<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a)
AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
CONCAP, INC
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(Name of Issuer)
COMMON STOCK $.001 PAR VALUE PER SHARE
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(Title of Class of Securities)
20600E200000
(CUSIP Number)
3700 CRESTWOOD PARKWAY
SUITE 1000
DULUTH, GA 30096
(770 381-8089)
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
JULY 8, 1998
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement of Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box.
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See
Rule 13d-7(b) for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 7 Pages)
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CUSIP NO. 13D PAGE OF PAGES
--------------------- -------- --------
(1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Scott Schuster
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ X ]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS*
00
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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(7) SOLE VOTING POWER
NUMBER OF 3,153,750
SHARES --------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH --------------------------------------------------------
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON WITH 3,153,750
--------------------------------------------------------
(10) SHARED DISPOSITIVE POWER
--------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,153,750
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(12) CHECK BOX IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32%
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(14) TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP NO. 13D PAGE OF PAGES
--------------------- -------- --------
(1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
David E. Aksoy
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ x ]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS*
00
---------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
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(7) SOLE VOTING POWER
NUMBER OF 3,153,750
SHARES --------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH --------------------------------------------------------
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON WITH 3,153,750
--------------------------------------------------------
(10) SHARED DISPOSITIVE POWER
--------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,153,750
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(12) CHECK BOX IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
---------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32%
---------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON*
IN
---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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ITEM 1. SECURITY AND ISSUER.
This Statement relates to the Common Stock, $.001 par value
per share ("Common Stock"), of Concap, Inc., a Texas corporation (the "Issuer").
The 7,200,000 shares of the Issuer's Common Stock which are the subject of the
Statement will be referred to as the "Shares" throughout this statement. The
principal executive office of the Issuer is located at 568 East Woolbright Road,
#466, Boynton Beach, FL 33435
ITEM 2. IDENTITY AND BACKGROUND.
This statement is filed on behalf of Scott Schuster and David
E. Aksoy (collectively "the Shareholders"), individual residents of the state of
Georgia who were the sole shareholders of Intuitive Technology Consultants Inc.
("ITC"), a Georgia corporation, prior to the transactions consummated by the
Exchange Agreement (described in item 3 hereof).
Scott Schuster, a U.S. citizen is currently president of ITC.
Mr. Schuster's business address is Intuitive Technology Consultants, Inc., 3700
Crestwood Parkway, Duluth, Georgia 30096.
David E. Aksoy, a Canadian citizen is currently a director of
ITC. Mr. Aksoy's business address is 3931 Mundy Mill Road, Oakwood, Georgia
30566.
During the last five years, neither person named in this Item
2 has been: (a) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors); or (b) party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of which
it was or is subject to a judgement, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, Federal or
State securities laws or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS AND OTHER CONSIDERATION.
Pursuant to an agreement dated June 24, 1998 (the "Exchange
Agreement") by and among the Issuer, ITC and the Shareholders, the Issuer
acquired from the Shareholders all of the issued and outstanding shares of
Common Stock of ITC in exchange for unissued shares of the Issuer representing
72% or 7,200.000 of Common Stock of the Issuer that was outstanding after the
exchange of such shares (the "Exchange"). The Exchange was consummated on July
8, 1998 (the "Effective Time").
ITEM 4. PURPOSE OF THE TRANSACTION.
The purpose of the acquisition of the Issuer's shares was for
the Issuer to acquire all of the capital stock of ITC and for the Shareholders
to obtain 7,200,000 shares of the Issuer's common stock, in accordance with the
Exchange Agreement. The Exchange became effective at the closing of the
transactions contemplated by the Exchange Agreement on July 8, 1998.
Prior to consummation of the Exchange, ITC engaged in
providing technical solutions to companies seeking talent in the software
development, network implementation and management and related technical areas.
[PURPOSE OF THE EXCHANGE]. The Issuer was formed for the purpose of creating a
vehicle to obtain capital to take advantage of domestic and foreign business
opportunities which may have potential for profit.
