THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
EXCHANGE OF STOCK AGREEMENT
AGREEMENT made this 24th day of November, 2002, by and between International
Surfacing, Inc., a New Jersey corporation ("International") and certain of its
stockholders listed on Exhibit A (the "Stockholders").
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
I. EXCHANGE OF SECURITIES. International owns all of the outstanding shares of
stock of Harmonica Acquisition Corporation ("Issuer"). Subject to the terms and
conditions of this Agreement, International intends to exchange its shares of
the Issuer (the "Issuer Shares") to the Stockholders in exchange for the
Stockholders' shares of International (the "International Shares"), which
constitute all of the outstanding equity securities of International.
2. REPRESENTATIONS AND WARRANTIES. Issuer and International represent and
warrant to Stockholders the following:
i. Organization. Issuer is a corporation duly organized, validly existing, and
in good standing under the laws of Delaware, and has all necessary corporate
powers to own properties and carry on a business, and is duly qualified to do
business and is in good standing in Delaware. All actions taken by the
Incorporators, directors and shareholders of Issuer have been valid and in
accordance with the laws of the State of Delaware.
ii. Capital. The authorized stock of Issuer consists of 50,000,000 shares of
common stock, $0.001 par value, of which approximately 30,000,000 shares are
issued and outstanding. All outstanding shares are fully paid and
non-assessable, free of liens, encumbrances, options, restrictions and legal or
equitable rights of other snot a party to this Agreement. At closing, there will
be no outstanding subscriptions, options, rights, warrants, convertible
securities, or other agreements or commitments obligating Issuer to issue or to
transfer from treasury any additional shares of its capital stock. None of the
outstanding shares of Issuer are subject to any stock restriction agreements.
All of the stockholders of Issuer have valid title to such shares and acquired
their shares in a lawful transaction and in accordance with the laws of
Delaware.
iii. Financial Statements. The Issuer's financial statements are to be found on
the website of the Securities and Exchange Commission. The financial statements
have been prepared in accordance with generally accepted accounting principles
consistently followed by Issuer throughout the periods indicated, and fairly
present the financial position of Issuer as of the date of the financial
statements. At closing, Issuer shall have no assets or liabilities.
iv. Absence of Changes. Since the date of the financial statements, there has
not been any change in the financial condition or operations of Issuer, except
changes in the ordinary course of business, which changes have not in the
aggregate been materially adverse.
v. Liabilities. Issuer does not have any debt, liability, or obligation of any
nature, whether accrued, absolute, contingent, or otherwise, and whether due or
to become due, that is not reflected on the Issuer's financial statements.
Issuer is not aware of any pending, threatened or asserted claims, lawsuits or
contingencies involving Issuer or its common stock. There is no dispute of any
kind between Issuer and any third party, and no such dispute will exist at the
closing of this Agreement. At closing, Issuer will be free from any and all
liabilities, liens, claims and/or commitments.
vi. Ability to Carry Out Obligations. Issuer has the right, power, and authority
to enter into and perform its obligation xxxxxx this Agreement. The execution
and delivery of this Agreement by Issuer and the performance by Issuer of its
obligations hereunder will not cause, constitute, or conflict with or result in
(a) any breach or violation or any of the provisions of or constitute a default
under any license, indenture, mortgage, charter, instrument, articles of
incorporation, bylaw, or other agreement or instrument to which Issuer or its
stockholders are a party, or by which they may be bound, nor will any consents
or authorizations of any party other than those hereto be required, (b) an event
that would cause Issuer to be liable to any party, or (c) an event that would
result in the creation or imposition or any lien, charge or encumbrance on any
asset of Issuer or upon the securities of Issuer to be acquired by Stockholders.
vii. Full Disclosure. None of the representations and warranties made by the
Issuer, or in any certificate of memorandum furnished or to be furnished by the
Issuer, contains or will contain any untrue statement of a material fact, or
omit any material fact the omission of which would be misleading.
vii. Contract and Leases. Issuer is not currently carrying on any business and
is not a party to any contract, agreement or lease. No person holds a power of
attorney from Issuer.
ix. Compliance with Laws. To the best of its knowledge, Issuer has complied
with, and is not in violation of any federal, state, or local statute, law,
and/or regulation.
x. Litigation. Issuer is not (and has not been) a party to any suit, action,
arbitration, or legal, administrative, or other proceedings, or pending
governmental investigation. To the best knowledge of the Issuer and
International, there is no basis for any such action or proceeding and no such
action or proceeding is threatened against Issuer and Issuer is not subject to
or in default with respect to any order, writ, injunction, or decree of any
federal, state, local, or foreign court, department, agency, or instrumentality.
xii. Conduct of Business. Prior to the closing, Issuer shall conduct its
business in the normal course, and shall not (1) sell, pledge, or assign any
assets (2) amend its Articles of Incorporation or Bylaws, (3) declare dividends,
redeem or sell stock or other securities, (4) incur any liabilities, (5) acquire
or dispose of any assets, enter into any contract, guarantee obligations of any
third party, or (6) enter into any other transaction.
xiii. Title. The Shares exchanged pursuant to this Agreement will be, at
closing, free and clear of all liens, security interests, pledges, charges,
claims, encumbrances and restrictions of any kind. None of such Shares are or
will be subject to any voting trust or agreement. No person holds or has the
right to receive any proxy or similar instrument with respect to such shares,
except as provided in this Agreement, the Issuer is not a party to any agreement
which offers or grants to any person the right to purchase or acquire any of the
securities to be issued pursuant to this Agreement. There is no applicable
local, state or federal law, rule, regulation, or decree which would, as a
result of the issuance of the Shares, impair, restrict or delay any voting
rights with respect to the Shares.
3. INVESTMENT INTENT. Stockholders are acquiring the Shares for their own
account for purposes of investment and without expectation, desire, or need for
resale and not with the view toward distribution, resale, subdivision, or
fractionalization of the Shares.
4. CLOSING. The closing of this transaction shall take place at the law offices
of Astor, Weiss, Xxxxxx & Xxxxxx, LLP, The Bellevue, Xxxxx Xxxxxx xx Xxxxxx,
Xxxxxxxxxxxx, XX 00000.
5. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By International
(1) Instructions to its Transfer Agent, Liberty Transfer Company for the
transfer of the Issuer Shares to the Stockholders, as listed on Exhibit A
hereto.
ii. By Stockholders
(1) All of the outstanding International Shares.
6. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph headings 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.
ii. No Oral Change. This Agreement and any provision hereof, may not be waived,
changes, modified, or discharged orally, but only by an agreement in writing,
signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
iii. Non Waiver. Except as otherwise expressly provided herein, 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 charged; and (i) the failure of any party to insist in 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 the 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 a 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.
iv. Time of Essence. Time is of the essence of this Agreement and of each and
every provision hereof.
v. Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings.
vi. 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.
vii. 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 part to whom notice is to be
given, or on the third day after mailing if mailed to the part to whom notice is
to be given, by first-class mail, registered or certified, postage prepaid, and
properly addressed, and by fax, to each parties last known address.
IN WITNESS WHEREOF, the undersigned has executed this Agreement this ___ day of
November, 2002
International Surfacing, Inc. International Surfacing, Inc.
As owner of the Issuer Shares As agent for the Stockholders
BY:__________________________ BY:________________________
