UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 29, 2000
Future Carz.com, Inc. (OTCBB: FCZI)
(Exact name of Registrant as specified in charter)
Nevada 0-29435 88-0431029
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification)
8930 E. Raintree, Suite 300, Scottsdale, AZ 85260
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (972) 484-3900
12624 Carmel Country Rd., Suite 82, San Diego, CA 92130
(Former name or former address, if changed, since last report)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
(a) On 22 February, 2001, the board of directors of Future
Carz.com, Inc. approved an asset purchase with Auto Central
Discount, Inc., an Nevada corporation. The board of
directors of Auto Central Discount, Inc. approved the asset
purchase on the same day. The asset purchase was
consummated on 22 February 2001. The property acquired by
Future Carz.com, Inc., consists of Title for the vehicle
lease inventory of 45 automobiles, including all
accompanying books and records, and accounts receivables.
Pursuant to the terms of the asset purchase, two million
(2,000,000) common share of Future Carz.com, Inc. was
exchanged for the aforementioned assets. Said shares shall
be restricted, but with piggyback registration rights. The
principal followed in determining the amount of
consideration given was based upon the current value and
future revenue stream of the lease agreements, and the
market exposure in relation to FCZI's current position and
the restrictive nature of the stock.
Additionally, on 23 February, 2001, the board of
directors of Future Carz.com, Inc. approved an asset
purchase with American Automotive Group, Inc. an Arizona
/1/
corporation. The board of directors of Auto
Central Discount, Inc. approved the asset purchase
on the same day. The asset purchase was consummated
on 23 February 2001. The property acquired by
Future Carz.com, Inc., consists of the Titles for
the vehicle lease inventory of automobiles,
including all accompanying books and records, and
accounts receivables as well as a full complement of
office furniture to include desks and chairs,
computer equipment, phones, printers, shelves, etc.
Pursuant to the terms of the asset purchase, three
million (3,000,000) common share of Future Carz.com,
Inc. was exchanged for the aforementioned assets.
Said shares shall be restricted, but with piggyback
registration rights. The principal followed in
determining the amount of consideration given was
based upon the current value and future revenue
stream of the lease agreements, and the market
exposure in relation to FCZI's current position and
the restrictive nature of the stock. Upon
completion of this asset purchase Terry Nield, who
was a minority shareholder of Auto Central Discount,
Inc., shall hold greater than 10% of the issued and
outstanding shares of FCZI due to these two
transactions
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Exhibit No. 1: Auto Purchase Agreement between future
Carz.com, Inc. Auto Central Discount, Inc
Exhibit No. 2: Auto Purchase Agreement between future
Carz.com, Inc. and American Automotive Group, Inc.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange
Act of 1934, the registrant has duly caused this Report to
be signed on its behalf by the undersigned hereunto duly
authorized.
Date: 09 March, 2001
Future Carz.com, Inc.
By: /s/ Edward Heisler
--------------------
Edward Heisler, President
/2/
Asset Purchase Agreement
This Asset Purchase Agreement (the "Agreement") is made
and entered into this 22nd day of February 2001, by and
between Auto Central Discount, Inc., a Nevada corporation
("Seller") and Future Carz, Inc., a Nevada corporation
("Buyer"), as joined by DP Warren Consulting, LLC ("DP
Warren").
RECITALS
A. Seller is the owner of certain assets, a complete
listing of which is attached hereto and incorporated herein
by reference at Exhibit A (the "Assets").
B. Buyer desires to purchase and acquire from Seller
such Assets, and Seller desires to transfer and convey the
same to Buyer, in accordance with the terms and conditions
of this Agreement.
C. Buyer desires to engage DP Warren to provide
advisory services to Seller and DP Warren desires to provide
such services.
NOW, THEREFORE, in consideration of the mutual
representations, warranties and covenants contained herein,
and on the terms and subject to the conditions herein set
forth, the parties hereby agree as follows:
ARTICLE I
Definitions
As used in this Agreement, the following terms shall
have the meanings set forth below:
1.1 Closing. "Closing" shall mean the closing of the
transaction contemplated by this Agreement, which shall
occur at 10:00 a.m., Local Time, on the Closing Date in the
offices of Seller, or at such other time and place as shall
be mutually agreed in writing by the parties hereto.
1.2 Closing Date. "Closing Date" shall mean March l,
2001, unless otherwise mutually agreed in writing by the
parties hereto.
ARTICLE II
Purchase and Sale
2.1 Sale and Purchase of Assets. Subject to and upon
the terms and conditions contained herein, at the Closing,
Seller shall sell, transfer, assign, convey, and deliver to
Buyer (free and clear of all liens, claims and encumbrances,
except as set forth in Article 4), and Buyer shall purchase,
accept and acquire from Seller the Assets.