(a) Neither Shareholder presently has any plans or proposals
which relate to the acquisition by any person of additional securities of the
Issuer, or the disposition of securities of the Issuer;
(b) Pursuant to the Exchange, the Shareholders obtained
control of the Issuer by virtue of the 7,200,000 shares of Issuer's common stock
being issued to them in exchange for all of the issued and outstanding shares of
ITC formerly owned by them;
(c) Neither Shareholder presently has any plans or proposals
which relate to or would result in a sale or transfer of a material amount of
assets of the Issuer or of any of its subsidiaries; (d)
<PAGE> 5
(d) Pursuant to the Exchange, Scott Schuster was appointed by
the Board of Directors as a new director. After electing the new director, the
Issuer's prior sole director, Carl Canter, resigned;
(e) Neither Shareholder presently has any plans or proposals
which relate to or would result in any material change in the present
capitalization or dividend policy of the Issuer;
(f) Neither shareholder presently has any plans or proposals
which relate to or would result in any material change in the Issuer's business
or corporate structure;
(g) Neither Shareholder presently has any plans or proposals
which relate to or would result in changes in the Issuer's charter, bylaws or
instruments corresponding thereto or other actions which may impede the
acquisition of control of the Issuer by any person;
(h) Neither Shareholder presently has any plans or proposals
which relate to or would result in a class of securities of the Issuer being
delisted from a national securities exchange or ceasing to be authorized to be
quoted in an inter-dealer quotation system of a registered national securities
association;
(i) Neither Shareholder presently has any plans or proposals
which relate to or would result in a class of equity securities of the Issuer
becoming eligible for termination of registration pursuant to Section 12(g)(4)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); or
(j) Neither Shareholder presently has any plans or proposals
which relate to or would result in any action similar to any of those enumerated
above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) As of the date of this statement, the Shareholders
beneficially own an aggregate of 7,200,000 shares of the Issuer's Common Stock.
The 7,200,000 shares of Common Stock beneficially owned by the Shareholders on
the date of this statement represent a beneficial ownership of approximately 72%
of the Issuer's outstanding shares of Common Stock, based upon the Issuer's
statement in its Form 8-K filed July 21, 1998.
(b) Scott Schuster has the sole power to vote or to direct the
vote of 3,153,750 shares of the Issuer's Common Stock and David Aksoy has the
sole power to vote or direct the vote of 3,153,750 shares of the Issuer's Common
Stock.
(c) Except as set forth herein, neither Shareholder has
effected any transaction in the Issuer's Common Stock during the past 60 days.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
The Shareholders, ITC and the Issuer entered into an
Agreement, dated June 24, 1998, which is filed as an exhibit hereto and is
incorporated by reference into this Item 6, pursuant to which the Shareholders
acquired 7,200,000 shares if Issuer's Common Stock in exchange for 100% of ITC's
issued and outstanding shares of Common Stock.
Except as described in this Schedule 13D, or in the exhibits
hereto, neither Shareholder is a party to any other contract, arrangement,
understanding or relationship with respect to any securities of the Issuer.
<PAGE> 6
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
THE FOLLOWING SHALL BE FILED AS AN EXHIBIT HERETO:
Exhibit 7.1: Agreement, dated June 24, 1998, among
the Shareholders, the Issuer and ITC.
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SIGNATURE
After reasonable inquiry an to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
October 30, 1998 /s/ Scott Schuster
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SCOTT SCHUSTER
October 30, 1998 /s/ David E. Aksoy
- --------------- --------------------------------------
DAVID E. AKSOY
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EXHIBIT 7.1
AGREEMENT
AGREEMENT, made this 24th day of June, 1998, by and among CONCAP, INC.,
a Texas corporation ("Buyer"), INTUITIVE TECHNOLOGY CONSULTANTS, INC., a Georgia
corporation (the Company) and persons executing this agreement (referred to
collectively as "Shareholders" and individually as "Shareholder") who own 100%
of the outstanding shares of the Company.
