Attached files
EXHIBIT 10.1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") made and entered
into as of December 7, 2011 by and among, VICTORIA INTERNET SERVICES, INC. ., a
Nevada corporation (hereinafter referred to as the "Company" or "VRIS"), Leon
Golden (the "Control Stockholder") and the persons identified on Schedule A
hereto (the "Buyers") and Earn-A-Car (PTY), LTD., a corporation organized under
the laws of the Republic of South Africa ("EAC").
RECITALS
WHEREAS, the Control Stockholder owns a total of 205,000,000 restricted
shares of the Company's common stock ("Control Stock") which shares were not
included in the Company's Registration Statement on Form S-1 number
333-165391ordered effective June 23, 2010 (the "Registration Statement"); and
WHEREAS, Buyers desire to (i) acquire 78,750,000 shares out of the Control
Stock in the amounts set forth on Schedule A (the "Sold Shares") and the Control
Stockholder desires to sell the Control Stock for $150,000 (the "Purchase
Price") and (ii) contribute of 100% of the capital of EAC (the "EAC Shares")
(the "Contribution") and the Control Stockholder desires to sell all of his Sold
Shares to EAC for $150,000 conditioned upon the Contribution and the Company is
willing to accept the Contribution on the terms hereinafter set forth; and
WHEREAS, all share numbers in this document have been adjusted to reflect a
50 for one forward stock split initiated in November 2011.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in reliance upon the representations and warranties
hereinafter set forth, the parties agree as follows:
1. PURCHASE OF THE SHARES AND CONSIDERATION
1.1 Shares Being Purchased. Subject to the terms and conditions of this
Agreement, at the closing provided for in Section 2 hereof (the "Closing"), the
Control Stockholder shall sell, assign, transfer and deliver to EAC the Sold
Shares.
1.2 Consideration. Subject to the terms and conditions of this Agreement
and in consideration of the sale, assignment, transfer and delivery of the Sold
Shares to the Buyers, at the Closing the Buyers shall transfer the EAC Shares to
the Company and pay the Control Shareholder $150,000, said $150,000 (the "Cash
Portion"), which Cash Portion the parties hereto recognize as already paid in
full by Estripoint Capital Partners Limited, on behalf of EAC. If this Agreement
shall be terminated, the Cash Portion shall be returned to Estripoint Capital
Partners Limited as per Schedule A hereto.
2. THE CLOSING
2.1 Time and Place. The closing of the transactions contemplated by this
Agreement shall be held at the offices of Gary B Wolff, 485 Madison Avenue -
Suite 1100, New York, New York 10022 at 2:00 p.m. on December 7, 2011, or on
such other date and at such other time and place as the parties may agree upon
in writing (the "Closing").
2.2 Deliveries by the Control Stockholder. At the Closing, the Control
Stockholder shall deliver to the Buyers the stock certificate(s) representing
the Sold Shares, duly endorsed or accompanied by stock power(s) duly executed in
blank or otherwise in form acceptable for transfer on the books of the Company.
2.3 Deliveries by Buyers. At the Closing, the Buyers shall deliver the
Purchase Price to the Control Stockholder and EAC Shares to the Company in form
acceptable to counsel to the Company.
2.4 Cancelation. The Control Shareholder shall cause the remaining
126,250,000 shares owned by the Control Shareholder to be cancelled.
3. INDIVIDUAL REPRESENTATIONS AND WARRANTIES OF THE CONTROL STOCKHOLDER
The Control Stockholder, represents and warrants to EAC as follows:
3.1 Title. The Control Stockholder owns all of the Control Shares and all
of the Sold Shares, and shall transfer to the Buyers at the Closing good and
valid title to the Sold Shares, free and clear of all restrictions on transfer
(other than any restrictions under federal and state securities laws), liens,
claims, options, charges, pledges, security interests, and encumbrances of every
kind, character or description. The Control Stockholder is not a party to any
voting trust, proxy, or other agreement or understanding with respect to the
voting of any capital stock of the Company.