/3/
2.2 Purchase Price. The total purchase price for the
Assets shall be TWO MILLION (2,000,000) shares of the
restricted common stock of Buyer, representing no less than
15.48% of the issued and outstanding common stock of Buyer
at the time of issuance of the stock to Seller. Holders of
the shares of the restricted stock shall have piggyback
registration rights (subject to customary underwriting
cutbacks applied on a prorata basis).
2.3 Instruments of Transfer; Further Assurances.
(a) At the Closing, Seller shall deliver to Buyer:
(i) An assignment of each Asset, in form
and substance satisfactory to Buyer; and
(ii) Such other instrument or instruments of
transfer as shall be necessary or
appropriate, as Buyer shall reasonably
request, to vest in Buyer good and
marketable title to the Assets.
(b) At the Closing, Buyer shall deliver to Seller:
(i) Subject to the provisions of Section 2.2, a certificate
representing two million (2,000,000) shares of restricted
common stock of Buyer, issued in the name of Seller; and
(ii) Such other instrument or instruments as shall be necessary
or appropriate, as Seller shall reasonably request.
ARTICLE III
Representations and Warranties of Buyer
Buyer represents and warrants that the following are
true and correct as of this date and will be true and
correct through the Closing Date as if made on that date:
3.1 Organization and Good Standing. Buyer is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada, with all the
requisite power and authority to carry on the business in
which it is engaged, to own the properties it owns and to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
3.2 Authorization and Validity. The execution, delivery
and performance by Buyer of this Agreement and the other
agreements contemplated hereby, and the consummation of the
transactions contemplated hereby, have been duly authorized
by Buyer. This Agreement and each other agreement
contemplated hereby have been or will be prior to Closing
duly executed and delivered by Buyer and constitute or will
constitute legal, valid and binding obligations of Buyer,
enforceable against Buyer in accordance with their
respective terms.
3.3 No Violation. Neither the execution and performance
of this Agreement or the other agreements contemplated
hereby, nor the consummation of the transactions
contemplated hereby
/4/
or thereby, will (a) conflict with, or result in a breach of
the terms, conditions and provisions of, or constitute a
default under, the Articles of Incorporation or Bylaws of
Buyer or any agreement, indenture or other instrument under
which Buyer is bound, or (b) violate or conflict with any
judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or
body having jurisdiction over Buyer or the properties or
Assets of Buyer.
3.4 Consents. No authorization, consent, approval,
permit or license of, or filing with, any governmental or
public body or authority, any lender, lessor or any other
person or entity is required to authorize, or is required in
connection with, the execution, delivery and performance of
this Agreement or the agreements contemplated hereby on the
part of Buyer.
3.5 Accuracy of Information Furnished. All information
furnished to Seller by Buyer is true, correct and complete
in all material respects. Such information states all
material facts required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which such statements are made, true, correct and
complete.
3.6 No Fees. Buyer has no obligation to pay any
commissions or finders fees to any parties.
3.7 As Is. The Assets to be transferred by Seller to
Buyer under this Agreement are being purchased on an "AS IS"
basis. BUYER FURTHER ACKNOWLEDGES THAT NO EXPRESS
WARRANTIES, OTHER THAN AS SET FORTH HEREIN, HAVE BEEN MADE
BY SELLER, ITS OFFICERS, DIRECTORS, AGENTS OR SHAREHOLDERS
AND THAT NO IMPLIED WARRANTIES, FOR ANY PARTICULAR PURPOSE,
HAVE BEEN MADE BY SELLER, ITS OFFICERS, DIRECTORS, AGENTS,
OR SHAREHOLDERS.
ARTICLE IV
Representations and Warranties of Seller
Seller represents and warrants that the following are
true and correct as of this date and will be true and
correct through the Closing Date as if made on that date:
4.1 Organization and Good Standing. Seller is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada, with all the
requisite power and authority to carry on the business in
which it is engaged, to own or lease the properties it owns
or leases and to execute and deliver this Agreement and to
consummate the transactions contemplated hereby.
4.2 Authorization and Validity. The execution,
delivery and performance by Seller of this Agreement and the
other agreements contemplated hereby, and the consummation
of the transactions contemplated hereby, have been duly
authorized by Seller. This Agreement and each other
agreement contemplated hereby have been or will be prior to
Closing duly executed and delivered by Seller and constitute
or will constitute legal, valid and binding obligations of
Seller, enforceable against Seller in accordance with their
respective terms.
/5/
4.3 Title. Except as set forth in Exhibit 4.3, Seller
has good and marketable title to the Assets, which are the
subject of this Agreement. Upon consummation of the
transactions contemplated hereby, Buyer shall receive good,
valid and marketable title to all the Assets free and clear
of all liens, claims, and encumbrances, except as set forth
in Exhibit 4.3.