WHEREAS, Buyer desires to acquire all of the issued and outstanding
shares of common stock of the Company in exchange for unissued shares of the
common stock of Buyer representing 72% of total outstanding shares of common
stock of Buyer to be outstanding after the transaction herein (the "Common
Stock") (the Exchange Offer"); and
WHEREAS, Shareholders desire to exchange all of their shares of Company
common stock; and
WHEREAS, Buyer desires to assist the Company in a business combination
which will result in the Shareholders of the Company owning together 7,200,000
of the 10,000,000 then issued and outstanding shares of Buyer's Common Stock and
Buyer holding 100% of the issued and outstanding shares of the Company's common
stock;
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
representations contained herein, the parties hereto agree as follows:
ARTICLE 1
EXCHANGE OF SECURITIES
1.1 Issuance of Shares. Subject to all of the terms and conditions of
this Agreement, Buyer agrees to exchange 7,200,000 shares of its Common Stock in
exchange for all of the outstanding Company common stock with the holders of
such stock as set forth on the signature page hereto. The Common Stock will be
issued directly to the Shareholders of the Company on the Closing.
1.2 Exemption from Registration. The parties hereto intend that the
Common Stock to be issued by the Company to the Shareholders shall be exempt
from the registration requirements of the Securities Act of 1933, as amended
(the "Act"), and pursuant to applicable state statutes.
1.3 Tax Free Exchange. The parties hereto intend that the exchange
herein be tax-free pursuant to Section 368 of the Internal Revenue Code of 1986.
No revenue ruling or opinion of counsel is being sought in this regard and such
tax treatment is not a condition to closing herein.
1.4 Shareholders' Representative. The Shareholders hereby irrevocably
designate and appoint Scott Shuster as their agent and attorney in fact
("Shareholders' Representative ") with full power and authority until the
Closing to execute, deliver and receive on
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their behalf all notices, requests, certificates and other communications
hereunder; to, fix and alter on their behalf the date, time and place of the
Closing; to waive, amend or modify any provisions of this Agreement and to take
such other action on their behalf in connection with this Agreement, the Closing
and the transactions contemplated hereby as such agent or agents deem
appropriate; provided, however, that no such waiver, amendment or modification
may be made if it would decrease the number of shares to be issued to the
Shareholders under Section 1.1 hereof or increase the extent of their obligation
to indemnify Buyer under Section 2.16 hereof.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF COMPANY AND SHAREHOLDERS
The Shareholders and the Company hereby represent and warrant to Buyer
that:
2.1 Organization. The Company is a corporation duly organized, validly
existing, and in good standing under the laws of Georgia, has all necessary
corporate powers to own its properties and to carry on its business as now owned
and operated by it, and is duly qualified to do business and is in good standing
in each of the states where its business requires qualification.
2.2 Capital. The authorized capital stock of Company consists of
1,000,000 shares of Common Stock, $.01 par value, of which 1,000,000 shares are
currently issued and outstanding. At the Closing the shares will be owned by the
shareholders of Company as set forth in Exhibit 1.1 hereto. All of the issued
and outstanding shares of Company are duly and validly issued, fully paid, and
nonassessable. There are no outstanding subscriptions, options, rights,
warrants, debentures, instruments, convertible securities, or other agreements
or commitments obligating Company to issue or to transfer from treasury any
additional shares of its capital stock of any class.
2.3 Subsidiaries. As of the date of this Agreement, Company does not
have any subsidiaries or own any interest in any other enterprise (whether or
not such enterprise is a corporation).
2.4 Directors and Officers. Exhibit 2.4 to this Agreement, the text of
which is hereby incorporated herein by reference, contains the names and titles
of all directors and officers of Company and the Subsidiaries as of the date of
this Agreement.
2.5 Financial Statements. Exhibit 2.5 to this Agreement, the text of
which is hereby incorporated herein by reference, includes the financial
statements of Company as of December 31, 1997 and for the year then ended. Such
financial statements fairly present the financial position of Company as of the
date of the last balance sheet included in the financial statements, and the
results of operation for the periods indicated and are true and correct.
2.6 Absence of Changes. Since the date of the most recent financial
statements included in Exhibit 2.5, there has not been any change in the
financial condition or operations of Company, except for changes in the ordinary
course of business, which changes have not in the aggregate been materially
adverse.
