XXX. 00.0 XXXXX XXXXXXXX AGREEMENT BETWEEN FUTURE EDUCATIONAL SYSTEMS, INC.
AND YOUR FUTURE HOLDINGS, INC. DATED DECEMBER 22, 2000.
STOCK EXCHANGE AGREEMENT
THIS AGREEMENT is made and entered into this 22nd day of December,
2000, by and between Future Educational Systems, Inc., a Nevada corporation
("FESI") and Your Future Holdings, Inc. ("YFHI"), a Nevada corporation.
The parties agree as follows:
1. The Acquisition.
1.1 Purchase and Sale Subject to the Terms and Conditions of this
Agreement. At the Closing to be held as provided in Section 2
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hereof, FESI shall sell THIRTY MILLION (30,000,000) shares of
common stock of FESI (the "FESI Shares") to the shareholders
of YFHI, and the shareholders of YFHI shall purchase the FESI
Shares from FESI, free and clear of all encumbrances other
than restrictions imposed by Federal and State securities
laws. The FESI Shares shall be delivered to YFHI for further
delivery to the Shareholders of YFHI as set forth in Exhibit
"A" hereto.
1.2 Purchase Price. YFHI will exchange FIFTEEN MILLION
(15,000,000) shares of its common stock, representing 100% of
the issued and outstanding common stock of YFHI (the "YFHI
Shares") for the FESI Shares. The YFHI Shares shall be issued
and delivered to FESI.
2. The Closing.
2.1 Place and Time. The closing of the sale and exchange of the
FESI Shares for the YFHI Shares (the "Closing") shall take
place at 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000, Xxx Xxxxxxx,
XX, no later than the close of business on December 22, 2000
or at such other place, date and time as the parties may agree
in writing.
2.2 Deliveries by YFHI. At the Closing, the shareholders of YFHI
shall deliver the following to FESI:
2.2.1 The YFHI Shares issued to FESI as contemplated by
section 1 hereof.
2.2.2 The documents contemplated by Section 3 hereof.
2.2.3 All other documents, instruments and writings
required by this Agreement to be delivered by YFHI at
the Closing and any other documents and records
relating to YFHI's business reasonably requested by
FESI in connection with this Agreement.
2.3 Deliveries by FESI. At the Closing, FESI shall deliver the
following to YFHI and/or shareholders of YFHI:
2.3.1 The FESI Shares for further delivery to the YFHI
shareholders as contemplated by section 1 hereof.
2.3.2 The documents contemplated by Section 4 hereof.
2.3.3 All other documents, instruments and writings
required by this Agreement to be delivered by FESI at
the Closing.
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3. Conditions to FESI's Obligations. The obligations of FESI to effect the
Closing shall be subject to the satisfaction at or prior to the Closing
of the following conditions, any one or more of which may be waived by
FESI:
3.1 No Injunction. There shall not be in effect any injunction,
order or decree of a court of competent jurisdiction that
prevents the consummation of the transactions contemplated by
this Agreement, that prohibits FESI's acquisition of the YFHI
Shares or the FESI Shares by shareholders of YFHI or that will
require any divestiture as a result of FESI's acquisition of the
YFHI Shares or that will require all or any part of the business
of FESI to be held separate and no litigation or proceedings
seeking the issuance of such an injunction, order or decree or
seeking to impose substantial penalties on FESI or YFHI if this
Agreement is consummated shall be pending.
3.2 Representations, Warranties and Agreements. (a) The
representations and warranties of YFHI set forth in this
Agreement shall be true and complete in all material respects as
of the Closing Date as though made at such time, and (b) YFHI
shall have performed and complied in all material respects with
the agreements contained in this Agreement required to be
performed and complied with by it at or prior to the Closing.
3.3 Regulatory Approvals. All licenses, authorizations, consents,
orders and regulatory approvals of governmental bodies necessary
for the consummation of FESI's acquisition of YFHI Shares shall
have been obtained by YFHI and shall be in full force and
effect.