4.4 Commitments. Except as set forth in Exhibit 4.4,
Seller has not entered into, nor are the Assets or the
business of Seller bound by, whether or not in writing, any
(i) partnership or joint venture agreement; (ii) deed of
trust or other security agreement; (iii) guaranty or
suretyship, indemnification or contribution agreement or
performance bond; (iv) employment, consulting or
compensation agreement or arrangement, including the
election or retention in office of any director or officer;
(v) labor or collective bargaining agreement; (vi) debt
instrument, loan agreement or other obligation relating to
indebtedness for borrowed money or money lent to another;
(vii) deed or other document evidencing an interest in or
contract to purchase or sell real property; (viii) agreement
with dealers or sales or commission agents, public relations
or advertising agencies, accountants or attorneys; (ix)
lease of real or personal property, whether as lessor,
lessee, sublessor, or sublessee; (x) agreement relating to
any material matter or transaction in which an interest is
held by a person or entity which is an affiliate of Seller;
(xi) powers of attorney; or (xii) contracts containing
noncompetition covenants.
4.5 Adverse Agreements. Seller is not a party to any
agreement or instrument or subject to any charter or other
corporate restriction or any judgment, order, writ,
injunction, decree, rule or regulation which materially and
adversely affects or, so far as Seller can now foresee, may
in the future materially and adversely affect the business
operations, prospects, properties, Assets or condition,
financial or otherwise, of Seller.
4.6 No Violation. Neither the execution and performance
of this Agreement or the other agreements contemplated
hereby, nor the consummation of the transactions
contemplated hereby or thereby, will (a) conflict with, or
result in a breach of the terms, conditions and provisions
of, or constitute a default under, the Articles of
Incorporation or Bylaws of Seller or any agreement,
indenture or other instrument under which Buyer is bound, or
(b) violate or conflict with any judgment, decree, order,
statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having
jurisdiction over Seller or the properties or Assets of
Seller.
4.7 Consents. No authorization, consent, approval,
permit or license of, or filing with, any governmental or
public body or authority, any lender, lessor or any other
person or entity is required to authorize, or is required in
connection with, the execution, delivery and performance of
this Agreement or the agreements contemplated hereby on the
part of Seller.
4.8 Compliance with Laws. There are no existing
violations by Seller of any applicable federal, state or
local law or regulation, except to the extent that any such
violations would not have a material adverse effect on the
property or business of Seller.
4.9 Accuracy of Information Furnished. All information
furnished to Buyer by Seller is true, correct and complete
in all material respects. Such information states all
material facts
/6/
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under
which such statements are made, true, correct and complete.
4.10 Proceedings. No action, proceeding or order by any
court or governmental body or agency shall have been
threatened in writing, asserted, instituted or entered to
restrain or prohibit the carrying out of the transactions
contemplated by this Agreement.
4.11 No Fees. Seller has no obligation to pay any
commissions or finders fees to any parties.
ARTICLE V
Liabilities and Obligations to be Assumed
5.1 Assumed Liabilities and Obligations. Except for the
following described liabilities and obligations, all other
liabilities and obligations incurred by Seller before
Closing shall remain the liabilities and obligations of
Seller:
(a) The liabilities and obligations relating to the
leased spaces located at Scottsdale, Arizona, San
Diego, California and Henderson, Nevada, as described
on Exhibit 5.1(a);
(b) The engagement agreement with DP Warren as
described in Article VI; and
(c) The debts owing to various third parties in
the amount of $225,000.00, as described on Exhibit
5.1(c).
ARTICLE VI
Engagement
6.1 Engagement. At the Closing, Buyer shall immediately
engage DP Warren to provide advisory services to Buyer for a
period of not more than 36 months. In the event Buyer elects
to terminate the services of DP Warren or in the event DP
Warren elects to terminate services to Buyer, for any
reason, DP Warren shall be under no obligation to return any
of the stock of Buyer received by DP Warren as a shareholder
of Seller.
ARTICLE VII
Indemnification
7.1 Seller's Indemnity. Subject to the terms of this
Section, Seller hereby agrees to indemnify, defend and hold
harmless Buyer and its officers, directors, agents,
shareholders, attorneys, accountants and affiliates from and
against any and all losses, claims, obligations, demands,
assessments, penalties, liabilities, costs, damages,
reasonable attorneys' fees and
/7/
expenses asserted against or incurred by Buyer by reason of
or resulting from a breach by Seller of any representation,
warranty or covenant contained herein, or in any agreement
executed pursuant thereto.
7.2 Buyer's Indemnity. Subject to the terms of this
Section, Buyer hereby agrees to indemnify, defend and hold
harmless Seller and its officers, directors, agents,
shareholders, attorneys, accountants and affiliates from and
against any and all losses, claims, obligations, demands,
assessments, penalties, liabilities, costs, damages,
reasonable attorneys' fees and expenses asserted against or
incurred by Seller by reason of or resulting from a breach
by Buyer of any representation, warranty or covenant
contained herein, or in any agreement executed pursuant
thereto.
7.3 Remedies Not Exclusive. The remedies provided for
in this Section shall not be exclusive of any other rights
or remedies available by one party against the other, either
at law or in equity.
