EXHIBIT 2.1
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.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 25th day of June, 2001, by and between RUSSIAN
XXXXXXX.XXX, INC., a California corporation, (the "ISSUER") and the shareholder
listed in Exhibit A attached hereto, (the "SHAREHOLDER"), which SHAREHOLDER owns
the issued and outstanding shares of KIK TECHNOLOGY INC. a California
corporation. ("KIK")
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
Agreement, the ISSUER agrees to issue to SHAREHOLDER, 16,700,000 shares of the
common stock of ISSUER, $.001 par value (the "Shares"), in exchange for 100% of
the issued and outstanding shares of KIK TECHNOLOGY INC., such that KIK
TECHNOLOGY INC. shall become a wholly owned subsidiary of the ISSUER.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to
SHAREHOLDER and KIK the following:
i. Organization. ISSUER is a corporation duly organized, validly existing,
and in good standing under the laws of California, 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 California. All actions
taken by the Incorporators, directors and shareholders of ISSUER have been valid
and in accordance with the laws of the State of California.
ii. Capital. The authorized capital stock of ISSUER consists of 100,000,000
shares of common stock, $.001 par value, of which 6,000,000 will be issued and
outstanding at time of closing. All outstanding shares are fully paid and non
assessable, free of liens, encumbrances, options, restrictions and legal or
equitable rights of others not 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 except
2,300,000 outstanding warrants to purchase the common stock of ISSUER
exercisable for a three (3) year period from and after June
15, 2001, at an exercise price per share of $0.05 (USD). Immediately following
the closing there will be 22,700,000 shares of common stock issued and
outstanding. None of the outstanding shares of ISSUER are subject to any stock
restrictions or agreements except as required by the Securities and Exchange
Commission ("SEC"). All of the shareholders of ISSUER have valid title to such
shares and acquired their shares in a lawful transaction and in accordance with
the laws of California.
iii. Financial Statements. The current balance sheet of ISSUER, and the
related statements of income and retained earnings for the period then ended are
filed with the SEC. 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 balance sheet and the financial statements, and the
results of its operations for the periods indicated.
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. At closing the 3,000,000 shares of common
stock previously acquired by A. Xxxx Xxxxxxx, Xx. along with any and all
indebtedness of said Dervaes to the Company will be cancelled.
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 ISSUERS' financial statement.
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 the 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 obligations under 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
shareholders 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 SHAREHOLDER.
vii. Full Disclosure. None of the representations and warranties made by
the ISSUER, or in any certificate or 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.
viii. Compliance with Laws. ISSUER has complied with, and is not in
violation of any federal, state, or local statute, law, and/or regulation
pertaining to ISSUER. ISSUER has complied with all federal and state securities
laws in connection with the issuance, sale and distribution of its securities.
ix. Litigation. ISSUER is not (and has not been) a party to any suit,
action, arbitration, or legal, administrative, or other proceeding, or pending
governmental investigation. To the best knowledge of the ISSUER, 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.
x. 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.
xi. Corporate Documents. Copies of each of the following documents, which
are true complete and correct in all material respects, are available to be
attached to and made a part of this Agreement:
(1) Articles of Incorporation;
(2) Bylaws ;
(3) Minutes of Shareholders Meetings;
(4) Minutes of Directors Meetings;
(5) List of Officers and Directors;
(6) Stock register and stock records of ISSUER and a current,
accurate list of ISSUER's shareholders.
xii. Documents. All minutes, consents or other documents pertaining to
ISSUER to be delivered at closing shall be valid and in accordance with the laws
of California.
xiii. Title. The Shares to be issued to SHAREHOLDER will be, at closing,
free and clear of all liens, security interests, pledges, charges, claims,
encumbrances and restrictions of any kind except as required by the SEC. 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 to SHAREHOLDER. There is no
applicable local, state or federal law, rule, regulation, or decree which would,
as a result of the issuance of the Shares to SHAREHOLDER, impair, restrict or
delay SHAREHOLDERS' voting rights with respect to the Shares.
3. SHAREHOLDER and KIK represent and warrant to ISSUER the following:
i. Organization KIK is a corporation duly organized, validly existing, and
in good standing under the laws of California, 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 California. All actions taken by the
Incorporators, directors and shareholders of KIK have been valid and in
accordance with the laws of California.
ii. Shareholders and Issued Stock. Exhibit A annexed hereto sets forth the
names and share holdings of 100% of KIK shareholders.
iii. Subsequent to closing KIK or ISSUER will not issue shares pursuant to
an S-8 Registration Statement or reverse split the stock without the prior
written consent of the majority of the existing shareholders (prior to closing),
for a period of one (1) year.
4. INVESTMENT INTENT. SHAREHOLDER agrees that the shares being issued
pursuant to this Agreement may not be sold, pledged, assigned, hypothecate or
otherwise transferred, with or without consideration (a "Transfer"), except
pursuant to an effective registration statement under the Act, or pursuant to an
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of ISSUER. SHAREHOLDER agrees, prior to any
Transfer, to give written notice to ISSUER expressing his desire to effect the
transfer and describing the proposed transfer.
5. CLOSING. The closing of this transaction shall take place at a mutually
agreed upon time and place no more than ninety (90) days from the date hereof.
6. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By the ISSUER
(1) Board of Directors Minutes authorizing the issuance of a
certificate or certificates for 16,700,000 shares, registered in the names
of the SHAREHOLDER based upon their holdings in KIK as agreed to on Exhibit
A.
(2) The resignation of all officers of ISSUER.
(3) A Board of Directors resolution appointing such person as
SHAREHOLDER designates as a director(s) of ISSUER.
(4) The resignation of all the directors of ISSUER, except that of
SHAREHOLDER'S designee, dated subsequent to the resolution described in 3,
above.
(5) All of the business and corporate records of ISSUER, including but
not limited to correspondence files, bank statements, checkbooks, savings
account books, minutes of shareholder and directors meetings, financial
statements, shareholder listings, stock transfer records, agreements and
contracts.
(6) Such other minutes of ISSUER's shareholders or directors as may
reasonably be required by SHAREHOLDER.
ii. By SHAREHOLDERS AND KIK
(1) Delivery to the ISSUER, or to its Transfer Agent, the certificates
representing 100% of the issued and outstanding stock of KIK.
(2) Consents signed by all the shareholders of KIK consenting to the
terms of this Agreement.
7. REMEDIES.
i. Arbitration. Any controversy or claim arising out of, or relating to,
this Agreement, or the making, performance, or interpretation thereof, shall be
settled by arbitration in accordance with the Rules of the American Arbitration
Association then existing, and judgment on the arbitration award may be entered
in any court having jurisdiction over the subject matter of the controversy.
8. 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, changed, 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 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 party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed, and by fax, as follows:
ISSUER: RUSSIAN XXXXXXX.XXX, INC.
000 Xxxxx Xxxxxx, Xxxxx 00
Xxxxx Xxxxxxx, XX 00000
SHAREHOLDERS: KIK TIRE TECHNOLOGIES INC.
1400, 000 0xx Xxxxxx, XX
Xxxxxxx, XX X0X 0X0
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 25th
day of June 2001.
RUSSIAN XXXXXXX.XXX, INC.
By: /s/ A. Xxxx Xxxxxxx, Xx.
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KIK TECHNOLOGY INC.
By: /s/ Xxx Xxxx
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EXHIBIT A
Name KIK Shares Consented To
KIK Tire Technologies Inc.
KIK Tire Technologies Inc. 5,690,000 By:
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