STOCK PURCHASE AGREEMENT
by and among
JACKAL INDUSTRIES, INC.
as Acquiror
and
FACT SOUTH LLC
as Acquiree
April 1, 1999
STOCK PURCHASE AGREEMENT
------------------------
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into this 1st day of April, 1999 by and among JACKAL INDUSTRIES, INC., a Nevada
corporation ("JII") and FACT SOUTH LLC, a Florida Limited Liability Company
("FLLC").
RECITALS:
---------
A. FLLC owns all of the issued and outstanding shares of the capital
stock of AFFORDABLE DEALER SERVICES, INC., a Florida corporation ("ADSI"),
SOUTHEAST DEALER ACCEPTANCE, INC., a Florida corporation ("SEDAI") and CARNET,
INC., a Florida corporation ("CNI").
B. JII is willing to acquire all of the issued and outstanding capital
stock of ADSI, SEDAI and CNI, making ADSI, SEDAI and CNI wholly-owned
subsidiaries of JII, and FLLC desires to exchange all of its shares of ADSI,
SEDAI and CNI capital stock for authorized but unissued shares of Class A Common
Stock $.001 par value (the "Common Stock") of JII as hereinafter provided.
C. It is the intention of the parties hereto that: (i) JII shall
acquire all of the issued and outstanding capital stock of ADSI, SEDAI and CNI
in exchange solely for the consideration set forth below (the "Exchange"); and
(ii) the Exchange shall qualify as a transaction in securities exempt from
registration or qualification under the Securities Act of 1933, as amended, and
under the applicable securities laws of the jurisdiction where FLLC is located.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. PURCHASE OF SHARES
- ------------------------------
1.1 Acquisition of Shares. JII and FLLC hereby agree that FLLC shall,
on the Closing Date (as hereinafter defined), exchange all of the issued and
outstanding shares of capital stock of ADSI, SEDAI and CNI (the "FLLC Shares")
and JII shall issue to FLLC an aggregate of Ten Million (10,000,000) Shares of
JII's Class A Common Stock (the "JII Shares").
1.2 Delivery of FLLC Shares. On the Closing Date, FLLC will deliver to
JII the certificates representing the FLLC Shares, duly endorsed (or with
executed stock powers) so as to make JII the sole owner thereof. Simultaneously,
JII will deliver certificates representing the JII Shares to FLLC.
1.3 Investment Intent. The JII Shares have not been registered under
the Securities Act of 1933, as Amended (the "Act"), and may not be resold unless
the JII Shares are registered under the Act or an exemption from such
registration is available. FLLC represents and warrants that it is acquiring the
JII Shares for its own account, for investment, and not with a view to the sale
or distribution of the JII Shares. Each certificate representing the JII Shares
will have a legend thereon incorporating language as follows:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"). The shares
have been acquired for investment and may not be sold or transferred in
the absence of an effective Registration Statement for the shares under
the Act unless in the opinion of counsel satisfactory to the Company,
registration is not required under the Act."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF FLLC
- --------------------------------------------------
FLLC hereby represents and warrants as follows:
2.1 Organization and Good Standing. ADSI, SEDAI and CNI (the
"Acquisitions") are corporations duly organized, validly existing and in good
standing under the laws of the State of Florida, and are entitled to own or
lease the properties and to carry on its business as and in the places where
such properties are now owned, leased or operated and such business is now
conducted.
2.2 Ownership of FLLC Shares. FLLC represents as to their respective
ownership of FLLC Shares, that they are the owner of record and beneficially of
all of the shares of capital stock of the Acquisitions all of which shares are
free and clear of all rights, claims, liens and encumbrances, and have not been
sold, pledged, assigned or otherwise transferred except pursuant to this
Agreement. There are no outstanding subscriptions, rights, options, warrants or
other agreements obligating either FLLC to issue, sell or transfer any stock or
other securities of the Acquisitions.
2.3 Financial Statements, Books and Records. There has been previously
delivered to JII the balance sheet of the Acquisitions as at February 28, 1999
(the "Balance Sheets"). The Balance Sheets fairly represent the financial
position of the Acquisitions as at such date and the results of its operations
for the period then ended.