ARTICLE VIII
Termination
8.1 Termination , or Cause. This Agreement may be
terminated prior to Closing upon notice to the other party
at any time by a party if any representation or warranty of
the other party contained in this Agreement or in any
certificate or other document executed and delivered by one
party to the other is or becomes untrue or breached in any
material respect or if one party fails to comply in any
material respect with any covenant or agreement contained
herein, and any such misrepresentation, breach or
noncompliance is not cured, waived, or eliminated before
Closing.
8.2 Termination Without Cause. Anything herein or
elsewhere to the contrary notwithstanding, this Agreement
may be terminated and abandoned at any time without further
obligation or liability on the part of any party in favor of
any other by mutual consent of Purchaser and Seller.
ARTICLE IX
Miscellaneous Provisions
9.1 Amendment and Modification. Subject to applicable
law, this Agreement may be amended, modified or supplemented
only by a written agreement signed by Buyer and Seller.
9.2 Waiver of Compliance: Consents.
9.2.1 Any failure of any party to comply with any
obligation, covenant, agreement or condition herein may be
waived by the party entitled to the performance of such
obligation, covenant or agreement or who has the benefit of
such condition, but such waiver or failure to
/8/
insist upon strict compliance with such obligation,
covenant, or agreement or condition will not operate as a
waiver of, or estoppel with respect to, any subsequent or
other failure.
9.2.2 Whenever this Agreement requires or permits
consent by or on behalf of any party hereto, such consent
will be given in a manner consistent with the requirements
for a waiver of compliance as set forth above.
9.3 Notices. All Notices, requests, demands and other
communications required or permitted hereunder will be in
writing and will be deemed to have been duly given when
delivered by (i) hand; (ii) reliable overnight delivery
service; or (iii) facsimile transmission.
If to Buyer, to: 8930 East Raintree, Suite 300,
Scottsdale, AZ 85260
If to Seller, to: 3168 East Indian School Road,
Phoenix AZ, 85016
9.4 Titles and Captions. All section titles or
captions contained in this Agreement are for convenience
only and shall not be deemed part of the context nor effect
the interpretation of this Agreement.
9.5 Entire Agreement. This Agreement contains the
entire understanding between and among the parties and
supersedes any prior understandings and agreements among
them respecting the subject matter of this Agreement.
9.6 Agreement Binding. This Agreement shall be binding
upon the heirs, executors, administrators, successors and
assigns of the parties hereto.
9.7 Attorneys' Fees. In the event an arbitration, suit
or action is brought by any party under this Agreement to
enforce any of its terms, or in any appeal therefrom, it is
agreed that the prevailing party shall be entitled to
reasonable attorneys fees to be fixed by the arbitrator,
trial court, and/or appellate court.
9.8 Computation of Time. In computing any period of
time pursuant to this Agreement, the day of the act, event
or default from which the designated period of time begins
to run shall be included, unless it is a Saturday, Sunday or
a legal holiday, in which event the period shall begin to
run on the next day that is not a Saturday, Sunday or legal
holiday.
9.9 Pronouns and Plurals. All pronouns and any
variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural as the
identity of the person or persons may require.
9.10 Governing Law. This Agreement and the rights and
obligations of the parties hereto shall be governed,
construed and enforced in accordance with the laws of the
State of Nevada. The parties agree that any litigation
relating directly or indirectly to this Agreement must be
brought before and determined by a court of competent
jurisdiction within the State of Arizona.
/9/
9.11 Presumption. This Agreement or any Section
thereof shall not be construed against any party due to the
fact that said Agreement or any section thereof was drafted
by said party.
9.12 Further Action. The parties hereto shall execute
and deliver all documents, provide all information and take
or forbear from all such action as may be necessary or
appropriate to achieve the purposes of the Agreement.
9.13 Parties in Interest. Nothing herein shall be
construed to be to the benefit of any third party, not is it
intended that any provision shall be for the benefit of any
third party.
9.14 Savings Clause. If any provision of this
Agreement, or the application of such provision to any
person or circumstance, shall be held invalid, the remainder
of this Agreement, or the application of such provision to
persons or circumstances other than those as to which it is
held invalid, shall not be affected hereby.
9.15 Confidentiality. The parties shall keep this
Agreement and its terms confidential, but any party may make
such disclosures as it reasonably considers are required by
law or necessary to obtain financing or for other reasonable
business purposes. In the event that the transactions
contemplated by this Agreement are not consummated for any
reason whatsoever, the parties hereto agree not to disclose
or use any confidential information they may have concerning
the affairs of other parties, except for information which
is required by law to be disclosed. Confidential information
includes, but is not limited to, financial records, surveys,
reports, plans, proposals, financial information,
information relating to personnel contracts, stock
ownership, liabilities and litigation. Buyer and Seller must
each approve the content of all press releases or public
filings regarding this transaction.
9.16 Costs. Expenses and Legal Fees. Whether or not
the transactions contemplated hereby are consummated, each
party hereto shall bear its own costs and expenses
(including attorneys' fees), except as set forth in the
Escrow Agreement.