3.2 Valid and Binding Agreement. The Control Stockholder has the full and
unrestricted right, power and authority and capacity to execute and deliver this
Agreement and consummate the transactions contemplated herein. This Agreement
has been duly executed and delivered by the Control Stockholder and constitutes
the valid and binding obligation of the Control Stockholder, enforceable in
accordance with its terms.
3.3 Non-contravention. The execution and delivery of this Agreement and
consummation of the transactions contemplated hereby do not violate or conflict
with or constitute a default under any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which the Control
Stockholder is a party or by which the Control Stockholder or the Control
Stockholder's property is bound, or to the knowledge of the Control Stockholder
any existing applicable law, rule, regulation, judgment, or court order. The
Control Stockholder is not and will not be required to give any notice to or
obtain any consent from any Person in connection with the execution and delivery
of this Agreement or the consummation of the transactions contemplated hereby.
3.4 Accurate Information. To the best of such Control Shareholder's
knowledge, after due investigation; (i) the information filed by the Company
pursuant to the Securities Act of 1933, as amended (the "1933 Act") and the
Securities and Exchange Act of 1934, as amended (the "1934 Act") and (ii) the
Company's representations and warranties hereunder are all true accurate and
complete and do not omit any facts, necessary to make such documents or
representations and warranties not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYERS AND EAC.
Each Buyer and EAC represents and warrants to the Company and the
Controlling Shareholder as follows:
4.1 Authority. The Buyer has all requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated herein. This
Agreement constitutes the valid and binding obligation of the Buyer, enforceable
in accordance with its terms. (This representation is made by the Buyers only.)
4.2 Litigation. There is no claim, action suit or proceeding, at law or in
equity, pending or threatened against Buyer affecting any of the EAC Shares,
(nor, to the knowledge of the Buyer, is there any basis therefore) that might
2
result, either in any case or in the aggregate, in any material adverse change
in the business of EAC, nor is there any judgment, decree, injunction, rule or
order of any court, governmental department, commission, agency, instrumentality
or arbitrator outstanding against the Buyer or relating to the EAC or the EAC
Shares having, or which insofar as can be reasonably foreseen, in the future may
have, any such effect. There is no claim, action, suit or proceeding by the
Buyer currently pending or which Buyer intends to initiate that might
potentially result in a counterclaim affecting EAC or the EAC Shares. . (This
representation is made by the Buyers only.)
4.3 No Conflict. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby do not and will not
conflict with, or result in a breach of any term or provision of, or constitute
a default under or result in a violation of any agreement, contract, lease,
license or instrument to which the Buyer is a party or by which it or any of his
properties or assets are bound, or any judgment, decree, order, or writ by which
EAC is bound or to which it or any of his properties or assets are subject.
4.4 Consent. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality is required by or
with respect to the Buyer, EAC or the EAC Shares in connection with the
execution and delivery of this Agreement or the consummation by the Buyer of the
transactions contemplated herein.
4.5 Organization.
4.5(a) EAC is a corporation duly organized, validly existing, and in
good standing under the laws of the Republic of South Africa; has the corporate
power and authority to carry on its business as presently conducted; and is
qualified to do business as a foreign corporation and is in good standing under
the laws of each state in which either the ownership or use of the properties
owned or used by it, or the nature of the activities conducted by it, requires
such qualification, except where the failure to be so qualified would not have a
material adverse effect on the business or financial condition of the Company.
4.5(b) The copies of the Articles of Incorporation, and all amendments
thereto, of the Company, as certified by the government of the Republic of South
Africa, and the bylaws of EAC and all amendments thereto, as certified by the
Secretary of EAC, which will be delivered to the Company for examination prior
to the Closing, are complete and correct copies of the Articles of Incorporation
and bylaws of EAC in effect on the date hereof. All minutes of meetings and
actions in writing without a meeting of the Board of Directors and stockholders
of EAC are contained in the minute book of EAC, which will be delivered to the
Company for examination prior to the Closing, and no minutes or actions in
writing without a meeting will be included in such minute book since delivery to
the Company that will not also be delivered to the Company. The minute book of
EAC contains complete and accurate records of all meetings and other corporate
actions of its Board of Directors and stockholders.
