EXHIBIT 10.1
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:
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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).
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(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 Rregarding 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.
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(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 615,
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.
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(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;
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(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$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 $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.
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(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.
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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
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