2.4 No Material Adverse Changes. Since the date of the Balance Sheets
there has not been:
(i) any material adverse change in the assets, operations,
condition (financial or otherwise) or prospective business of the Acquisitions;
2
(ii) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial or otherwise)
of the Acquisitions, whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any
dividend or distribution with respect to any redemption or repurchase of the
Acquisitions' capital stock;
(iv) any sale of an asset (other than in the ordinary course
of business) or any mortgage or pledge by the Acquisitions of any properties or
assets; or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
2.5 Compliance with Laws. To the best of Acquisitions' knowledge and
belief, the Acquisitions have complied with all federal, state, county and local
laws, ordinances, regulations, inspections, orders, judgments, injunctions,
awards or decrees applicable to it or its business which, if not complied with,
would materially and adversely affect the business of the Acquisitions.
2.6 No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i)violate any provision of the Charter or By-Laws of the
Acquisitions;
(ii) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which the Acquisitions are a party or by or to which it or any of its assets or
properties may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against, or binding
upon, the Acquisitions, or upon the properties or business of the Acquisitions;
or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein which could have
a materially adverse effect on the business or operations of the Acquisitions.
2.7 Actions and Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving the Acquisitions. There is no action,
suit or claim or legal, administrative or arbitral proceeding or (whether or not
the defense thereof or liabilities
3
in respect thereof are covered by insurance) pending or threatened against or
involving ADSI, SEDAI or CNI or any of its properties or assets.
2.8 Tangible Assets. The Acquisitions have full title and interest in
all machinery, equipment, furniture, leasehold improvements, fixtures, vehicles,
structures, owned or leased by the Acquisitions, any related capitalized items
or other tangible property material to the business of the Acquisitions (the
"Tangible Assets"). The Acquisitions hold all rights, title and interest in all
the Tangible Assets owned by it on the Balance Sheets or acquired by it after
the date of the Balance Sheets free and clear of all liens, pledges, mortgages,
security interests, conditional sales contracts or any other encumbrances except
as set forth on Schedule 2.8.
2.9 Liabilities. The Acquisitions do not have any material direct or
indirect indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, (all of the
foregoing collectively defined to as "Liabilities"), which were not fully,
fairly and adequately reflected on the Balance Sheets. As of the Closing Date,
the Acquisitions will not have any Liabilities, other than Liabilities fully and
adequately reflected on the Balance Sheets, except for Liabilities incurred in
the ordinary course of business.
2.10 Operations of the Acquisitions. Except as set forth on Schedule
2.12 and in the ordinary course of business, from the date of the Balance Sheet
and through the Closing Date hereof the Acquisitions have not and will not have:
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in their
capital stock;
(iii) made any material loan or advance to any shareholder,
officer, director, employee, consultant, agent or other representative or made
any other material loan or advance otherwise than in the ordinary course of
business;
(iv) except in the ordinary course of business, incurred or
assumed any material indebtedness or liability (whether or not currently due and
payable);
(v)disposed of any assets of the Acquisitions except in the
ordinary course of business; or
(vi) issued any equity securities or rights to acquire such
equity securities.
4
2.11 Full Disclosure. No representation or warranty by FLLC or the FLLC
members in this Agreement or in any document or schedule to be delivered by them
pursuant hereto, and no written statement, certificate or instrument furnished
or to be furnished to JII pursuant hereto or in connection with the negotiation,
execution or performance of this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state any fact necessary
to make any statement herein or therein not materially misleading or necessary
to a complete and correct presentation of all material aspects of the businesses
of FLLC.
2.12 Receipt of Relevant Information. FLLC has received from JII
financial and other information concerning JII and its promoters, officers and
directors, including, but not limited to Prospectus dated June 30, 1993, and
Annual Report on Form 10K for the year ended December 31, 1997 and 1998, as
filed with the Securities and Exchange Commission, and all other documents and
information they have requested.