4.6 Share Issuance Restriction. EAC covenants that after the Closing
hereunder it will not sell any of its shares except to the Company, which shall
be permitted to buy additional shares in EAC.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to EAC as follows:
5.1 Authority. The Company has all requisite corporate power and authority
to enter into this Agreement and to consummate the transactions contemplated
herein. The execution and delivery of this Agreement, and the consummation of
the transactions contemplated herein, have been duly authorized by all necessary
corporate action on the part of the Company. This Agreement has been duly
executed and delivered by the Company and constitutes the valid and binding
obligation of the Company, enforceable in accordance with its terms.
3
5.2 Organization.
5.2(a) The Company is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Nevada; has the corporate
power and authority to carry on its business as presently conducted; and is
qualified to do business as a foreign corporation and is in good standing under
the laws of each state in which either the ownership or use of the properties
owned or used by it, or the nature of the activities conducted by it, requires
such qualification, except where the failure to be so qualified would not have a
material adverse effect on the business or financial condition of the Company.
5.2(b) The copies of the Articles of Incorporation, and all amendments
thereto, of the Company, as certified by the Secretary of State of Nevada, and
the bylaws of the Company and all amendments thereto, as certified by the
Secretary of the Company, which will be delivered to EAC for examination prior
to the Closing, are complete and correct copies of the Articles of Incorporation
and bylaws of the Company in effect on the date hereof. All minutes of meetings
and actions in writing without a meeting of the Board of Directors and
stockholders of the Company are contained in the minute book of the Company,
which will be delivered to EAC and Buyers for examination prior to the Closing,
and no minutes or actions in writing without a meeting will be included in such
minute book since delivery to EAC and Buyers that will not also be delivered to
EAC and Buyers. The minute book of the Company contains complete and accurate
records of all meetings and other corporate actions of its Board of Directors
and stockholders.
5.3 Capitalization.
5.3(a) The authorized capital stock of the Company consists of
250,000,000 shares of Common Stock, $.0000001 par value, of which 238,750,000
shares are issued and outstanding and 20,000,000 shares of blank check Preferred
Stock, $0.0000001 par value, of which there are no shares issued and outstanding
or designated. All of the issued and outstanding shares of Common Stock of the
Company are duly authorized, validly issued, fully paid and non-assessable, are
not subject to preemptive rights created by statute, the Company's charter
documents or bylaws or any agreement to which the Company is a party or by which
it is bound, and were offered and sold in compliance with applicable state and
Federal securities laws.
5.3(b) There are no outstanding options, warrants, subscriptions,
calls, rights, demands, commitments, convertible securities or other agreements
or arrangements of any character or nature whatsoever to which the Company is a
party or by which it is bound obligating the Company to issue, deliver or sell,
or cause to be issued, sold or delivered, additional shares of capital stock of
the Company or obligating the Company to grant, extend or enter into any such
option, warrant, subscription, call, right, demand, commitment, convertible
security or other agreement.
5.4 Equity Investments. The Company does not own any capital stock or have
any interest in any corporation, partnership, or other form of business entity.
5.5 Financial Statements. The Company has delivered to EAC copies of its
audited balance sheet for the fiscal year ended December 31, 2010 (the "Balance
Sheet") and the related audited statements of operations, changes in
stockholders' equity and cash flows for the year ended December 31, 2010
together with appropriate notes to such financial statements, a copy of which is
included in the Annual Report on Form 10-K filed by the Company with the SEC,
and copies of its unaudited balance sheet as of September 30, 2011 and the
related unaudited statements of operations, changes in stockholders' equity and
cash flows for the three and nine month periods ended September 30, 2011 (the
"Company Financial Statements"), a copy of which is included in the Company's
Quarterly Report on Form 10-Q for the three month period ended September 30,
2011filed by the Company with the SEC. The Company Financial Statements have
been prepared in accordance with generally accepted accounting principles
4
consistently applied, and present fairly the financial condition and results of
operations of the Company at the dates and for the periods covered by the
Company Financial Statements.
