EXHIBIT 10.6
PLAN OF PURCHASE AND AGREEMENT
Plan of Purchase and Agreement dated this 30 day of November, 1997,
by and between NUTEK, INC. a publicly held corporation, organized and
existing under the laws of the State of Nevada, with its principal office
at 00000 Xxxxxxxxx Xxxx., Xxxxx #000, Xxxx Xxxxxx, Xxxxxxxxxx, 00000 (the
'PURCHASER' and SRC INTERNATIONAL INC., a closely held corporation,
organized and existing under the laws of the State of Illinois, with its
principal Office at 000 X. Xxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 ("SRC")
and its SHAREHOLDERS, listed on Attachment A.
WHEREAS, the PURCHASER, By its Certificate of Incorporation, has authorized
capital stock consisting of 50,000,000 shares of voting Common Stock par
value $.001 per share, of which shares are issued and outstanding ("Purchasers"
Common Stock), and,
Whereas, SRC, by its Certificate of Incorporation, has authorized
capital stock consisting of 50,000,000 shares of voting Common Stock,
par value $.001 per share, of which are now issued and outstanding,
owned by its SHAREHOLDERS, as listed on Attachment A, and,
WHEREAS, the parties hereto desire to adopt a tax-free stock for
stock exchange of shares, and,
WHEREAS, the parties hereto believe many efficiencies can be accomplished
as a result of this Plan of Purchase, such as, development of a stronger
organization with greater access to capital for growth and lower financing
costs, diversification into new fields, improvement of competitive position,
and promotion of the expansion of the business and operations presently
conducted by the PURCHASER and SRC.
NOW, THEREFORE, in consideration of the foregoing and mutual agreements
hereinafter set forth, the parties hereto agree as follows:
1. Adoption of the Plan of Purchase
The parties hereto hereby adopt the plan of Purchase which will comprise
the acquisition by the PURCHASER of 100% of the outstanding voting
shares of S R C solely in exchange for voting shares of the Common Stock,
par value $.001 per share (the Common stock) of the PURCHASER upon and
subject to the terms and conditions of this Plan of Purchase as hereinafter
set forth. The parties hereto will promptly take such corporate and legal
action as in the Opinion of their respective officers may be necessary
or desirable to effect such Plan of Purchase.
2. Manner of Exchange of Shares
2.1 Subject to the terms and conditions of this Plan of Purchase
and Agreement, the manner of exchange of the outstanding shares of the
Common Stock of S R C for the shares of the PURCHASER shall be as follows:
2.1.1 The SHAREHOLDERS of S R C each agree to assign, transfer and deliver
all of the Common Stock of SRC owned by them, for a total ----- of shares,
constituting 100% of the outstanding shares of S R C and free and clear of
all liens, pledges, charges and encumbrances of every find, nature
and description to the PURCHASER on the closing (as hereinafter defined) in
exchange for the shares of the PURCHASER referred to in paragraph 2.1.2
pursuant to the Plan of Purchase and Agreement.
2.1.2 On the Closing Date, the PURCHASER hereby agrees to assign, transfer
and deliver to each SHAREHOLDER one share of NuTek, Inc. Common Stock for
every one share of S R C Common Stock delivered, for a total of --- shares.
1
3. Closing
The Closing provided for in this Agreement shall take place at the offices of
the PURCHASER on the day of November, 1997, or at such other place or such
other time as the parties shall mutually agree (the "Closing"),
4. Schedules of Properties, Contracts and Personnel Data to be Delivered by
S R C prior to Closing SRC shall deliver to the PURCHASER, as soon as practical
after the execution hereof, but in no event later than ten days before the
Closing, accurate lists and summary descriptions, certified correct by
authorized officers of SRC, of the following:
4.1 Real Property - All real property owned of record or beneficially or
leased by the Company, accompanied by the original or certified copies of the
deeds, leases, title insurance polices and other relevant documents.
4.2 Inventories - Inventories of materials, machinery, equipment,
furniture and fixtures, as recorded in the books of account of SRC.
4.3 Patents, Trademarks, Trade secrets, Etc. All patents, patent
applications, trademarks, trademark registration and applications thereof,
patent licenses, contracts with employees or others relating in whole or in
part to disclosure, assignments or patenting of any invention, discoveries,
improvements, processes, formulae or other know-how and all other
agreements relating to any item in any categories referred to herein owned
partially or totally by S R C, accompanied by the originals or certified
copies thereof.