2.13 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, FLLC
shall have the opportunity to meet with JII's accountants and attorneys to
discuss the financial condition of JII. JII shall make available to FLLC all
books and records of JII.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF JII
- -------------------------------------------------
JII hereby represents and warrants to FLLC:
3.1 Organization and Good Standing. JII is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada, and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased, or
operated and such business is now conducted. The authorized capital stock of JII
consists of 100,000,000 shares of Class A Common Stock, of which 1,000,000
shares are presently issued and outstanding. JII is duly licensed or qualified
and in good standing as a foreign corporation where the character of the
properties owned by JII or the nature of the business transacted by it make such
license or qualification necessary.
3.2 The JII Shares. The JII Shares to be issued to FLLC have been or
will have been duly authorized by all necessary corporate and shareholder
actions and, when so issued in accordance with the terms of this Agreement, will
be validly issued, fully paid and non-assessable.
3.3 Financial Statements, Books and Records. The audited balance sheet
of JII as at December 31, 1998, and statements of operations for the period then
ended previously delivered were prepared in accordance with generally accepted
accounting principles applied on a consistent basis with prior periods, and such
financial statements
5
fairly represent the financial position of JII as at such dates and the results
of its operations for the periods then ended.
3.4 No Material Adverse Changes. Since December 31, 1998, there has not
been:
(i) any material adverse change in the assets, operations,
condition (financial or otherwise) or prospective business of JII;
(ii) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial or otherwise)
of JII, whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any
dividend or distribution with respect to any redemption or repurchase of JII's
capital stock;
(iv) any sale of an asset (other than in the ordinary course
of business) or any mortgage or pledge by JII of any properties or assets; or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
3.5 Compliance with Laws. To the best of JII's knowledge and belief,
JII has complied with all federal, state, county and local laws, ordinances,
regulations, inspections, orders, judgments, injunctions, awards or decrees
applicable to their businesses which, if not complied with, would materially and
adversely affect the business of JII or the trading market for the shares of
JII's Class A Common Stock.
3.6 No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or
By-Laws of JII;
(ii) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which JII is a party or by or to which it or any of its assets or properties may
be bound or subject;
(iii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against, or binding
upon, JII or upon the securities properties or business of JII; or
6
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein which could have
a materially adverse effect on the business or operations of the Acquisitions.
3.7 Actions and Proceedings. Except as disclosed in JII's SEC filings,
there is no outstanding order, judgment, injunction, award or decree of any
court, governmental or regulatory body or arbitration tribunal against or
involving JII. There is no action, suit or claim or legal, administrative or
arbitral proceeding or (whether or not the defense thereof or liabilities in
respect thereof are covered by insurance) pending or threatened against or
involving JII or any of its properties or assets. Except as set forth on
Schedule 3.7, there is no fact, event or circumstances that may give rise to any
suit, action, claim, investigation or proceeding.
3.8 Brokers or Finders. No broker's or finder's fee will be payable by
JII in connection with the transaction contemplated by this Agreement, nor will
any such fee be incurred as a result of any actions by JII.
3.9 Liabilities. JII does not have any direct or indirect indebtedness,
liability, claim, loss, damage, deficiency, obligation or responsibility, known
or unknown, fixed or unfixed, liquidated or unliquidated, secured or unsecured,
accrued or absolute, contingent or otherwise, including, without limitation, any
liability on account of taxes, any other governmental charge or lawsuit (all of
the foregoing collectively defined to as "Liabilities"), which were not fully,
fairly and adequately reflected on the December 31, 1998 Balance Sheet. As of
the Closing Date, JII will not have any Liabilities, other than Liabilities
fully and adequately reflected on the December 31, 1998 Sheet, except for
Liabilities incurred in the ordinary course of business.
3.10 OTC Bulletin Board Reporting Obligations. JII's shares of Common
Stock are listed on the OTC Bulletin Board under the symbol "JCKL." JII is
subject to the reporting obligations under Section 15(d) of the Act and has
filed all reports required to be filed by Section 15(d) of the Act.