5.6 Absence of Liabilities. As of the date of the date of Closing, the
Company does will not have any debts, liabilities, or obligations of any nature,
including, but not limited to expenses and costs, stock transfer fees and
accounting fees in connection with the Transaction contemplated by this
agreement and any agreements relating to the Company or its shares entered into
contemporaneously or substantially contemporaneously herewith.
5.7 Tax Returns. Within the times and in the manner prescribed by law, the
Company has filed all federal, state, and local tax returns required by law and
has paid in full all taxes, including, without limitation, all net income, gross
receipts, sales, use, withholding, payroll, employment, social security,
unemployment, excise and property taxes, plus applicable penalties and interest
thereon (all such items are collectively referred to as "Taxes") due to, or
claimed to be due by, any governmental authority. The Balance Sheet fully
accrues all current and deferred Taxes. The Company has not been delinquent in
the payment of any Taxes and has no tax deficiency or claim outstanding,
proposed or assessed against it, and there is no basis for any such deficiency
or claim. As of the date of Closing, the Company will not have any liability for
Taxes which has not been paid or noted in the Company Financial Statements.
5.8 Litigation. There is no claim, action, suit, proceeding or
investigation, at law or in equity, pending or threatened against the Company
affecting any of its properties or assets or, to the knowledge of the Company,
against any officer or director of the Company that might result, either in any
case or in the aggregate, in any material adverse change in the business,
operations, affairs or condition of the Company or any of its properties or
assets, or that might call into question the validity of this Agreement, or any
action taken or to be taken pursuant hereto, nor is there any judgment, decree,
injunction, rule or order of any court, governmental department, commission,
agency, instrumentality or arbitrator outstanding against the Company having, or
which, insofar as can be reasonably foreseen, in the future may have, any such
effect.
5.9 Compliance with Applicable Law. The Company has complied with all
applicable laws, regulations, orders and other requirements of all governmental
entities having jurisdiction over it and its assets, properties and operations,
except in any case where the failure to comply would not have a material adverse
effect on the business, assets or financial condition of the Company. The
Company has not received any notice of any material violation of any such law,
regulation, order or other legal requirement, and is not in material default
with respect to any order, writ, judgment, award, injunction or decree of any
governmental entity, applicable to the Company or any of its assets, properties
or operations.
5.10 Contracts and Agreements. The Company is not a party to or bound by
nor are any of its properties and assets subject to any contract, instrument,
lease, license, agreement, guaranty, commitment or undertaking.
5.11 Employees; Employee Plans. The Company is not a party to or bound by
any employment, consulting, or retainer agreement, or any profit-sharing,
deferred compensation, bonus, savings, stock option, stock purchase, or
incentive plan or agreement.
5.12 No Conflict. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby do not and will not
conflict with or result in a breach of any term or provision of, constitute a
default under or result in a violation of, the Articles of Incorporation or
bylaws of the Company, as amended, any agreement, contract, instrument, lease,
license, agreement or undertaking to which the Company is a party or by which it
or any of its assets are bound, or any judgment, decree, order or writ by which
the Company is bound or to which it or any of its assets or properties are
subject.
5
5.13 Consent. The Company is not required to submit any notice, report,
statement, or other filing with and no consent, approval, order or authorization
by any Person is required to be obtained by the Company in connection with the
execution and delivery of this Agreement, other than (a) such consents,
approvals, orders, authorizations, registrations, declarations and filings as
may be required under applicable state securities law and (b) such other
consents, approvals, orders, authorizations, registrations, declarations and
filings which if not obtained or made would not have a material adverse effect
on the Company.
5.14 Stockholder List. A complete and accurate list of the stockholders of
record of the Company will be delivered to EAC prior to the Closing.
5.15 Registration Rights. No Person has demand or other rights to cause the
Company to file any registration statement under the Securities Act of 1933
relating to any securities of the Company or any right to participate in any
such registration statement.