4. Conditions to YFHI's Obligations. The obligations of YFHI to effect the
Closing shall be subject to the satisfaction at or prior to the Closing
of the following conditions, any one or more of which may be waived by
YFHI:
4.1 No Injunction. There shall not be in effect any injunction,
order or decree of a court of competent jurisdiction that
prevents the
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consummation of the transactions contemplated by this
Agreement, that prohibits YFHI's acquisition of the FESI
Shares or the YFHI Shares by shareholders of FESI or that will
require any divestiture as a result of YFHI's acquisition of
the FESI Shares or that will require all or any part of the
business of YFHI to be held separate and no litigation or
proceedings seeking the issuance of such an injunction, order
or decree or seeking to impose substantial penalties on YFHI
or FESI if this Agreement is consummated shall be pending.
4.2 Representations, Warranties and Agreements. (a) The
representations and warranties of FESI set forth in this
Agreement shall be true and complete in all material respects
as of the Closing Date as though made at such time, and (b)
FESI shall have performed and complied in all material
respects with the agreements contained in this Agreement
required to be performed and complied with by it at or prior
to the Closing.
4.3 Regulatory Approvals. All licenses, authorizations, consents,
orders and regulatory approvals of governmental bodies
necessary for the consummation of YFHI's acquisition of FESI
Shares shall have been obtained by FESI and shall be in full
force and effect.
5. Representations and Warranties of YFHI. YFHI represents and warrants
to FESI that, to the knowledge of YFHI, and except as set forth in the
YFHI Disclosure Letter:
5.1 Organization of YFHI; Authorization. YFHI is a corporation
duly organized, validly existing and in good standing under
the laws of Nevada with full corporate power and authority to
execute and deliver this Agreement and to performs its
obligations hereunder. The execution, delivery and performance
of this Agreement have been duly authorized by all necessary
corporate action of YFHI and this Agreement constitutes a
valid and binding obligation of YFHI, enforceable against it
in accordance with its terms.
5.2 Capitalization. As of the Closing Date, all of the issued and
outstanding shares of common stock of YFHI are validly issued,
fully paid and non-assessable. There are no outstanding
warrants,
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options or other agreements on the part of YFHI obligating
YFHI to issue any additional shares of common or preferred
stock or any of its securities of any kind. Except as
otherwise set forth herein, YFHI will not issue any shares of
capital stock from the date of this Agreement through the
Closing Date.
5.3 No Conflict as to YFHI. Neither the execution and delivery of
this Agreement nor the consummation of the sale of the YFHI
Shares to FESI will (a) violate any provision of the
certificate of incorporation or by-laws of YFHI or (b)
violate, be in conflict with, or constitute a default (or an
event which, with notice or lapse of time or both, would
constitute a default) under any agreement to which YFHI is a
party or (c) violate any statute or law or any judgment,
decree, order, regulation or rule of any court or other
governmental body applicable to YFHI.
5.4 Ownership of YFHI Shares. The delivery of certificates to FESI
provided in Section 2.2 will result in FESI' immediate
acquisition of record and beneficial ownership of the YFHI
Shares, free and clear of all encumbrances subject to
applicable State and Federal securities laws. There are no
outstanding options, rights, conversion rights, agreements or
commitments of any kind relating to the issuance, sale or
transfer of any equity securities or other securities of YFHI.
