delivered to RTCI and the
RTCI Shareholders a certificate, dated the Closing Date, signed by the President
of SRKS , certifying each of the conditions specified in Sections 8.1 through
8.5 have been fulfilled.
ARTICLE IX
CLOSING
9.1 Closing. The Closing (the "Closing") of this transaction shall be
held at the offices of SiteWorks Inc , or such other place as shall be mutually
agreed upon, on the fifth business day following the satisfaction of all of the
conditions to closing as set forth in Articles VII and VIII hereof, or on such
other date as shall be mutually agreed upon by the parties (the "Closing Date").
At the Closing:
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(a) Each RTCI Shareholder shall present the certificate(s) and/or
instrument(s) representing his/her RTCI Shares, being exchanged for
SRKS Common Stock and such certificates, instruments, if applicable,
will be duly endorsed and/or signed over to SRKS ; and
(b) Each RTCI Shareholder shall receive a certificate(s) representing
the number of shares of SRKS Common Stock for which the RTCI Shares
represents as stated in Schedule 4.1 hereof. It is understood and
agreed that at the Closing it will be sufficient to satisfy this
requirement by delivering to RTCI a copy of an appropriate instruction
letter, addressed to the transfer agent, and
(c) The parties shall produce such other documents and certificates as
required by Articles VII and VIII hereof.
ARTICLE X
MISCELLANEOUS
10.1 Captions and Headings. The Articles and paragraphs throughout this
Agreement are for convenience and reference only, and shall in no way be deemed
to define, limit or add to the meaning of any provision of this Agreement.
10.2 No Oral Change. This Agreement and any provisions hereof, may not
be waived, changed, modified or discharged orally, but it can be changed by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
10.3 Non-Waiver. Except as otherwise expressly provided, no waiver of
any covenant, condition or provision of this agreement shall be deemed to have
been made unless expressly in writing and signed by the party against whom such
waiver is; and (i) the failure of any party to insist on any one or more cases
upon the performance of any of the provisions, covenants or conditions of this
Agreement or to exercise any option herein contained shall not be construed as a
waiver or relinquishment for future of any such provisions, covenants or
conditions, (ii) the acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breach or failure of a covenant,
condition or provision hereof shall not be deemed waiver of such breach or
failure, and (iii) no waiver by any party of one breach by another party shall
be construed as a waiver with respect to any other or subsequent breach.
10.4 Termination of Agreement. This Agreement may be terminated
at any time before the Closing,
(a) By mutual consent of the parties hereto;
(b) By RTCI and SRKS (provided they are not in breach
hereunder) if any of the conditions precedent set forth in
Article VII hereof have not been met or waived in writing by
SRKS prior to the Closing;
(c) By RTCI and the RTCI Shareholders (provided they are not
in breach hereunder) if any of the conditions precedent set
forth in Article VIII hereof have not been met or waived in
writing by RTCI and the RTCI Shareholders, prior to the
Closing.
Unless the termination has been caused by the willful failure of SRKS ,
on one hand, or RTCI, and the RTCI Shareholders, on the other hand, as the case
may be, to perform or satisfy any agreement, undertaking or condition to be
performed or satisfied by it hereunder, SRKS shall have no further obligation or
liability to RTCI and the RTCI Shareholders under this Agreement, and RTCI and
the RTCI Shareholders shall have no further obligation or liability to SRKS
under this Agreement.
10.5 Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings. The terms of the letter of intent dated September 10, 2003,
attached, are hereby incorporated by reference to the extent permitted by law
and the regulatory authorities.
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10.6 Choice of Law. The laws of the State of Florida shall govern
this Agreement and its application.
10.7 Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement
shall be binding upon each of the parties named in and who has signed this
Agreement, immediately upon a majority of the common shareholders having signed
a counterpart hereof. For the purposes hereof-facsimile signatures shall be
deemed original and effective signatures.
10.8 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing, if mailed to the party to whom
notice is be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
RTCI Inc.
0000 X Xxxxx Xxx , Xxxxx Xxxxxxx 00000
Attn: C M Nurse, Chairman, CEO
Xxxx M Nurse/Steworks, Inc
0000 X Xxxxx Xxx
Xxxxx, Xxxxxxx 00000
With a copy to:
RTCI and the RTCI Shareholders:
RTCI Inc.
Att: C M Nurse , Chairman, CEO
10.9 Binding Effect. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
10.10 Effect of Closing. All representations, warranties, covenants and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion or other writing provided for in it, shall survive the
Closing of this Agreement.
10.11 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to the transaction described herein.
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10.12 Brokers. The parties hereto represent and agree that no broker
has brought about the aforementioned exchange for stock and no finder's fee has
been paid or is payable by any party. Each of the parties hereto shall indemnify
and hold the other harmless from and against any and all claims, losses,
liabilities or expenses which may be asserted against it as a result of its
dealings, arrangements or agreements with any such broker or person.
10.13 Announcements. SRKS and RTCI will consult and cooperate with each
other as to the timing and content of any announcements of the transactions
contemplated hereby to the general public or to employees, customers or
suppliers.
10.14 Expenses. Each party will pay its own legal, accounting and any
other out-of-pocket expenses reasonably incurred in connection with this
transaction, whether or not the transaction contemplated hereby is consummated.
10.15 Survival of Representations and Warranties. The representations,
warrants and agreements of the parties set forth in this Agreement shall survive
the Closing irrespective of any investigation made by or on behalf of any party.
10.16 Exhibits. As of the execution hereof, the parties hereto have
provided each other with the Exhibits provided for herein above, including any
items referenced therein or required to be attached thereto. Any material
changes to the Exhibits shall be immediately disclosed to the other party prior
to Closing.
10.17 Counsel. Each of the RTCI Shareholders and RTCI acknowledge that
the law firm of .............................. has only represented SRKS in
connection with this Agreement and the transaction contemplated hereunder, and
that each of the RTCI Shareholders and RTCI has been advised and has had the
opportunity to retain Counsel of its own choosing and each has done so to the
extent each has deemed necessary.
IN WITNESS WHEREOF, the undersigned have executed this as of the day
and year first above written.
Real Time Cars Inc. SiteWorks , Inc
------------------------- -----------------------------
By: ss C M Nurse By:ss Carl M Nurse
Chairman, CEO Chairman, CEO
Majority Shareholder Majority Shareholder
RTCI , Inc.
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