5.16 Compliance with Securities Laws.
5.16(a) All reports required to be filed by the Company with the
Securities and Exchange Commission (collectively, the "Reports") have been
properly filed and comply in all material respects with the requirements of the
1934 Act and the rules and regulations promulgated thereunder with respect to
such Reports. None of the filed Reports contain any untrue statement of a
material fact, or fail to state any material fact required to be stated therein
or necessary to make the statements made therein not misleading.
5.16(b) No formal or informal investigation or examination by the
Securities and Exchange Commission or by the securities administrator of any
state is pending or threatened against the Company.
5.16(c) The Company has not been convicted of any felony or misdemeanor
in connection with the purchase and sale of any security or involving the making
of any false filing with the Securities and Exchange Commission.
5.16(d) The Company is not subject to any order, judgment or decree of
any court of competent jurisdiction, temporarily or preliminarily restraining or
enjoining, or subject to any order, judgment or decree of any court of competent
jurisdiction, permanently restraining or enjoining, the Company from engaging in
or continuing any conduct or practice in connection with the purchase or sale of
any security or involving the making of any false filing with the Securities and
Exchange Commission.
5.16(e) The Company does not have a class of securities registered
under and is not subject to Section 12(g) of the Securities Exchange Act of
1934.
5.17 Investment Company. The Company is not required to be registered as an
investment company under the Investment Company Act of 1940, as amended, and
neither the Company nor its officers or directors are required to be registered
as investment advisors under the Investment Advisor Act of 1940, as amended.
6. COVENANTS RELATING TO CONDUCT OF BUSINESS OF THE COMPANY
During the period from the date of this Agreement and continuing until the
Closing, the Company agrees (except as expressly contemplated by this Agreement
or to the extent that each and every Buyer shall otherwise consent in writing)
that:
6
6.1 Ordinary Course. The Company shall not conduct any business or engage
in any activities other than activities related to the closing of the
transactions contemplated by this Agreement. In such connection, the company
further represents and warrants to EAC that since June 30, 2011,
(a) there has not been any Material Adverse Change in the business,
operations, properties, assets, or condition of the Company;
(b) the Company has not (i) amended its Articles of Incorporation; (ii)
declared or made, or agreed to declare or make, any payment of dividends or
distributions of any assets of any kind whatsoever to stockholders or purchased
or redeemed, or agreed to purchase or redeem, any outstanding capital stock;
(iii) made any material change in its method of management, operation, or
accounting; (iv) entered into any material transaction; or (v) made any accrual
or arrangement for payment of bonuses or special compensation of any kind or any
severance or termination pay to any present or former officer or employee;
(c) The Company has not (i) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability (absolute
or contingent) except liabilities incurred in the ordinary course of business;
(ii) paid any material obligation or liability (absolute or contingent) other
than current liabilities reflected in or shown on the most recent MNXU balance
sheet, and current liabilities incurred since that date in the ordinary course
of business; (iii) sold or transferred, or agreed to sell or transfer, any
material assets, properties, or rights, or canceled, or agreed to cancel, any
material debts or claims; or (iv) made or permitted any material amendment or
termination of any contract, agreement, or license to which it is a party;
(d) Notwithstanding anything to the contrary in the foregoing, VRIS
shall have divested itself of all of its assets and have not liabilities on the
date of the Closing and all of the business operations of VRIS as described in
the VRIS prospectus shall have been discontinued.
6.2 Dividends; Changes in Stock. The Company shall not and shall not
propose to (i) declare or pay any dividends on or make other distributions in
respect of any of its capital stock, (ii) split, combine or reclassify any of
its capital stock or issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for shares of capital stock of the
Company, or (iii) repurchase or otherwise acquire any shares of its capital
stock or rights to acquire any shares of its capital stock.
6.3 Issuance of Securities. The Company shall not issue, deliver or sell or
authorize or propose the issuance, delivery or sale of, any shares of its
capital stock of any class or securities convertible into, or rights, warrants
or options to acquire, any such shares or other convertible securities.
6.4 Governing Documents. The Company shall not amend its Articles of
Incorporation or Bylaws.