5.5 No Conflict as to YFHI and Subsidiaries. Neither the execution
and delivery of this Agreement nor the consummation of the
sale of the YFHI shares to FESI will (a) violate any provision
of the certificate of incorporation or by-laws (or other
governing instrument) of YFHI or any of its subsidiaries or
(b) violate, or be in conflict with, or constitute a default
(or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or
excuse performance by any person of any of its obligations
under, or cause the acceleration of the maturity of any debt
or obligation pursuant to, or result in the creation or
imposition of any encumbrance upon any property or assets of
YFHI or any of its subsidiaries under, any material agreement
or commitment to which YFHI or any of its subsidiaries
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is a party or by which any of their respective property or
assets is bound, or to which any of the property or assets of
YFHI or any of its subsidiaries is subject or (c) violate any
statute or law or any judgment, decree, order, regulation or
rule of any court or other governmental body applicable to
YFHI or any of its subsidiaries except, in the case of
violations, conflicts, defaults, terminations, accelerations
or encumbrances described in clause (b) of this Section 5.5,
for such matters which are not likely to have a material
adverse effect on the business or financial condition of YFHI
and its subsidiaries, taken as a whole.
5.6 Consents and Approvals of Governmental Authorities. Except
with respect to applicable State and Federal securities law,
no consent, approval or authorization of, or declaration,
filing or registration with, any governmental body is required
to be made or obtained by YFHI or any of its subsidiaries in
connection with the execution, delivery, and performance of
this Agreement by YFHI or the consummation of the sale of the
YFHI Shares to FESI.
5.7 Financial Statements. YFHI has delivered to FESI consolidated
balance sheets of YFHI as of _____________ and statements of
income and changes in financial position for the period from
inception to the period then ended, together with the report
thereon of YFHI's independent accountant (the "YFHI Financial
Statements"). Such YFHI Financial Statements are internally
prepared and unaudited but fairly present the consolidated
financial condition and results of operations of YFHI and its
subsidiaries as at the respective dates thereof and for the
period therein referred to, all in accordance with generally
accepted United States accounting principles consistently
applied throughout the periods involves, except as set forth
in the notes thereto.
5.8 No Material Adverse Change. Since the date of the YFHI
Financial Statements, there has not been any material adverse
change in the business or financial condition of YFHI and its
subsidiaries taken as a whole.
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'
5.9 Brokers or Finders. YFHI has not employed any broker or finder
or incurred any liability for any brokerage or finder's fees
or commissions or similar payments in connection with the sale
of the YFHI Shares to FESI.
5.10 Transactions with Directors and Officers. Except as set forth
in the YFHI Disclosure Letter, YFHI and its subsidiaries do
not engage in business with any person in which any of YFHI's
officers or directors has any material equity interest. No
director or officer of YFHI owns any property, asset or right
which is material to the business of YFHI and its subsidiaries
taken as a whole.
6. Representations and Warranties of FESI.
FESI represents and warrants to YFHI that except as set forth in the
FESI Disclosure Letter:
6.1 Organization of FESI; Authorization. FESI is a corporation
duly organized, validly existing and in good standing under
the laws of Nevada with full corporate power and authority to
execute and deliver this Agreement and to performs its
obligations hereunder. The execution, delivery and performance
of this Agreement have been duly authorized by all necessary
corporate action of FESI and this Agreement constitutes a
valid and binding obligation of FESI, enforceable against it
in accordance with its terms.
6.2 Capitalization. As of the Closing Date, all of the issued and
outstanding shares of common stock of FESI are validly issued,
fully paid and non-assessable. There are no outstanding
warrants, options or other agreements on the part of FESI
obligating FESI to issue any additional shares of common or
preferred stock or any of its securities of any kind. Except
as otherwise set forth herein, FESI will not issue any shares
of capital stock from the date of this Agreement through the
Closing Date.
6.3 No Conflict as to FESI. Neither the execution and delivery of
this Agreement nor the consummation of the sale of the FESI
Shares to YFHI will (a) violate any provision of the
certificate of
51.
incorporation or by-laws of FESI or (b) violate, be in
conflict with, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a
default) under any agreement to which FESI is a party or (c)
violate any statute or law or any judgment, decree, order,
regulation or rule of any court or other governmental body
applicable to FESI.