9.17 Severability. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under
present or future laws effecting during the term hereof,
such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid
or unenforceable provision never comprised a part hereof;
and the remaining provisions hereof shall remain in full
force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid and
unenforceable provision, there shall be added automatically
as part of this Agreement a provision as similar in nature
in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and
enforceable.
9.18 Counterparts and Facsimile Signatures. This
Agreement may be executed 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. For
purposes of this Agreement, facsimile signatures shall be
treated as originals until such time that applicable pages
bearing non-facsimile signatures are obtained from the
relevant party or parties.
9.19 Continuing Nature. All representations and
warranties contained in this Agreement shall survive the
Closing for a period of one (1) year and, if applicable, all
covenants, which,
/10/
according to their terms are to be
performed after the execution of this Agreement, shall
survive the Closing for a period of one (1) year.
9.20 Taxes. For Federal income tax purposes, Buyer and
Seller intend that this transaction shall qualify as a
reorganization under the provision of Section 368 of the
Internal Revenue Code of 1986, as amended.
[Signature Page Follows]
/11/
IN WITNESS WHEREOF, the parties hereto have set their
hands this 22nd day of February, 2001.
SELLER:
AUTO CENTRAL DISCOUNT, INC., a
Nevada corporation
By /s/Douglas P. Warren
---------------------
Douglas P. Warren
Its President
BUYER:
FUTURE CARZ, INC., a Nevada
corporation
By /s/ Edward Heisler
--------------------
Edward Heisler
Its President
AS JOINED BY:
DP WARREN CONSULTING, LLC, an
Arizona limited liability company
By /s/ Douglas P. Warren
-----------------------
Douglas P. Warren
Its Member
/12/
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made
and entered into this 23rd day of February, 2001, by and
between American Automotive Group, Inc., an Arizona
corporation ("Seller") and Future Carz, Inc., a Nevada
corporation ("Buyer").
RECITALS
A. Seller is the owner of certain assets, including
assets titled under the name of American Automotive Leasing,
LLC and/or Sunset Crater Leasing, Inc. (which are controlled
by Seller) a complete listing of which is attached hereto
and incorporated herein by reference at Exhibit A (the
"Assets").
B. Buyer desires to purchase and acquire from Seller
such Assets, and Seller desires to transfer and convey the
same to Buyer, in accordance with the terms and conditions
of this Agreement.
C. Contemporaneously with the closing (as hereinafter
defined), Seller and Buyer will enter into a noncompetition
agreement (the form of which is attached hereto as Exhibit
B).
NOW, THEREFORE, in consideration of the mutual
representations, warranties and covenants contained herein,
and on the terms and subject to the conditions herein set
forth, the parties hereby agree as follows:
ARTICLE I
Definitions
As used in this Agreement, the following terms
shall have the meanings set forth below:
1.1 Closing. "Closing" shall mean the closing of the
transaction contemplated by this Agreement, which shall
occur at 10:00 a.m., Local Time, on the Closing Date in the
offices of Seller, or at such other time and place as shall
be mutually agreed in writing by the parties hereto.
1.2 Closing Date. "Closing Date" shall mean February
23rd, 2001, unless otherwise mutually agreed in writing by
the parties hereto.
ARTICLE B
Purchase and Sale
2.1 Sale and Purchase of Assets. Subject to and upon
the terms and conditions contained herein, at the Closing,
Seller shall sell, transfer, assign, convey, and deliver to
Buyer (free and clear of all liens, claims and encumbrances,
except as set forth in Article 4), and Buyer shall purchase,
accept and acquire from Seller the Assets.
/13/
2.2 Purchase Price. The total purchase price for the
Assets shall be THREE MILLION (3,000,000) shares of common
stock of Buyer, representing no less than 23.23% of the
issued and outstanding common stock of Buyer at the time of
issuance of the stock to Seller. Holders of such shares
(including current holders of Seller's promissory notes, to
whom such shares may be transferred) shall have piggyback
registration rights (subject to customary underwriting
cutbacks applied on a prorata basis).
2.3 Instruments of Transfer; Further Assurances.
(a)At the Closing, Seller shall deliver to an
escrow agent acceptable to Buyer and Seller
("Escrow Agent):
(i) An assignment of each Asset, in form
and substance satisfactory to Buyer;
(ii) Such other instrument or instruments of
transfer as shall be necessary or
appropriate, as Buyer shall reasonably
request, to vest in Buyer good and
marketable title to the Assets.
(b) At the Closing, Buyer shall deliver to the
Escrow Agent:
(i) A certificate representing three
million (3,000,000) shares of restricted
common stock of Buyer, issued in the name
of Seller.
(ii) Such other instrument or instruments as
shall be necessary or appropriate, as
Seller shall reasonably request.