6.5 No Contracts or Undertakings. The Company shall not become a party to
or become bound by or agree to become a party to or become bound by any
contract, instrument, lease, license, agreement, commitment or undertaking.
6.6 No Obligations or Liabilities. The Company shall not incur or agree to
incur any amount of long or short-term debt for money borrowed, or indemnify or
agree to indemnify others, or incur or agree to incur any debts, obligations or
liabilities whatsoever.
7. ADDITIONAL AGREEMENTS
7.1 Access to Information.
(a) EAC shall afford to the Company and shall cause its independent
accountants to afford to the Company, and its accountants, counsel and other
7
representatives, reasonable access during normal business hours during the
period prior to the Closing to all information concerning the EAC and the EAC
Shares, as the Company may reasonably request, provided that EAC shall not be
required to disclose any information which he is legally required to keep
confidential. The Company will not use such information for purposes other than
this Agreement and will otherwise hold such information in confidence (and the
Company will cause its consultants and advisors also to hold such information in
confidence) until such time as such information otherwise becomes publicly
available, and in the event of termination of this Agreement for any reason the
Company shall promptly return, or cause to be returned, to the disclosing party
all documents obtained from EAC, and any copies made of such documents, extracts
and copies thereof.
(b) The Company shall afford to EAC and shall cause its independent
accountants to afford to EAC and its accountants, counsel and other
representatives, reasonable access during normal business hours during the
period prior to the Closing to all of the Company's properties, books,
contracts, commitments and records and to the audit work papers and other
records of the Company's independent accountants. During such period, the
Company shall use reasonable efforts to furnish promptly to EAC such information
concerning the Company as EAC may reasonably request, provided that the Company
shall not be required to disclose any information that it is legally required to
keep confidential. EAC will not use such information for purposes other than
this Agreement and will otherwise hold such information in confidence (and EAC
will cause his consultants and advisors also to hold such information in
confidence) until such time as such information otherwise becomes publicly
available, and in the event of termination of this Agreement for any reason EAC
shall promptly return, or cause to be returned, to the disclosing party all
documents obtained from the Company, and any copies made of such documents,
extracts and copies thereof.
7.2 Communications. Between the date hereof and the Closing Date, the
Company will not, without the prior written approval of the Buyers, furnish any
communication to the public if the subject matter thereof relates to the other
party or to the transactions contemplated by this Agreement, except as may be
necessary, in the opinion of their respective counsel, to comply with the
requirements of any law, governmental order or regulation.
7.3 No Shop. From the date of this Agreement until the earlier of (i) the
Closing Date, or (ii) the termination of this Agreement; neither Company nor the
Buyers shall cause their respective shareholders, officers, directors, employees
and other agents to directly or indirectly, take any action to solicit, initiate
or encourage any offer or proposal or indication of interest in a merger,
consolidation or other business combination involving any equity interest in, or
a substantial portion of the assets of itself, other than in connection with the
transactions contemplated by this Agreement. Each of the parties hereto shall
immediately advise the other party of the terms of any offer, proposal or
indication of interest that it receives or otherwise becomes aware of.
7.4 Public Announcements. The Company, the Buyers and EAC shall consult
with each other before issuing any press release or making any public statement
with respect to this Agreement or the transactions contemplated hereby and will
not issue any such press release or make any such public statement prior to such
consultation and without the written consent of the other party.
7.5 Notices of Certain Events. In addition to any other notice required to
be given by the terms of this Agreement, each of the parties shall promptly
notify the other party hereto of:
(a) any notice or other communication from any person or entity
alleging that the consent of such person or entity is or may be required in
connection with any of the transactions contemplated by this Agreement;
8
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings commenced
or, to its knowledge threatened against, relating to or involving or otherwise
affecting such party that, if pending on the date of this Agreement, would have
been required to have been disclosed pursuant to Sections 3,4 and 5 (as the case
may be) or that relate to the consummation of the transactions contemplated by
this Agreement
8. CONDITIONS PRECEDENT
8.1 Conditions to Obligations of the Company. The obligations of the
Company to consummate the transactions contemplated by this Agreement are
subject to the satisfaction on or before the date of Closing of the following
conditions, unless waived by the Company:
(a) Representations and Warranties of the Buyers and EAC. The
representations and warranties of the Buyers and EAC and set forth herein shall
be true and correct in all material respects as of the date of this Agreement
and on the date of the Closing.