3.11 Operations of JII. Except as set forth on Schedule 3.11, since
December 31, 1998 and through the Closing Date hereof, JII has not and will not
have:
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
(iii) made any loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or made any other
loan or advance otherwise than in the ordinary course of business;
7
(iv) except in the ordinary course of business, incurred or
assumed any indebtedness or liability (whether or not currently due and
payable);
(v) disposed of any assets of JII except in the ordinary
course of business; or
(vi) issued any equity securities or rights to acquire such
equity securities except as contemplated by the Stock Purchase Agreement.
3.12 Authority to Execute and Perform Agreements. JII has the full
legal right and power and all authority and approval required to enter into,
execute and deliver this Agreement and to perform fully its obligations
hereunder. This Agreement has been duly executed and delivered and is the valid
and binding obligation of JII enforceable in accordance with its terms, except
as may be limited by bankruptcy, moratorium, insolvency or other similar laws
generally affecting the enforcement of creditors' rights. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby and the performance by JII of this Agreement, in accordance with its
respective terms and conditions will not:
(i) require the approval or consent of any governmental or
regulatory body, the shareholders of JII, or the approval or consent of any
other person;
(ii) conflict with or result in any breach or violation of any
of the terms and conditions of, or constitute (or with any notice or lapse of
time or both would constitute) a default under, any order, judgment or decree
applicable to JII, or any instrument, contract or other agreement to which JII
is a party or by or to which JII is bound or subject; or
(iii) result in the creation of any lien or other encumbrance
on the assets or properties of JII.
3.13 Full Disclosure. No representation or warranty by JII in this
Agreement or in any document or schedule to be delivered by it pursuant hereto,
and no written statement, certificate or instrument furnished or to be furnished
to FLLC or the FLLC members pursuant hereto or in connection with the execution
or performance of this Agreement contains or will contain any untrue statement
of a material fact or omits or will omit to state any fact necessary to make any
statement herein or therein not materially misleading or necessary to a complete
and correct presentation of all material aspects of the business of JII.
SECTION 4. COVENANTS
- ---------------------
4.1 Corporate Examinations and Investigations. Prior to the Closing
Date, the parties acknowledge that they have been entitled, through their
employees and
8
representatives, to make such investigation and verification of the assets,
properties, business and operations, books, records and financial condition of
the other, including communications with suppliers, vendors and customers, as
they each may reasonably require. No investigation by a party hereto shall,
however, diminish or waive in any way any of the representations, warranties,
covenants or agreements of the other party under this Agreement. Consummation of
this Agreement shall be subject to the fulfillment of due diligence procedures
to the reasonable satisfaction of each of the parties hereto and their
respective counsel.
4.2 Expenses. Each party hereto agrees to pay its own costs and
expenses incurred in negotiating this Agreement and consummating the
transactions described herein.
4.3 Further Assurances. The parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby. Each such party shall use its best efforts to fulfill or obtain the
fulfillment of the conditions to the Closing, including, without limitation, the
execution and delivery of any documents or other papers, the execution and
delivery of which are necessary or appropriate to the Closing.
4.4 Confidentiality. In the event the transactions contemplated by this
Agreement are not consummated, each of the parties hereto agree to keep
confidential any information disclosed to each other in connection therewith for
a period of two (2) years from the date hereof; provided, however, such
obligation shall not apply to information which:
(i) at the time of disclosure was public knowledge;
(ii) after the time of disclosure becomes public knowledge
(except due to the action of the receiving party); or
(iii) the receiving party had within its possession at the
time of disclosure.
4.5 Stock Certificates and Consideration. At the Closing, FLLC shall
have delivered the certificates representing the FLLC Shares duly endorsed (or
with executed stock powers) so as to make JII the sole owner thereof. At such
Closing, JII shall issue to FLLC the JII Shares as provided herein.
4.6 Management of JII. On the Closing Date, the present officers and
directors of JII (and any other persons) shall resign as officers and directors
of JII and the directors and officers designated by FLLC shall be elected by
JII.