6.4 Ownership of FESI Shares. The delivery of certificates to YFHI
provided in Section 2.3 will result in YFHI's immediate
acquisition of record and beneficial ownership of the FESI
Shares, free and clear of all encumbrances subject to
applicable State and Federal securities laws. There are no
outstanding options, rights, conversion rights, agreements or
commitments of any kind relating to the issuance, sale or
transfer of any equity securities or other securities of FESI.
6.5 No Conflict as to FESI and Subsidiaries. Neither the execution
and delivery of this Agreement nor the consummation of the
sale of the FESI shares to YFHI will (a) violate any provision
of the certificate of incorporation or by-laws (or other
governing instrument) of FESI or any of its subsidiaries or
(b) violate, or be in conflict with, or constitute a default
(or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or
excuse performance by any person of any of its obligations
under, or cause the acceleration of the maturity of any debt
or obligation pursuant to, or result in the creation or
imposition of any encumbrance upon any property or assets of
FESI or any of its subsidiaries under, any material agreement
or commitment to which FESI or any of its subsidiaries is a
party or by which any of their respective property or assets
is bound, or to which any of the property or assets of FESI or
any of its subsidiaries is subject or (c) violate any statute
or law or any judgment, decree, order, regulation or rule of
any court or other governmental body applicable to FESI or any
of its subsidiaries except, in the case of violations,
conflicts, defaults, terminations, accelerations or
encumbrances described in clause (b) of this Section 6.5, for
such matters which are not
52.
likely to have a material adverse effect on the business or
financial condition of FESI and its subsidiaries, taken as a
whole.
6.6 Consents and Approvals of Governmental Authorities. Except
with respect to applicable State and Federal securities law,
no consent, approval or authorization of, or declaration,
filing or registration with, any governmental body is required
to be made or obtained by FESI or any of its subsidiaries in
connection with the execution, delivery, and performance of
this Agreement by FESI or the consummation of the sale of the
FESI Shares to YFHI.
6.7 Financial Statements. FESI has delivered to YFHI consolidated
balance sheets of FESI as of _____________ and statements of
income and changes in financial position for the period from
inception to the period then ended, together with the report
thereon of FESI' independent accountant (the "FESI Financial
Statements"). Such FESI Financial Statements are internally
prepared and unaudited but fairly present the consolidated
financial condition and results of operations of FESI and its
subsidiaries as at the respective dates thereof and for the
period therein referred to, all in accordance with generally
accepted United States accounting principles consistently
applied throughout the periods involves, except as set forth
in the notes thereto.
6.8 No Material Adverse Change. Since the date of the FESI
Financial Statements, there has not been any material adverse
change in the business or financial condition of FESI YFHI and
its subsidiaries taken as a whole.
6.9 Brokers or Finders. FESI has not employed any broker or finder
or incurred any liability for any brokerage or finder's fees
or commissions or similar payments in connection with the sale
of the FESI Shares to YFHI.
6.10 Transactions with Directors and Officers. Except as set forth
in the FESI Disclosure Letter, FESI and its subsidiaries do
not engage in business with any person in which any of FESI'
officers or directors has any material equity interest. No
director or officer of FESI owns any property, asset or right
which is
53.
material to the business of FESI and its subsidiaries taken as
a whole.
7. Access and Reporting; Filings with Governmental Authorities; Other
Covenants.
7.1 Access Between the Date of this Agreement and the Closing
Date. Each of YFHI and FESI shall (a) give to the other and
its authorized representatives reasonable access to all
plants, offices, warehouse and other facilities and properties
of YFHI or FESI, as the case may be, and to its books and
records, (b) permit the other to make inspections thereof, and
(c) cause its officers and its advisors to furnish the other
with such financial and operating data and other information
with respect to the business and properties of such party and
its subsidiaries and to discuss with such and its authorized
representatives its affairs and those of its subsidiaries, all
as the other may from time to time reasonably request.
7.2 Regulatory Matters. YFHI and FESI shall (a) file with
applicable regulatory authorities any applications and related
documents required to be filed by them in order to consummate
the contemplated transaction and (b) cooperate with each other
s they may reasonably request in connection with the
foregoing.