(b) Additional Closing Documents. The Company shall have received such
other documents and instruments as are required to be delivered pursuant to the
provisions of this Agreement or otherwise reasonably requested by the Company.
7.2 Conditions to Obligations of the Buyers. The obligations of the Buyers
to consummate the transactions contemplated by this Agreement are subject to the
satisfaction on or before the date of Closing of the following conditions unless
waived by the Buyers:
(a) Representations and Warranties of the Company. The representations
and warranties of the Company set forth herein shall be true and correct in all
material respects as of the date of this Agreement and on the date of Closing,
and the Buyers and shall have received a certificate signed by an executive
officer of the Company to such effect.
(b) Election of Directors and Officers. Persons designated by the
Buyers shall have been elected to the Board of Directors of the Company as well
as its CEO and all of the Company's officers and directors shall have resigned.
(c) Additional Closing Documents. The Buyers shall have received the
following documents and instruments: (1) Certified resolutions of the Company's
Board of Directors (a) authorizing the execution and delivery of this Agreement
and the performance by the Company of its obligations hereunder, (b) electing
persons designated by EAC as the officers and directors of the Company effective
as of the date of Closing; (2) a current list of the Company's stockholders
certified by the Company's stock transfer agent; (3) an indemnification
agreement, in form and substance reasonably acceptable to the Buyers, EAC and
its counsel wherein the Control Shareholder agrees to indemnify, defend and hold
harmless each of the Buyers and EAC and the Company and any subsidiary or
affiliate thereof and each person who is now, or has been at any time prior to
the date hereof or who becomes prior to the Closing, a shareholder, officer,
director or partner of EAC, any subsidiary or affiliate thereof or an employee
of EAC, any subsidiary or affiliate thereof and their respective heirs, legal
representatives, successors and assigns (the "EAC Indemnified Parties") against
all losses, claims, damages, costs, expenses (including reasonable attorneys'
fees), liabilities or judgments or amounts that are paid in settlement of or in
connection with any threatened or actual third party claim, action, suit,
proceeding or investigation based in whole or in part on or arising in whole or
in part out of (i) any material breach of this Agreement by the Company or any
subsidiary or affiliate thereof, including but not limited to inaccuracy or
breach of any representation or warranty to be true and correct at or before the
Closing, or (ii) any willful or grossly negligent act, omission or conduct of
any officer, director or agent of the Company or any subsidiary or affiliate
thereof prior to the Closing, whether asserted or claimed prior to, at or after,
9
the Closing and (4) such other documents and instruments as are required to be
delivered pursuant to the provisions of this Agreement or otherwise reasonably
requested by the Buyers or EAC.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties contained herein shall survive the
Closing, but shall expire on the first anniversary date following the date of
Closing, unless a specific claim in writing with respect to these matters shall
have been made, or any action at law or in equity shall have been commenced or
filed before such anniversary date. Any investigations made by or on behalf of
any of the parties prior to the date of Closing shall not affect any of the
parties' obligations hereunder. Completion of the transactions contemplated
herein shall not be deemed or construed to be a waiver of any right or remedy of
any of the parties.
10. TERMINATION
10.1 Termination. This Agreement may be terminated at any time prior to the
Closing Date:
(a) by mutual written consent of the Company, the Controlling
Stockholders and the Buyers;
(b) by the Company or the Controlling Stockholders if there has been a
material breach of any representation, warranty, covenant or agreement contained
in this Agreement by EAC or the Buyers; or
(c) by EAC or the Buyers if there has been a material breach of any
representation, warranty, covenant or agreement contained in this Agreement by
the Company or the Controlling Stockholder.
10.2 Effect of Termination. Termination of this Agreement in accordance
with Section 11.1 may be effected by written notice from either the Company, the
Control Shareholder, a Buyer, or EAC, as appropriate, specifying the reasons for
termination and shall not subject the terminating party to any liability for any
valid termination.