9
SECTION 5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF JII
- -------------------------------------------------------------
Notwithstanding any right of FLLC fully to investigate the affairs of
JII, the former shall have the right to rely fully upon the representations,
warranties, covenants and agreements of JII contained in this Agreement or in
any document delivered by JII or any of its representatives, in connection with
the transactions contemplated by this Agreement. All such representations,
warranties, covenants and agreements shall survive the execution and delivery
hereof and the Closing Date hereunder for twelve (12) months following the
Closing.
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE FLLC
MEMBERS
- ------------------------------------------------------------------
Notwithstanding any right of JII fully to investigate the affairs of
FLLC, JII has the right to rely fully upon the representations, warranties,
covenants and agreements of FLLC contained in this Agreement or in any document
delivered to JII by the latter or any of their representatives in connection
with the transactions contemplated by this Agreement. All such representations,
warranties, covenants and agreements shall survive the execution and delivery
hereof and the Closing Date hereunder for twelve (12) months following the
Closing.
SECTION 7. INDEMNIFICATION
- ---------------------------
7.1 Obligation of JII to Indemnify. Subject to the limitations on the
survival of representations and warranties contained in Section 5, JII hereby
agrees to indemnify, defend and hold harmless FLLC from and against any losses,
liabilities, damages, deficiencies, costs or expenses (including interest,
penalties and reasonable attorneys' fees and disbursements) (a "Loss") based
upon, arising out of or otherwise due to any inaccuracy in or any breach of any
representation, warranty, covenant or agreement of JII contained in this
Agreement or in any document or other writing delivered pursuant to this
Agreement.
7.2 Obligation of FLLC to Indemnify. Subject to the limitations on the
survival of representations and warranties contained in Section 6, FLLC agrees
to indemnify, defend and hold harmless JII to the extent provided for herein,
from and against any Loss, based upon, arising out of or otherwise due to any
inaccuracy in or any breach of any representation, warranty, covenant or
agreement made by any of them and contained in this Agreement or in any document
or other writing delivered pursuant to this Agreement.
SECTION 8. THE CLOSING
- -----------------------
The Closing shall take place simultaneously with the execution hereof.
At the Closing, the parties shall provide each other with such documents as may
be necessary
10
or appropriate and customary in transactions of this sort in order to consummate
the transactions contemplated hereby including evidence of due authorization of
the Agreement and the transactions contemplated hereby.
SECTION 9. MISCELLANEOUS
- -------------------------
9.1 Waivers. The waiver of a breach of this Agreement or the failure of
any party hereto to exercise any right under this Agreement shall in no event
constitute waiver as to any future breach whether similar or dissimilar in
nature or as to the exercise of any further right under this Agreement.
9.2 Amendment. This Agreement may be amended or modified only by an
instrument of equal formality signed by the parties or the duly authorized
representatives of the respective parties.
9.3 Assignment. This Agreement is not assignable except by operation
of law.
9.4 Notices. Until otherwise specified in writing, the mailing
addresses of both parties of this Agreement shall be as follows:
FLLC: FACT SOUTH LLC
====================
JII: JACKAL INDUSTRIES, INC.
====================
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address which shall have been furnished in
writing to the addressor.
9.5 Governing Law. This Agreement shall be construed, and the legal
relations be the parties determined, in accordance with the laws of the State of
Nevada, thereby precluding any choice of law rules which may direct the
application of the laws of any other jurisdiction.
9.6 Publicity. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by either
party hereto at any time from the signing hereof without advance approval in
writing of the form and substance thereof by the other party.
9.7 Entire Agreement. This Agreement (including the Exhibits and
Schedules hereto) and the collateral agreements executed in connection with the
consummation of
11
the transactions contemplated herein contain the entire agreement among the
parties with respect to the purchase and issuance of the FLLC Shares and the JII
Shares and related transactions, and supersede all prior agreements, written or
oral, with respect thereto.
9.8 Headings. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
9.9 Severability of Provisions. The invalidity or unenforceability of
any term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
9.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
JACKAL INDUSTRIES, INC.
By: /s/ Krista Nielson
------------------
Name: Krista Nielson
Its: President
FACT SOUTH LLC
By: /s/ Spiro Lazarou
------------------
Name: Spiro Lazarou
Its: President
12