8. Conduct of FESI's Business Prior to the Closing.
8.1 Operation in Ordinary Course. Between the date of this
Agreement and the Closing Date, FESI shall conduct its
businesses in all material respects in the ordinary course.
8.2 Business Organization. Between the date of this Agreement and
the Closing Date, FESI shall (a) preserve substantially intact
the business organization of FESI; and (b) preserve in all
material respects the present business relationships and
goodwill of FESI and each of its subsidiaries.
8.3 Corporate Organization. Between the date of this Agreement and
the Closing Date, FESI shall not cause or permit any amendment
of its
54.
certificate of incorporation or by-laws (or other governing
instrument) and shall not:
8.3.1 issue, sell or otherwise dispose of any of its equity
securities, or create, sell or otherwise dispose of
any options, rights, conversion rights or other
agreements or commitments of any kind relating to the
issuance, sale or disposition of any of its equity
securities;
8.3.2 create or suffer to be created any encumbrances
thereon, or create, sell or otherwise dispose of any
options, rights, conversion rights or other
agreements or commitments of any kind relating to the
sale or disposition of any equity securities;
8.3.3 reclassify, split up or otherwise change any of its
equity securities;
8.3.4 be party to any merger, consolidation or other
business combination;
8.3.5 sell, lease, license or otherwise dispose of any of
its properties or assets (including, but not limited
to, rights with respect to patents and registered
trademarks and copyrights or other proprietary
rights), in any amount which is material to the
business or financial condition of FESI and its
subsidiaries, taken as a whole, except in the
ordinary course of business; or
8.3.6 organize any new subsidiary or acquire any equity
securities of any person or any equity or ownership
interest in any business.
8.4 Other Restrictions. Between the date of this Agreement and the
Closing Date, FESI shall not:
8.4.1 borrow any funds or otherwise become subject to,
whether directly or by way of guarantee or otherwise,
any indebtedness for borrowed money;
8.4.2 create any material encumbrance on any of its
material properties or assets;
55.
8.4.3 except in the ordinary course of business, increase
any manner the compensation of any director or
officer or increase in any manner the compensation of
any class of employees;
8.4.4 create or materially modify any material bonus,
deferred compensation, pension, profit sharing,
retirement, insurance, stock purchase, stock option,
or other fringe benefit plan, arrangement or practice
or any other employee benefit plan (as defined in
section 3(3) of ERISA);
8.4.5 make any capital expenditure or acquire any property
or assets;
8.4.6 enter into any agreement that materially restricts
FESI, YFHI or any of their subsidiaries from carrying
on business;
8.4.7 pay, discharge or satisfy any material claim,
liability or obligation, absolute, accrued,
contingent or otherwise, other than the payment,
discharge or satisfaction in the ordinary course of
business of liabilities or obligations reflected in
the FESI Financial Statements or incurred in the
ordinary course of business and consistent with past
practice since the date of the FESI Financial
Statements; or
8.4.8 cancel any material debts or waive any material
claims or rights.
9. Definitions.
As used in this Agreement, the following terms have the meanings
specified or referred to in this Section 9.
9.1 Business Day -- any day that is not a Saturday or Sunday or a
day on which banks located in the City of New York are
authorized or required to be closed.
9.2 Code -- The Internal Revenue Code of 1986, as amended.
9.3 Disclosure Letter -- a letter dated the date of this
Agreement, executed by either YFHI or FESI, addressed and
delivered to the
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other and containing information required by this Agreement
and exceptions to the representations and warranties under
this Agreement.
9.4 Encumbrances -- any security interest, mortgage, lien, charge,
adverse claim or restriction of any kind, including, but not
limited to, any restriction on the use, voting, transfer,
receipt of income or other exercise of any attributes of
ownership, other than a restriction on transfer arising under
Federal or state securities laws.