2.4 Escrow of Shares and Instruments of Transfer. The
Escrow Agent shall hold the shares and the instruments of
transfer according to the terms of the Escrow Agreement (the
form of which is attached hereto as Exhibit C) to be
executed by Buyer, Seller and Escrow Agent.
ARTICLE III
Representations and Warranties of Buyer
Buyer represents and warrants that the following are
true and correct as of this date and will be true and
correct through the Closing Date as if made on that date:
3.1 Organization and Good Standing. Buyer is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada, with all the
requisite power and authority to carry on the business in
which it is engaged, to own the properties it owns and to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
3.2 Authorization and validity. The execution, delivery
and performance by Buyer of this Agreement and the other
agreements contemplated hereby, and the consummation of the
transactions contemplated hereby, have been duly authorized
by Buyer. This Agreement and each other agreement
contemplated hereby have been or will be prior to Closing
duly executed
/14/
and delivered by Buyer and constitute or will constitute
legal, valid and binding obligations of Buyer, enforceable
against Buyer in accordance with their respective terms.
3.3 No Violation. Neither the execution and
performance of this Agreement or the other agreements
contemplated hereby, nor the consummation of the
transactions contemplated hereby or thereby, will (a)
conflict with, or result in a breach of the terms,
conditions and provisions of, or constitute a default under,
the Articles of Incorporation or Bylaws of Buyer or any
agreement, indenture or other instrument under which Buyer
is bound, or (b) violate or conflict with any judgment,
decree, order, statute, rule or regulation of any court or
any public, governmental or regulatory agency or body having
jurisdiction over Buyer or the properties or Assets of
Buyer.
3.4 Consents. No authorization, consent, approval,
permit or license of, or filing with, any governmental or
public body or authority, any lender or lessor or any other
person or entity is required to authorize, or is required in
connection with, the execution, delivery and performance of
this Agreement or the agreements contemplated hereby on the
part of Buyer.
3.5 Accuracy of Information Furnished. All information
furnished to Seller by Buyer is true, correct and complete
in all material respects. Such information states all
material facts required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which such statements are made, true, correct and
complete.
3.6 No Fees. Buyer has no obligation to pay any
commissions or finders fees to any parties.
3.7 As Is. The Assets to be transferred by Seller to
Buyer under this Agreement are being purchased on an "AS IS"
basis. BUYER FURTHER ACKNOWLEDGES THAT NO EXPRESS
WARRANTIES, OTHER THAN AS SET FORTH HEREIN, HAVE BEN MADE BY
SELLER, ITS OFFICERS, DIRECTORS, AGENTS OR SHAREHOLDERS AND
THAT NO IMPLIED WARRANTIES, FOR ANY PARTICULAR PURPOSE, HAVE
BEEN MADE BY SELLER, ITS OFFICERS, DIRECTORS, AGENTS, OR
SHAREHOLDERS.
ARTICLE IV
Representations and Warranties of Seller
Seller represents and warrants that the following are
true and correct as of this date and will be true and
correct through the Closing Date as if made on that date:
4.1 Organization and Good Standing. Seller is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Arizona, with all
the requisite power and authority to carry on the business
in which it is engaged, to own the properties it owns and to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
4.2 Authorization and validity. The execution,
delivery and performance by Seller of this Agreement and the
other agreements contemplated hereby, and the consummation
of the transactions contemplated hereby, have been duly
authorized by Seller. This Agreement and
/15/
each other agreement contemplated hereby have been or will
be prior to Closing duly executed and delivered by Seller
and constitute or will constitute legal, valid and binding
obligations of Seller, enforceable against Seller in
accordance with their respective terms.
4.3 Title. Except as set forth in Exhibit 4.3, Seller
has good and marketable title to the Assets which are the
subject of this Agreement. Upon consummation of the
transactions contemplated hereby, Buyer shall receive good,
valid and marketable title to all the Assets free and clear
of all liens, claims, and encumbrances, except as set forth
in Exhibit 4.3.
4.4 Commitments. Except as set forth in Exhibit 4.4,
Seller has not entered into, nor are the Assets or the
business of Seller bound by, whether or not in writing, any
(i) partnership or joint venture agreement; (ii) deed of
trust or other security agreement; (iii) guaranty or
suretyship, indemnification or contribution agreement or
performance bond; (iv) employment, consulting or
compensation agreement or arrangement, including the
election or retention in office of any director or officer;
(v) labor or collective bargaining agreement; (vi) debt
instrument, loan agreement or other obligation relating to
indebtedness for borrowed money or money lent to another;
(vii) deed or other document evidencing an interest in or
contract to purchase or sell real property; (viii) agreement
with dealers or sales or commission agents, public relations
or advertising agencies, accountants or attorneys; (ix)
lease of real or personal property, whether as lessor,
lessee, sublessor, or sublessee; (x) agreement relating to
any material matter or transaction in which an interest is
held by a person or entity which is an affiliate of Seller;
(xi) powers of attorney; or (xii) contracts containing
noncompetition covenants.