4.4 Automobiles and Trucks - A schedule of all autos, trucks and other
vehicles owned or leased by SRC.
4.5 Insurance policies - A schedule of all insurance policies, respect to
S R C and covering its properties, building, machinery, equipment, furniture,
fixtures, and operations, accompanied by the originals or certified Copies
thereof.
4.6 Certain Salaried Employees - the names and current salary
rates of all of S R C's present officers, directors and employees whose
current annual salary rate is equivalent to $15,000 or more, together
with a summary of bonuses, additional compensation Such as an overriding
royalty, and other like benefits, if any, paid or payable to such persons
for the calendar years 1997 and 199a
4.7 Banks - The name or each bank, in which S R C has an account
or safety deposit box, the amount of deposit therein, and the names of
all persons authorized to draw thereon or have access thereto.
4.8 Powers of Attorney - The names of all persons, if any, holding powers
of attorney from S R C.
4.9 Stock Options - The names of all optionees, if any, holding
outstanding options to purchase the stock of SRC, the date and expiration date
thereof, the number of shares of stock subject thereto and the option price.
4.10 Loan and Credit Agreements - All mortgages, deeds of trust,
loan or credit agreements, performance bonds, and similar instruments
to which S R C is a party.
2
4.11 Government Authorization or License - All authorizations,
licenses or registrations or applications therefor not otherwise covered
herein, presently issued to registered in the name of, SRC, necessary
for the conduct of its business, accompanied by the originals or certified
copies thereof.
5. Documents to be Delivered to the PURCHASER By S R C at the Closing
5.1 At the Closing, S R C and/or the SHAREHOLDERS shall deliver
to the PURCHASER the following:
5.1.1 Certificates representing all of the outstanding shares of S R C, for
a total of shares, all of which shall be duly endorsed in blank, or, in the
alternative, with stock powers affixed thereto, in proper form for transfer,
with transfer taxes with respect to such shares, it applicable, paid, or a
check for the necessary costs thereof delivered.
5.1.2 Contracts for all of the officers and directors of SRC who are
remaining with the Company. Resignations for those who are not remaining.
5.1.3 The minute book, stock certificate book and ledger and other similar
corporate records, including the items listed in paragraph 4.1 through 4.11
hereof, it not previously delivered, together with all books, records, tax
returns and other similar items necessary or convenient to the conduct of the
business of the COMPANY.
5.1.4 The original or certified copies of the certificate of Incorporation
and By-Laws of S R C.
3.1.5 A management prepared Balance sheet and Statement of Profit and
Loss of S R C, for the period ending November 30, 1997, In conformity with
generally accepted accounting principles applied on a consistent basis.
6. Warranties of SRC and the SHAREHOLDERS that:
6.1 S R C and the SHAREHOLDERS represent, warrant and covenant
6.1.1 S R C is a corporation organized and existing under the
laws of the State of Illinois, with full authority and licenses wherever
required in order to conduct its business as presently being carried on
and with full power and authority to carry out the transaction contemplated
under this Plan of Purchase and Agreement.
6.1.2 The Common Stock of SRC to be delivered to the PURCHASER
has been validly issued, fully paid and non-assessable and that such shares
are, and shall be free and clear of all liens, pledges, charges, options,
calls, agreements and encumbrances of every kind, nature and description.
6.1.3 All corporate and other proceedings required to be taken
by or on its part to authorize it to carry this Plan of Purchase and
Agreement have been duly and properly taken and this Plan of Purchase
and Agreement is valid and binding obligation of S R C and the SHAREHOLDERS
and enforceable in accordance with its terms.
6.1.4. The original or certified copies of the Certificate of
Authority and by-Laws of S R C delivered to the PURCHASER are correct
and complete.
6.1.5 S R C has no material liabilities or obligations except those disclosed
on the financial statements of S R C delivered to the PURCHASER pursuant to
paragraph 5.1.5 hereof or incurred in the normal and regular conduct of its
business since the date of the aforesaid financial statements.
3
6.1.6 S R C is not a party to any written or oral, express or implied,
agreement of any kind, nature or description, except those required to be set
forth in paragraphs 4.1 through 4.11 hereof.
6.1.7 S R C has in all respects performed all obligations required to be
performed by it to date and is not in default under any agreement, lease,
or other instrument of which it is a party.