<PAGE> 3
2.7 Absence of Undisclosed Liabilities. As of the date of its most
recent balance sheet included in Exhibit 2.5, Company did not have any material
debt, liability, or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in such balance sheet.
2.8 Tax Returns. The provisions for taxes, if any, reflected in the
balance sheet included in Exhibit 2.5 are adequate for any and all federal,
state, county and local taxes for the periods ending on the date of the balance
sheet and for all prior periods, whether or not disputed. There are no present
disputes as to taxes of any nature payable by Company.
2.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, Buyer
and/or its attorneys shall have the opportunity to meet with accountants and
attorneys to discuss the financial condition of Company. Company shall make
available to Buyer and/or its attorneys all books and records of Company. If the
transaction contemplated hereby is not completed, all documents received by
Buyer and/or its attorneys shall be returned to Company and all information so
received shall be treated as confidential.
2.10 Compliance with Laws. Company has complied with, and is not in
violation of, all applicable federal, state or local statutes, laws and
regulations (including, without limitation, any applicable building, zoning,
environmental or other law, ordinance or regulation and the Federal Food and
Drug Administration regulations) affecting its properties, products or the
operation of its business, except for matters which would not have a material
affect on Company or its properties.
2.11 Litigation. Company is not a party to any suit, action,
arbitration or legal, administrative or other proceeding, or governmental
investigation pending or, to the best knowledge of Company, threatened against
or affecting Company or its business, assets or financial condition, except for
matters which would not have a material affect on Company or its properties.
Company is not in default with respect to any order, writ, injunction or decree
of any federal, state, local or foreign court, department, agency or
instrumentality applicable to it. Company is not engaged in any lawsuits to
recover any material amount of monies due to it.
2.12 Ownership of Shares. The delivery of the Company common stock as
contemplated herein will result in Buyer's immediate acquisition of record and
beneficial ownership of all of the Company's capital stock, free and clear of
all liens and encumbrances.
2.13 Ability to Carry Out Obligations. The execution and delivery of
this Agreement by the Company and the Shareholders and the performance by the
Shareholders of the obligations hereunder in the time and manner contemplated
will not cause, constitute or conflict with or result in (a) any material breach
or violation of any of the provisions of or constitute a material default under
any license, indenture, mortgage, charter, instrument, articles of
incorporation, by-laws, or other agreement or instrument to which Company or the
Shareholders is a party, or by which it may be bound, nor will any consents or
authorizations of any party other
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than those hereto be required, (b) an event that would permit any party to any
material agreement or instrument to terminate it or to accelerate the maturity
of any indebtedness or other obligation of Company, or (c) an event that would
result in the creation or imposition of any material lien, charge, or
encumbrance on any asset of Company.
2.14 Business and Intellectual Property Rights. The Company owns all
rights to its business, including all programs, patents, trademarks, trade
names, intellectual property, copyrights utilized in connection therewith and
pays no royalty, license fee or similar consideration to anyone for use of them
and has the right to bring actions for infringement thereof. To the best
knowledge of Company and the Shareholders no product or service marketed or to
be marketed by the Company violates or infringes any patent, trademark, service
mark, know-how, intellectual property, trade name or copyright of another.
2.15 Full Disclosure. None of the representations and warranties made
by Company herein, or in any exhibit, certificate or memorandum furnished or to
be furnished by Company, or on its behalf, contains or will contain any untrue
statement of material fact, or omit any material fact the omission of which
would be misleading.
2.16 Indemnification. Shareholders agree to defend and hold Buyer
harmless against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties, and reasonable attorney fees, that it shall incur
or suffer, which arise out of, result from or relate to any breach of, or
failure by Shareholders to perform any of its respective representations,
warranties, covenants and agreements in this Agreement or in any exhibit or
other instrument furnished or to be furnished by Shareholders under this
Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Company that:
3.1 Organization. Buyer is a corporation duly organized, validly
existing, and in good standing under the laws of Texas, has all necessary
corporate powers to own properties and to carry on business.