4.5 Adverse Agreements. Seller is not a party to any
agreement or instrument or subject to any charter or other
corporate restriction or any judgment, order, writ,
injunction, decree, rule or regulation which materially and
adversely affects or, so far as Seller can now foresee, may
in the future materially and adversely affect the business
operations, prospects, properties, Assets or condition,
financial or otherwise, of Seller.
4.6 No Violation. Except as set forth in Exhibit 4.6,
neither the execution and performance of this Agreement or
the other agreements contemplated hereby, nor the
consummation of the transactions contemplated hereby or
thereby, will (a) conflict with, or result in a breach of
the terms, conditions and provisions of, or constitute a
default under, the Articles of Incorporation or Bylaws of
Seller or any agreement, indenture or other instrument under
which Buyer is bound, or (b) violate or conflict with any
judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or
body having jurisdiction over Seller or the properties or
Assets of Seller.
4.7 Consents. Except as set forth in Exhibit 4.7, no
authorization, consent, approval, permit or license of, or
filing with, any governmental or public body or authority,
any lender or lessor or any other person or entity is
required to authorize, or is required in connection with,
the execution, delivery and performance of this Agreement or
the agreements contemplated hereby on the part of Seller.
/16/
4.8 Compliance with Laws. Except as set forth in
Exhibit 4.8, there are no existing violations by Seller of
any applicable federal, state or local law or regulation,
except to the extent that any such violations would not have
a material adverse effect on the property or business of
Seller. Any existing violations of applicable federal, state
or local laws or regulations, whether disclosed in Exhibit
4.8 or not, shall be the sole responsibility of Seller, and
Seller hereby indemnifies and holds harmless Buyer from any
and all losses as a result of said violations, whether
disclosed or not.
4.9 Accuracy of Information Furnished. All information
furnished to Buyer by Seller is true, correct and complete
in all material respects. Such information states all
material facts required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which such statements are made, true, correct and
complete.
4.10 Proceedings. No action, proceeding or order by any
court or governmental body or agency shall have been
threatened in writing, asserted, instituted or entered to
restrain or prohibit the carrying out of the transactions
contemplated by this Agreement.
4.11 No Fees. Seller has no obligation to pay any
commissions or finders fees to any parties.
ARTICLE V
Indemnification
5.1 Seller's Indemnity. Subject to the terms of this
Section, Seller hereby agrees to indemnify, defend and hold
harmless Buyer and its officers, directors, agents,
attorneys, accountants and affiliates from and against any
and all losses, claims, obligations, demands, assessments,
penalties, liabilities, costs, damages, reasonable
attorneys' fees and expenses ("Damages") asserted against or
incurred by Buyer by reason of or resulting from a breach by
Seller of any representation, warranty or covenant contained
herein, or in any agreement executed pursuant thereto, or
due to any violations of law as discussed in Section 4.8
above.
5.2 Buyer's Indemnity. Subject to the terms of this
Section, Buyer hereby agrees to indemnify, defend and hold
harmless Seller and its officers, directors, agents,
attorneys, accountants and affiliates from and against any
and all losses, claims, obligations, demands, assessments,
penalties, liabilities, costs, damages, reasonable
attorneys' fees and expenses ("Damages") asserted against or
incurred by Seller by reason of or resulting from a breach
by Buyer of any representation, warranty or covenant
contained herein, or in any agreement executed pursuant
thereto.
5.3 Remedies Not Exclusive. The remedies provided for
in this Section shall not be exclusive of any other rights
or remedies available by one party against the other, either
at law or in equity.
/17/
ARTICLE VI
Termination
6.1 Termination for Cause. This Agreement may be
terminated prior to Closing upon notice to the other party
at any time by a party if any representation or warranty of
the other party contained in this Agreement or in any
certificate or other document executed and delivered by one
party to the other is or becomes untrue or breached in any
material respect or if one party fails to comply in any
material respect with any covenant or agreement contained
herein, and any such misrepresentation, breach or
noncompliance is not cured, waived, or eliminated before
Closing.
6.2 Termination Without Cause. Anything herein or
elsewhere to the contrary notwithstanding, this Agreement
may be terminated and abandoned at any time without further
obligation or liability on the part of any party in favor of
any other by mutual consent of Purchaser and Seller.
ARTICLE VII
Miscellaneous Provisions
7.1 Amendment and Modification. Subject to applicable
law, this Agreement may be amended, modified or supplemented
only by a written agreement signed by Buyer and Seller.
7.2 Waiver of Compliance; Consents.
7.2.1 Any failure of any party to comply with any
obligation, covenant, agreement or condition herein may be
waived by the party entitled to the performance of such
obligation, covenant or agreement or who has the benefit of
such condition, but such waiver or failure to insist upon
strict compliance with such obligation, covenant, or
agreement or condition will not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure.
7.2.2 Whenever this Agreement requires or permits
consent by or on behalf of any party hereto, such consent
will be given in a manner consistent with the requirements
for a waiver of compliance as set forth above.
