Ex-2.1
ACQUISITION AGREEMENT
This Agreement, entered into this 19th day of December, 2003, by,
between and among Xxxxxxx Industries, Inc., a corporation organized under the
laws of the State of Maryland (hereinafter the "Purchaser"), Global Funding
Group, Inc. ("Global") and Xxx Xxxx and To-Xxx Xxx ("the Perfisans
Shareholders") and Perfisans Networks Corporation, an Ontario corporation
(hereinafter the "Company").
WITNESSETH:
WHEREAS, Purchaser wishes to acquire, and Perfisans Shareholders are
willing to exchange, all of the outstanding stock of the Company in exchange for
common stock of the Purchaser;
NOW, THEREFORE, in consideration of the mutual terms and covenants set
forth herein, Purchaser, Global and the Perfisans Shareholders approve and adopt
this Acquisition Agreement and mutually covenant and agree with each other as
follows:
ARTICLE I
SHARES TO BE TRANSFERRED AND SHARES TO BE ISSUED
1.01. On the closing date all of the shareholders of the Company
shall transfer to Purchaser certificates for the number of shares of the common
and Preferred stock of the Company (the "Perfisan Shares") described in Schedule
"A" , attached hereto and incorporated herein, which in the aggregate shall
represent all of the issued and outstanding shares of capital stock of the
Company. Such certificates shall be duly endorsed in blank by all of the
Company's shareholders or accompanied by duly executed stock powers in blank
with signatures guaranteed. Alternatively, the shareholders may assign their
rights to the Perfisan Shares if the shares have not been physically issued in
the form of stock certificates, or if the certificates have been lost. In the
event that a particular shareholder is not in possession of a stock certificate,
he will complete a lost stock affidavit satisfactory to the Company.
1.02. In exchange for the transfer of all of the capital stock of
the Company pursuant to sub-section 1.a. hereof, Purchaser shall on the closing
date and contemporaneously with such transfer of the capital stock of the
Company to it by the shareholders, or rights thereto, issue and deliver to the
shareholders an aggregate of 32,857,967 shares of common stock of the Purchaser
(the "Xxxxxxx Shares") in the breakdown specified on Schedule "A" hereof, which
number, along with an aggregate of 5,584,993 outstanding but unexercised options
and warrants of the Company and 2,600,000 other shares being issued upon
conversion of debt and a private stock sale shall be equal to 95% of Purchaser,
on a fully diluted basis, at the time of closing. In the event that a
shareholder does not possess a stock certificate representing the Perfisan
Shares or has not executed a lost stock affidavit, the Xxxxxxx Shares in
Schedule A will be issued but held by the Company pending satisfactory evidence
of loss or presentment of the certificate.
1.03. The parties intend that this acquisition and exchange of
shares is to be a "tax free" exchange/transaction pursuant to Section
368(a)(1)(b) of the Internal Revenue Code of the United States.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ALL OF THE COMPANY ON BEHALF OF ALL OF THE
COMPANY'S SHAREHOLDERS
2.01 OWNERSHIP OF STOCK. The shareholders listed on Schedule A are
the record owners and holders of the number of fully paid and non-assessable
shares of the Company listed in Schedule "A" hereto as of the date hereof and
will continue to own such shares of the stock of the Company until the delivery
thereof to the Purchaser on the closing date and all such shares of stock are or
will be on the closing date owned free and clear of all liens, encumbrances,
charges and assessments of every nature and subject to no restrictions with
respect to transferability.
All exchanging shareholders will have full power and authority to assign and
transfer their shares of the Company in accordance with the terms hereof.
2.02 ACCREDITED STATUS. The Perfisans' Shareholders are accredited
investors as that term is used under the Securities Act of 1933, as amended (the
"Act"). As such, the Perfisans' Shareholders are experienced investors who are
fully capable of determining the risks associated with this type of investment
including, but not limited to, complete loss of their investment. Not more than
35 of the total shareholders identified on Schedule A hereto are not "accredited
investors", as such term is defined under the Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDERS
3.01 CAPITALIZATION Except for this Agreement, there are no
outstanding options, contracts, calls, commitments, agreements or demands of any
character relating to the stock of the Company.
3.02 ORGANIZATION AND AUTHORITY.
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the province of Ontario,
with all requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as now being conducted, is duly
qualified and in good standing in every jurisdiction in which the property
owned, leased or operated by it, or the nature of the business conducted by it,
makes such qualification necessary to avoid material liability or material
interference in its business operations, and is not subject to any agreement,
commitment or understanding which restricts or may restrict the conduct of its
business in any jurisdiction or location.
(b) The outstanding shares of the Company are legally and
validly issued, fully paid and non-assessable.
(c) The Company does not own five percent (5%) or more of
the outstanding stock of any corporation, except as listed on the Disclosure
Statement.
