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:________________________