7.3 Notices. All Notices, requests, demands and other
communications required or permitted hereunder will be in
writing and will be deemed to have been duly given when
delivered by (i) hand; (ii) reliable overnight delivery
service; or (iii) facsimile transmission.
If to Buyer, to: 8930 E. Raintree, Suite 300,
Scottsdale, AZ 85260
If to Seller, to: 3168 E Indian School Rd.,
Phoenix AZ, 85016
7.4 Titles and Captions. All section titles or captions
contained in this Agreement are for convenience only and
shall not be deemed part of the context nor effect the
interpretation of this Agreement.
/18/
7.5 Entire Agreement. This Agreement contains the
entire understanding between and among the parties and
supersedes any prior understandings and agreements among
them respecting the subject matter of this Agreement.
7.6 Agreement Binding. This Agreement shall be binding
upon the heirs, executors, administrators, successors and
assigns of the parties hereto.
7.7 Attorneys' Fees. In the event an arbitration, suit
or action is brought by any party under this Agreement to
enforce any of its terms, or in any appeal therefrom, it is
agreed that the prevailing party shall be entitled to
reasonable attorneys fees to be fixed by the arbitrator,
trial court, and/or appellate court.
7.8 Computation of Time. In computing any period of
time pursuant to this Agreement, the day of the act, event
or default from which the designated period of time begins
to run shall be included, unless it is a Saturday, Sunday or
a legal holiday, in which event the period shall begin to
run on the next day that is not a Saturday, Sunday or legal
holiday.
7.9 Pronouns and Plurals. All pronouns and any
variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural as the
identity of the person or persons may require.
7.10 Governing Law. This Agreement and the rights and
obligations of the parties hereto shall be governed,
construed and enforced in accordance with the laws of the
State of Nevada. The parties agree that any litigation
relating directly or indirectly to this Agreement must be
brought before and determined by a court of competent
jurisdiction within the State of Arizona.
7.11 Presumption. This Agreement or any Section thereof
shall not be construed against any party due to the fact
that said Agreement or any section thereof was drafted by
said party.
7.12 Further Action. The parties hereto shall execute
and deliver all documents, provide all information and take
or forbear from all such action as may be necessary or
appropriate to achieve the purposes of the Agreement.
7.13 Parties in Interest. Nothing herein shall be
construed to be to the benefit of any third party, nor is it
intended that any provision shall be for the benefit of any
third party.
7.14 SaviMs Clause. If any provision of this Agreement,
or the application of such provision to any person or
circumstance, shall be held invalid, the remainder of this
Agreement, or the application of such provision to persons
or circumstances other than those as to which it is held
invalid, shall not be affected hereby.
7.15 Confidentiality. The parties shall keep this
Agreement and its terms confidential, but any party may make
such disclosures as it reasonably considers are required by
law or necessary to obtain financing or for other reasonable
business purposes. In the event that the transactions
contemplated by this Agreement are not consummated for any
reason whatsoever,
/19/
the parties hereto agree not to disclose or use any
confidential information they may have concerning the
affairs of other parties, except for information which is
required by law to be disclosed. Confidential information
includes, but is not limited to, financial records, surveys,
reports, plans, proposals, financial information,
information relating to personnel contracts, stock
ownership, liabilities and litigation. Buyer and Seller must
each approve the content of all press releases or public
filings regarding this transaction.
7.16 Costs. Expenses and Legal Fees. Whether or not the
transactions contemplated hereby are consummated, each party
hereto shall bear its own costs and expenses (including
attorneys' fees), except as set forth in the Escrow
Agreement.
7.17 Severability. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under
present or future laws effecting during the term hereof,
such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid
or unenforceable provision never comprised a part hereof;
and the remaining provisions hereof shall remain in full
force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid and
unenforceable provision, there shall be added automatically
as part of this Agreement a provision as similar in nature
in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and
enforceable.
7.18 Counterparts and Facsimile Signatures. This
Agreement may be executed 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. For
purposes of this Agreement, facsimile signatures shall be
treated as originals until such time that applicable pages
bearing non-facsimile signatures are obtained from the
relevant party or parties.
7.19 Continuing Nature. All representations and
warranties contained in this Agreement shall survive the
Closing for a period of one (1) year and, if applicable, all
covenants, which, according to their terms are to be
performed after the execution of this Agreement, shall
survive the Closing for a period of one (1) year.
7.20 Taxes. For Federal income tax purposes, Buyer and
Seller intend that this transaction shall qualify as a
reorganization under the provision of Section 368 of the
Internal Revenue Code of 1986, as amended.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first set forth above.
Future Carz, Inc. American Automotive Group, Inc.
A Nevada Corporation An Arizona Corporation (Seller)
by: /s/ Edward Heisler by: /s/ Mathew Warren
------------------------- -------------------------
Edward Heisler, President Mathew Warren, President
/20/