3.2 Capital. The authorized capital stock of Buyer consists of
500,000,000 shares of $.001 par value Common Stock of which 10,000,000 shares of
Common Stock will be outstanding as of the Closing. All of the issued and
outstanding shares, including the shares to be issued to Shareholders, shall be
duly and validly issued, fully paid and nonassessable. There are no outstanding
subscriptions, options, rights, warrants, convertible securities, or other
agreements or commitments obligating Buyer to issue or to transfer from treasury
any additional shares of its capital stock of any class.
<PAGE> 5
3.3 Subsidiaries. Buyer does not have any subsidiaries or own any
interest in any other enterprise (whether or not such enterprise is a
corporation).
3.4 Directors and Officers. Exhibit 3.4, annexed hereto and hereby
incorporated herein by reference, contains the names and titles of all directors
and officers of Buyer as of the date of this Agreement.
3.5 Financial Statements. Exhibit 3.5, annexed hereto and hereby
incorporated herein by reference, consists of the audited financial statements
of Buyer as of March 31, 1998, containing the balance sheets of Buyer and the
related statements of income and retained earnings for the nine months then
ended. The financial statements have been prepared in accordance with generally
accepted accounting principles and practices consistently followed by Buyer
throughout the period indicated, and fairly present the financial position of
Buyer as of the dates of the balance sheets included in the financial
statements, and the results of operations for the period indicated and are true
and correct.
3.6 Absence of Changes. Since March 31, 1998, there has not been any
change in the financial condition or operations of Buyer, except for changes in
the ordinary course of business in connection with the transactions contemplated
herein.
3.7 Absence of Undisclosed Liabilities. As of March 31, 1998, Buyer did
not have any material debt, liability, or obligation of any nature, whether
accrued, absolute, contingent, or otherwise, and whether due or to become due,
that is not reflected in Buyer's balance sheet as of March 31, 1998. As of the
Closing, Buyer will not have total liabilities in excess of $10,000.
3.8 Tax Returns. Within the times and the manner prescribed by law,
Buyer has filed all federal, state and local tax returns required by law and has
paid all taxes, assessments and penalties due and payable. There are no present
disputes as to taxes of any nature payable by Buyer.
3.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, Company
shall have the opportunity to meet with Buyer's accountants and attorneys to
discuss the financial condition of Buyer. Buyer shall make available to Company
all books and records of Buyer.
3.10 Compliance with Laws. Buyer has complied with, and is not in
violation of, all applicable federal, state or local statutes, laws and
regulations (including, without limitation, any applicable building, zoning,
environmental or other law, ordinance, or regulation) affecting its properties
or the operation of its business.
3.11 Litigation. Buyer is not a party to any suit, action, arbitration,
or legal, administrative, or other proceeding, or governmental investigation
pending or, to the best knowledge of Buyer, threatened against or affecting
Buyer or its business, assets, or financial condition. Buyer is not in default
with respect to any order, writ, injunction, or decree of any federal, state,
local, or foreign court, department agency, or instrumentality.
<PAGE> 6
3.12 Authority. The Board of Directors of Buyer has authorized the
execution of this Agreement and the transactions contemplated herein, and Buyer
has full power and authority to execute, deliver and perform this Agreement and
this Agreement is the legal, valid and binding obligation of Buyer, is
enforceable in accordance with its terms and conditions, except as may be
limited by bankruptcy and insolvency laws and by other laws affecting the rights
of creditors generally. The approval of Buyer's shareholders is not necessary
for this transaction.
3.13 Ability to Carry Out Obligations. The execution and delivery of
this Agreement by Buyer and the performance by Buyer or conflict with or result
in (a) any material breach or violation of any of the provisions of or
constitute a default under any license, indenture, mortgage, charter,
instrument, certificate of incorporation, bylaw, or other agreement or
instrument to which Buyer is a party, or by which it may be bound, nor will any
consents or authorizations of any party other than those hereto be required, (b)
an event that would permit any party to any material agreement or instrument to
terminate it or to accelerate the maturity of any indebtedness or other
obligation of Buyer, or (c) an event that would result in the creation or
imposition of any material lien, charge, or encumbrance on any asset of Buyer.