6.1.8 There are no actions, suits, proceedings, or investigations (whether
or not purportedly on behalf of S R C), threatened against or affecting S R C
or its properties, business, at law or in equity, or before any federal, state
municipal or other governmental department, Commission board, bureau,
agency, instrumentality, domestic or foreign.
6.1.9 SRC has complied in all material respects with all laws regu1ations
and judicial or administrative tribunal orders applicable to its business and
holds all licenses or permits required to conduct the business now being
conducted by it.
6.1.10 All federal, state and local tax returns required to be filed by
SRC have been duly filed. All federal, state, city, profits, franchise,
sales, use, occupation, property, excise or other taxes due have been duly
paid or adequately reserved for upon the books of S R C.
6.1.11 No representation or warranty by S R C or the SHAREHOLDERS in
this Plan of Purchase and Agreement or in any document delivered pursuant
to the terms hereof or in connection with the consummation of the
transaction contemplated hereby will contain any untrue statement of material
fact or omit to state a material fact necessary to make the statement contained
therein not misleading.
6.1.12 The representations and warranties of S R C and the
SHAREHOLDERS contained herein shall be true as of the Closing with the
same effect as though all such representations and warranties had been
made on and as of that date.
7. Documents to be Delivered to S R C by the PURCHASER at the Closing
7.1 At the Closing, the PURCHASER will deliver to each SHAREHOLDER or
any person or persons authorized, in writing signed by the SHAREHOLDER,
a certificate for the number of shares tendered, on a one for one basis,
of its Common Stock, in the name of each SHAREHOLDER, to which he/she is
entitled pursuant to the provisions of paragraph 2.1.2 hereof, with
transfer taxes and fees with respect to such shares, if applicable, paid,
provided, the PURCHASER receives or has received the shares of the common
stock of S R C to which it is entitled pursuant to paragraph 2.1.1 hereof.
8. Warranties of the Purchaser
8.1 The PURCHASER represents and warrants that:
8.1.1 The PURCHASER is a corporation duly organized and existing
and in good standing under the laws of the State of Nevada, with full
authority and licenses wherever required in order to conduct its business
as now being carried on, and with full power and authority to carry out
the transactions contemplated under this Plan of Purchase and Agreement.
8.1.2 The Common Stock of the PURCHASER to be delivered hereunder is,
and will be, validly issued, fully paid and non-assessable, and such stock
is and shall be free and clear of all encumbrances of every kind, nature or
description.
4
8.1.3 All corporate and other proceedings required to be taken
by or on its part to authorize it to carry out this Plan of Purchase and
Agreement have been duly and properly taken and this Agreement is a valid
and binding obligation of the PURCHASER enforceable in accordance with
its terms.
8.1.4 The PURCHASER has authorized capital stock consisting of
50,000,000 shares of Common Stock, par value $.001 per share of which
shares are issued and outstanding.
8.1.5 The PURCHASER has authorized preferred stocks outstanding which
amounts, terms and conditions are to be disclosed in writing.
8.1.6 There are no actions, suits, proceedings or investigations
pending or to the knowledge of the PURCHASER threatened against or
affecting the PURCHASER or its properties or business, at law, or in
equity, or before any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign.
8.1.7 The PURCHASER is not in default with respect to any order,
writ, injunction or decree of any court of federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
8.1.8 The PURCHASER has compiled in all material respect with all laws,
regulations and judicial or administrative tribunal orders applicable to
its business now being conducted by it.
8.1.9 The financial statements of the PURCHASER heretofore
delivered by it to S R C are true and correct in all material respects
and the PURCHASER has no 'material liabilities except those disclosed on
such financial statements or incurred in the normal and regular conduct
of its business since the date of such statements.
8.1.10 The representations and warranties of the PURCHASER
contained herein shall be true as of the Closing with the same effect
as though all such had been made on and as of that date.
8.1.11 The PURCHASER has in all respects performed all obligations
required to be performed by it to date and is not in default under any
agreement, lease, or other instrument of which it is a party
8.1.12 The PURCHASER represents and warranties that no rollback
(reverse split) of NuTek's Common Stock is intended at this time. If
a rollback (reverse split) is performed over the next two years, then
the maximum rollback (reverse split) that the shares issued to the
SHAREHOLDERS of S P C will be subject to is a one new share for two old
shares.