11. MISCELLANEOUS
11.1 Further Assurances. From time to time, at the other party's request
and without further consideration, each of the parties will execute and deliver
to the others such documents and take such action as the other party may
reasonably request in order to consummate more effectively the transactions
contemplated hereby.
11.2 Payment of Fees and Expenses. If any legal action or any arbitration
or other proceeding is brought for the enforcement of this Agreement, or because
of an alleged dispute, breach, default, or misrepresentation in connection with
any of the provisions of this Agreement, the successful or prevailing party or
parties shall be entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief to which
it or they may be entitled.
11.3 Parties in Interest. Except as otherwise expressly provided herein,
all the terms and provisions of this Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the respective heirs,
beneficiaries, personal and legal representatives, successors and assigns of the
parties hereto.
11.4 Entire Agreement; Amendments. This Agreement, including the Schedules,
Exhibits and other documents and writings referred to herein or delivered
pursuant hereto, which form a part hereof, contains the entire understanding of
10
the parties with respect to its subject matter. There are no restrictions,
agreements, promises, warranties, covenants or undertakings other than those
expressly set forth herein or therein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Agreement may be amended only by a written instrument duly executed
by the parties or their respective successors or assigns.
11.5 Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.6 Pronouns. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person, persons, entity or entities may require.
11.7 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
11.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York as they are applied to
contracts executed, delivered and to be performed entirely within such state.
11.9 Person. For purposes of this Agreement, the term "Person" shall mean
any individual, corporation, partnership, joint venture or other business
enterprise or entity and any governmental agency, federal, state or local.
11.10 Notices. Any and all notices, demands or other communications
required or desired to be given hereunder by any party shall be in writing and
shall be validly given or made to another party if given by personal delivery,
telex, facsimile, telegram or if deposited in the United States mail, certified
or registered, postage prepaid, return receipt requested. If such notice, demand
or other communication is given by personal delivery, telex, facsimile or
telegram, service shall be conclusively deemed made at the time of receipt. If
such notice, demand or other communication is given by mail, such notice shall
be conclusively deemed given forty-eight (48) hours after the deposit thereof in
the United States mail addressed to the party to whom such notice, demand or
other communication is to be given as hereinafter set forth:
If to EAC: At the address set forth below his name on the
signature page of this Agreement.
If to the Company or the At the address set forth below its name on the
Controlling Shareholder: signature page of this Agreement.
Copy to: Gary B. Wolff, P.C.
485 Madison Avenue
New York, New York 10022
If to the Buyers or EAC: At the address set forth below their name on
the signature page of this Agreement.
Copy to: Frank J Hariton, Esq.
1065 Dobbs Ferry Road
White Plains, NY 10607
11
11.11 Payment of Expenses.
The Company and EAC shall each bear their own fees and expenses (including
legal fees) incurred incident to the preparation and carrying out of the
transactions contemplated herein.
12. APPOINTMENT OF AGENT
The Company and the Controlling Stockholder hereby irrevocably constitute
and appoint Gary B Wolff, P.C. as their true and lawful attorney (the "Agent")
with full right and power in their names and stead to take any and all action by
and on behalf of them necessary or desirable to consummate the transactions
contemplated by this Agreement, including without limitation, the right and
power to receive and distribute the Purchase Price upon their written
instruction.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties hereto as of the date first above written.
Victoria Internet Services, Inc.
a Nevada corporation
By: /s/ Leon Golden
---------------------------------------
Leon Golden, President
2470 East 16th Street
Brooklyn, NY 11235
Leon Golden, Individually
2470 East 16th Street
Brooklyn, NY 11235
Earn-A-Car (PTY) Ltd
By: /s/ John Storey
---------------------------------------
John Storey, CEO
Office 1 The Falls Centre
Corner Great North and Webb
Northmead, Benoni 1522
Union of South Africa
BUYERS
/s/ Greame Hardie
---------------------------------
Graeme Hardie
1