3.14 Validity of Buyer Shares. The shares of Buyer Common Stock to be
delivered pursuant to this Agreement, when issued in accordance with the
provisions of this Agreement, will be duly authorized, validly issued, fully
paid and nonassessable.
3.15 Full Disclosure. None of the representations and warranties made
by Buyer herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by Buyer, or on its behalf, contains or will contain any untrue
statement of material fact, or omit any material fact the omission of which
would be misleading.
3.16 Indemnification. Buyer agrees to indemnify, defend and hold
Shareholders harmless against and in respect of any and all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties, and reasonable attorney fees, that
they shall incur or suffer, which arise out of, result from or relate to any
breach of, or failure by Buyer to perform any of its representations,
warranties, covenants or agreements in this Agreement or in any schedule,
certificate, exhibit or other instrument furnished or to be furnished by Buyer
under this Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
4.1 Share Ownership. At the Closing the Shareholders will hold shares
of Company's common stock as set forth in Exhibit 1.1 hereto. Such shares are
owned of record and beneficially by each holder thereof, and such shares are not
subject to any lien, encumbrance or pledge. Each Shareholder holds authority to
exchange such shares pursuant to this Agreement.
<PAGE> 7
4.2 Investment Intent. Each Shareholder understands and acknowledges
that the shares of Buyer Common Stock (the "Buyer Shares") are being offered for
exchange in reliance upon the exemption provided in Section 4(2) of the
Securities Act of 1933 (the "Securities Act") for nonpublic offerings; and each
Shareholder makes the following representations and warranties with the intent
that the same may be relied upon in determining the suitability of each
Shareholder as a purchaser of securities.
(a) The Buyer Shares are being acquired solely for the account of
each Shareholder, for investment purposes only, and not with a view to, or for
sale in connection with, any distribution thereof and with no present intention
of distributing or reselling any part of the Buyer Shares.
(b) Each Shareholder agrees not to dispose of his Buyer Shares or
any portion thereof unless and until counsel for Buyer shall have determined
that the intended disposition is permissible and does not violate the Securities
Act or any applicable state securities laws, or the rules and regulations
thereunder.
(c) Each Shareholder acknowledges that Buyer has made all
documentation pertaining to all aspects of the Exchange Offer available to him
and to his qualified representatives, if any, and has offered such person or
persons an opportunity to discuss the Exchange Offer with the officers of Buyer.
(d) Each Shareholder is knowledgeable and experienced in making and
evaluating investments of this nature and desires to accept the Exchange Offer
on the terms and conditions set forth.
(e) Each Shareholder is able to bear the economic risk of an
investment, as a result of the Exchange Offer, in the Buyer Shares.
(f) Each Shareholder understands that an investment in the Buyer
shares is not liquid, and each Shareholder has adequate means of providing for
current needs and personal contingencies and has no need for liquidity in this
investment.
4.3 Indemnification. Each Shareholder recognizes that the offer of the
Buyer shares to him is based upon his representations and warranties set forth
and contained herein and hereby agrees to indemnify and hold harmless Buyer
against all liability, costs or expenses (including reasonable attorney's fees)
arising as a result of any misrepresentations made herein by such Shareholder.
4.4 Legend. Each Shareholder agrees that the certificates evidencing
the Buyer Shares acquired pursuant to this Agreement will have a legend placed
thereon as follows:
The shares represented by this certificate have not been registered
with the Securities and Exchange Commission or any state securities agency. They
may not be sold or transferred in the absence of a registration thereof or any
exemption from registration.
<PAGE> 8
ARTICLE 5
COVENANTS
5.1 Investigative Rights. From the date of this Agreement until the
Closing Date, each party shall provide to the other party, and such other
party's counsels, accountants, auditors, and other authorized representatives,
full access during normal business hours and upon reasonable advance written
notice to all of each party's properties, books, contracts, commitments, and
records for the purpose of examining the same. Each party shall furnish the
other party with all information concerning each party's affairs as the other
party may reasonably request.