9. Investment Purpose
9.1 The SHAREHOLDERS each understand that the Common Stock to be acquired
by him/her pursuant to this Plan of Purchase and Agreement have not been
registered under the Securities Act of 1933, as amended (the 'Act'). Each
SHAREHOLDER represents that he/she is acquiring the Common Stock to be issued
to them pursuant to this Plan of Purchase and Agreement for investment and
not with a view to, or for sale in connection with, any distribution thereof
and that he/she has no present intention of or distributing the Common stock,
and understands that an appropriate legend is noted on each stock certificate.
5
9.2 The SHAREHOLDERS each agree that he/she will not offer, sell or
transfer or otherwise dispose of any of the Common Stock, acquired by him/her
pursuant to this Plan of Purchase and Agreement, except in compliance with
the Securities Act of 1933, as amended the Securities Exchange Act of 1934, as
amended and the Rules and Regulations promulgated there under by the
Securities and Exchange Commission.
10. Registration of the Common Stock
If the PURCHASER shall at any time register any securities for its own account
or for the account of others under the Act on Form S-I or any comparable
form, the PURCHASER will give the SHAREHOLDERS timely notice of such
registration (either prior to or upon the filing of a registration statement
in respect thereof) and promptly, after receipt of a written request made by
the SHAREHOLDERS or any one or more of them, within twenty (20) days after
giving of such notice, the PURCHASER at its sole expense, will register under
such Act all or part of such Common Stock covered by such request provided the
offering of such Common Stock may be deferred for a period not exceeding
forty (40) days from the effective date of such registration statement, if
the underwriter for securities to be sold by the PURCHASER is of the opinion
that a simultaneous offering of such Common Stock would adversely interfere
with the sale of such securities.
11. Assigns
All of the terms and provisions of this Plan of Purchase and Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
individual parties hereto and their respective executors, administrators,
heirs, successors and assigns, and the corporate parties hereto and their
respective successors and assigns.
12, Survival of Representations
All representations, warranties and agreements of the parties shall
survive the Closing.
13 Hold Harmless
The PURCHASER agrees to indemnify and hold harmless each shareholder,
officer, director and employee of SRC harmless, from any and all liabilities
to any other person(s) or entity, based on a claim arising out of such
status, during the time, he or she was a shareholder, officer, director or
employee of S R C.
14, Expenses
In connection with this Plan of Purchase and Agreement and the transactions
contemplated hereby, SRC and the SHAREHOLDERS shall pay their own expenses
and costs and the PURCHASER shall pay its own expenses and costs.
15. Further Assurances
Each of the parties hereto will at any time and from time to time before and
after the Closing, upon request of another party so to do, execute,
acknowledge, and deliver all such further acts, deeds, assignments,
transfers, conveyances, powers of attorney and assurances which may be
required to carry out the provisions of this Agreement.
6
16. Notices
Any notice or other document to be given hereunder or pursuant
hereto to any party shall be in writing and delivered personally or sent
by certified or registered mail, return receipt requested, to the
respective address of the party set forth in the first paragraph on the
first page of this Plan of Purchase and Agreement or listed on the
Attachment A (Shareholder's List).
17. Governing Law
The parties hereto agree that this agreement, regardless of where
executed or delivered, the laws of the State of Nevada shall govern the
interpretation of this Plan of Purchase and venue shall be in a court of
competent jurisdiction located in Las Vegas, Nevada.
18. Amendments and Counterparts
This instrument contains the entire agreement between the parties
and may not be altered, amended or terminated except in writing signed
by all parties. This Plan of Purchase and Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF. the parties hereto have caused this plan of Purchase and
Agreement to be duly executed as of the day and year written in the space
provided below or on Attachment A next to the respective lines for signatures.
NUTEK, INC. (PURCHASER)
ATTEST FOR NUTEK, INC.
By: By:
/s/ Xxxxxxx X. Xxxx
------------------------------
President/CEO, Secretary
Dated: November 30, 1997
NuTek, Inc.
Corporate Seal
S R C INTERNATIONAL, INC. (SELLER)
By: /s/ Xxxxx X. Xxxx
----------------------
Xxxxx Xxxx
President
Dated: November 30, 1997
S R C INTERNATIONAL, INC
CORPORATE SEAL
ATTEST FOR S R C INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxx
----------------------
Xxxxx Xxxx
Secretary
Dated: November 30, 1997
7