9.5 Equity Securities -- see Rule 3a-11-1 under the Securities
Exchange Act of 1934.
9.6 ERISA -- the Employee Retirement Income Security Act of 1974,
as amended
9.7 Governmental Body -- any domestic or foreign national, state
or municipal or other local government or multi-national body,
any subdivision, agency, commission or authority thereof.
9.8 Knowledge -- actual knowledge, after reasonable investigation.
9.9 Person -- any individual, corporation, partnership, joint
venture, trust, association, unincorporated organization,
other entity, or governmental body.
9.10 Subsidiary -- with respect to any person, any corporation of
which securities having the power to elect a majority of that
corporation's Board of Directors (other than securities having
that power only upon the happening of a contingency that has
not occurred) are held by such person or one or more of its
subsidiaries.
10. Termination.
10.1 Termination. This Agreement may be terminated before the
Closing occurs only as follows:
10.1.1 By written agreement of YFHI and FESI at any time;
10.1.2 By FESI, by notice to YFHI at any time, if one or
more of the conditions specified in Section 4 hereof
is not satisfied at the time at which the Closing (as
it may be
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deferred pursuant to Section 2.1) would otherwise
occur or if satisfaction of such a condition is or
becomes impossible.
10.1.3 By YFHI, by notice to FESI at any time, if one or
more of the conditions specified in Section 3 hereof
is not satisfied at the time at which the Closing (as
it may be deferred pursuant to Section 2.1), would
otherwise occur or if satisfaction of such a
condition is or becomes impossible.
10.1.4 By YFHI to FESI, by notice to the other at any time
after ________.
10.2 Effect of termination. If this Agreement is terminated
pursuant to Section 10.1, this Agreement shall terminate
without any liability or further obligations of any party to
another.
11. Notices. All notices, consents, assignments and other communications
under this Agreement shall be in writing and shall be deemed to have
been duly given when (a) delivered by hand, (b) sent by telex or
facsimile (with receipt confirmed), provided that a copy is mailed by
registered mail, return receipt requested or (c) received by the
delivery service (receipt requested), in each case to the appropriate
addresses, telex numbers and facsimile numbers set forth below (or to
such other addresses, telex numbers and facsimile numbers as a party
may designate as to itself by notice to the other parties).
11.1 If to FESI:
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
11.2 If to YFHI:
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
12. Miscellaneous.
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12.1 Expenses. Each party shall bear its own expenses incident to
the preparation, negotiation, execution and delivery of this
Agreement and the performance of its obligations hereunder.
12.2 Captions. The captions in this Agreement are for convenience
of reference only and shall not be given any effect in the
interpretation of this agreement.
12.3 No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall
not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any
other term of this Agreement. Any waiver must be in writing.
12.4 Exclusive Agreement; Amendment. This Agreement supersedes all
prior agreements among the parties with respect to its subject
matter with respect thereto and cannot be changed or
terminated orally.
12.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original,
but all of which together shall constitute the same
instrument.
12.6 Governing Law. This Agreement and (unless otherwise provided)
all amendments hereof and waivers and consents hereunder shall
be governed by the law of Nevada.
12.7 Binding Effect. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective
successors and assigns, provided that neither party may assign
its rights hereunder without the consent of the other.
IN WITNESS WHEREOF, the corporate parties have caused this Agreement to
be executed by their respective officers, hereunto duly authorized, and entered
into as of the date first above written.
FUTURE EDUCATIONAL SYSTEMS, INC. YOUR FUTURE HOLDINGS, INC.
By: By:
/s/_________________ /s/____________________
Xxx Xxxx Xxx Xxxx
President President
59.
Exhibit A
YFHI SHAREHOLDERS
Name No. of FESI Shares to be Issued to
YFHI Shareholders
Xxxxxxxx Commercial Ventures Ltd. 15,000,000
Asean Commercial Holdings 15,000,000
60.