5.2 Conduct of Business. Prior to the Closing, Buyer and Company shall
each conduct its business in the normal course, and shall not sell, pledge, or
assign any assets, without the prior written approval of the other party, except
in the regular course of business. Neither Buyer or Company shall amend its
Articles of Incorporation or Bylaws, declare dividends, redeem or sell stock or
other securities, incur additional or newly-funded liabilities, acquire or
dispose of fixed assets, change employment terms, enter into any material or
long-term contract, guarantee obligations of any third party, settle or
discharge any balance sheet receivable for less than its stated amount, pay more
on any liability than its stated amount, or enter into any other transaction
other than in the regular course of business and transactions in connection with
the transactions herein.
5.3 Issue of Additional Buyer Shares. For the twelve (12) months
following the Closing, the Buyer will not issue any shares of its capital stock
other than pursuant to bona fide securities offerings to non-affiliated
investors or bona fide acquisitions of other corporations from independent
parties, or engage in any stock split, reverse stock split, stock dividend or
other similar issuance or change in its shares without the consent of the
holders of 90% of its outstanding shares of Common Stock.
5.4 Compliance with Securities Laws. Company shall continue to timely
file all reports as a reporting person under the Securities Exchange Act of
1934, including a Form 8-K reporting the closing of the transactions herein.
ARTICLE 6
CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE
6.1 Conditions. Buyer's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Article 6. Buyer may waive any or all of these conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by Buyer of any other condition of or any of Buyer's
other rights or remedies, at law or in equity, if Shareholders shall be in
default of any of their representations, warranties, or covenants under this
Agreement.
6.2 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by Shareholders in this Agreement
or in any written statement that shall be delivered to Buyer by Shareholders
under this Agreement shall be true and accurate on and as of the Closing Date as
though made at that time.
<PAGE> 9
6.3 Performance. Shareholders shall have performed, satisfied, and
complied with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by it, on or before the Closing Date.
6.4 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against Company on or before the Closing Date.
6.5 Acceptance by Company Shareholders. The holders of an aggregate of
not less than 100% of the issued and outstanding shares of common stock of
Company shall have agreed to exchange their shares for shares of Buyer Common
Stock.
6.6 Certificate. Shareholders shall have delivered to Buyer a
certificate, dated the Closing Date, certifying that each of the conditions
specified in Sections 6.2 through 6.5 hereof have been fulfilled.
ARTICLE 7
CONDITIONS PRECEDENT TO SHAREHOLDERS' PERFORMANCE
7.1 Conditions. Shareholders' obligations hereunder shall be subject to
the satisfaction, at or before the Closing, of all the conditions set forth in
this Article 7. Shareholders may waive any or all of these conditions in whole
or in part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by Shareholders of any other condition of or
any of Shareholders' rights or remedies, at law or in equity, if Buyer shall be
in default of any of its representations, warranties, or covenants under this
Agreement.
7.2 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by Buyer in this Agreement or in
any written statement that shall be delivered to Shareholders by Buyer under
this Agreement shall be true and accurate on and as of the Closing Date as
though made at that time.
7.3 Performance. Buyer shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the Closing Date.
7.4 Absence of Litigation. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against Buyer on or before the Closing Date.
7.5 Officers' Certificate. Buyer shall have delivered to Shareholders a
certificate, dated the Closing Date and signed by the President of Buyer
certifying that each of the conditions specified in Sections 7.2 through 7.4
have been fulfilled.
<PAGE> 10
ARTICLE 8
CLOSING
8.1 Closing. The Closing of this transaction shall be held at the
offices of Buyer, or such other place as shall be mutually agreed upon, on such
date as shall be mutually agreed upon by the parties but no later than June 30,
1998. At the Closing:
(a) Each Shareholder shall present the certificates representing
his shares of Company being exchanged to Buyer, and such certificates will be
duly endorsed. (b) Each Shareholder shall receive a certificate or certificates
representing the number of shares of Buyer Common Stock for which the shares of
Company common stock shall have been exchanged.
(c) Buyer shall deliver an officer's certificate, as described in
Section 7.5 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth in this Agreement on behalf of
Buyer are true and correct as of, or have been fully performed and complied with
by, the Closing Date.
(d) Buyer shall deliver a signed consent and/or Minutes of the
Directors of Buyer approving this Agreement and each matter to be approved by
the Directors of Buyer under this Agreement.
(e) Shareholder shall deliver a certificate, as described in
Section 6.6 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth in this Agreement on behalf of
Shareholders are true and correct as of, or have been fully performed and
complied with by, the Closing Date.
ARTICLE 9
MISCELLANEOUS
9.1 Captions. The Article and paragraph headings throughout this
Agreement are for convenience and reference only, and shall in no way be deemed
to define, limit, or add to the meaning of any provision of this Agreement.
9.2 No Oral Change. This Agreement and any provision hereof, may not be
waived, changed, modified, or discharged orally, but it can be changed by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, or discharge is sought.
9.3 Non-Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future of
any such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by
<PAGE> 11
this Agreement to be performed with knowledge of the breach or failure of a
covenant, condition, or provision hereof shall not be deemed a waiver of such
breach or failure, and (iii) no waiver by any party of one breach by another
party shall be construed as a waiver with respect to any other or subsequent
breach.
9.4 Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
9.5 Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, supersedes all prior agreements and
understandings, and constitutes a complete and exclusive statement of the
agreements, responsibilities, representations and warranties of the parties.
9.6 Choice of Law. This Agreement and its application shall be governed
by the laws of the State of Florida.
9.7 Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.8 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
Buyer: Concap, Inc.
568 East Woolbright Road, Suite 466
Boynton Beach, FL 33435
Counsel Joel Bernstein, Esq.
to Buyer: P.O.Box 330072
Miami, FL 33233
Company and Intuitive Technology Consultants, Inc.
Shareholders: 3700 Crestwood Parkway
Deluth, GA 30096
Counsel Bryan Harrison, Esq.
to Company: Morris, Manning & Martin
3343 Peachtree Road, Suite 1600
Atlanta, GA 30326
9.9 Binding Effect. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
9.10 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
<PAGE> 12
9.11 Announcements. Buyer and Shareholders will consult and cooperate
with each other as to the timing and content of any announcements of the
transactions contemplated hereby to the general public or to employees,
customers or suppliers.
9.12 Expenses. Each party will pay its own legal, accounting and any
other out-of-pocket expenses reasonably incurred in connection with this
transaction, whether or not the transaction contemplated hereby is consummated.
9.13 Survival of Representations and Warranties. The representations,
warranties, covenants and agreements of the parties set forth in this Agreement
or in any instrument, certificate, opinion, or other writing providing for in
it, shall survive the Closing irrespective of any investigation made by or on
behalf of any party.
9.14 Exhibits. As of the execution hereof, the parties hereto have
provided each other with the Exhibits provided for hereinabove, including any
items referenced therein or required to be attached thereto. Any material
changes to the Exhibits shall be immediately disclosed to the other party.
9.15 Arbitration of Disputes Any dispute or controversy arising out of
or relating to this Agreement, any document or instrument delivered pursuant to,
in connection with, or simultaneously with this Agreement, or any breach of this
Agreement or any such document or instrument shall be settled by arbitration to
be held in Palm Beach County, Florida in accordance with the rules then in
effect of the American Arbitration Association or any successor thereto. The
arbitrator may grant injunctions or other relief in such dispute or controversy.
The decision of the arbitration shall be final, conclusive and binding on the
parties to the arbitration. Judgment may be entered on the arbitrator's decision
in any court having jurisdiction. Each party in such arbitration shall pay their
respective costs and expenses of such arbitration and all the reasonable
attorneys' fees and expenses of their respective counsel.
<PAGE> 13
AGREED TO AND ACCEPTED as of the date first above written.
CONCAP, INC.
By: /s/ Carl Canter
--------------------------------------
President
INTUITIVE TECHNOLOGY CONSULTANTS, INC.
By: /s/ Scott Schuster
--------------------------------------
President
THE COMPANY SHAREHOLDERS:
BUYER SHARES TO BE RECEIVED
/s/ Scott Schuster
- -------------------------------
Scott Schuster
/s/ David Aksoy
- -------------------------------
David Aksoy