(d) The minute book of the Company made available to
Purchaser contains complete and accurate records of all meetings and other
corporate actions of the shareholders and the Board of Directors (and any
committee thereof) of the Company.
(e) The Disclosure Statement contains a list of the
officers, directors and shareholders of the Company and copies of the articles
of incorporation and by-laws currently in effect of the Company.
(f) The execution and delivery of this Agreement does
not, and the consummation of the transaction contemplated hereby will not,
subject to the approval and adoption by all of the shareholders of the Company,
violate any provision of the certificate/articles of incorporation or bylaws of
the Company, or any provisions thereof, or result in the acceleration of any
obligation under, any mortgage, lien, lease, agreement, instrument, court order,
arbitration award, judgment or decree to which the Company is a party, or by
which it is bound, and will not violate any other restriction of any kind or
character to which it is subject.
(g) The authorized capital stock of the Company is an
unlimited number of shares of common stock, $.001 par value, and an unlimited
number of shares of preferred stock, $.001 par value, of which an aggregate of
32,857,967 shares of common stock will be issued and outstanding at the time of
closing. The Company will have 5,584,993 outstanding warrants and/or options to
purchase shares of common or preferred stock at the closing date, which options
and/or warrants upon closing will be exerciseable to purchase 5,584,993 shares
of the Purchaser.
3.03 FINANCIALS.
(a) Audited financial statements (hereafter "financial
statements") of the Company for the years December 31, 2000 through December 31,
2002, as well as un-audited financial statements for the period ending September
30, 2003, will be delivered by the Company to the Purchaser no later than sixty
days from the date hereof. Said financial statements will be true and correct in
all material respects and present an accurate and complete disclosure of the
financial condition of the Company as of its date and for the periods covered.
(b) All accounts receivable, if any, (net of reserves for
doubtful accounts) of the Company shown on the books of account on the statement
date and as incurred in the normal course of business since that date, are
collectible in the normal course of business.
(c) The Company has good and marketable title to all of
its assets, business and properties including, without limitation, all such
properties reflected in the balance sheet as of the statement date except as
disposed of in the normal course of business, free and clear of any mortgage,
lien, pledge, charge, claim or encumbrance, except as shown on said balance
sheet as of the statement date and, in the case of real properties except for
rights-of-way and easements which do not adversely affect the use of such
property. Any encumbrances will be included in the attached Disclosure
Statement.
(d) All currently used property and assets of the
Company, or in which it has an interest, or which it has in possession, are in
good operating condition and repair subject only to ordinary wear and tear.
3.04 CHANGES SINCE THE STATEMENT DATE. Since the financial
statement date, except as disclosed in the Disclosure Statement, there will not
have been any material negative change in the financial position or assets of
the Company.
3.05 LIABILITIES. To the best of the knowledge of management, there
are no material liabilities of the Company, whether accrued, absolute,
contingent or otherwise, which arose or relate to any transaction of the
Company, its agents or servants occurring prior to the statement date, which are
not disclosed by or reflected in said financial statements, except as disclosed
in the Disclosure Statement. There are no such liabilities of the Company which
have arisen or relate to any transaction of the Company, its agents or servants,
occurring since the statement date, other than normal liabilities incurred in
the normal conduct of the business of the Company, and none of which have a
material adverse effect on the business or financial condition of the Company,
except as disclosed in the Disclosure Statement. As of the date hereof, there
are no known circumstances, conditions, happenings, events or arrangements,
contractual or otherwise, which may hereafter give rise to liabilities, except
in the normal course of business of the Company, except as disclosed in the
Disclosure Statement.
3.06 TAXES. All federal, foreign, county and local income, ad
valorem, excise, profits, franchise, occupation, property, sales, use gross
receipts and other taxes (including any interest or penalties relating thereto)
and assessments which are due and payable have been duly reported, fully paid
and discharged as reported by the Company, and there are no unpaid taxes which
are, or could become a lien on the properties and assets of the Company, except
as provided for in the financial statements of their date, or have been incurred
in the normal course of business of the Company since that date. All tax returns
of any kind required to be filed have been filed and the taxes paid or accrued.
3.07 ACCURACY OF ALL STATEMENTS MADE BY COMPANY. No representation
or warranty by the Company and Shareholders in this Agreement, nor any
statement, certificate, schedule or exhibit hereto furnished or to be furnished
by or on behalf of the Shareholders pursuant to this Agreement, nor any document
or certificate delivered to Purchaser pursuant to this Agreement or in
connection with actions contemplated hereby, contains or shall contain any
untrue statement of material fact or omits or shall omit a material fact
necessary to make the statement contained therein not misleading.
3.08 LIMITATION OF SUBSEQUENT CORPORATE ACTIONS. It is expressly
understood and agreed that the Company, and its affiliates and shareholders,
will take all steps necessary to insure that with respect to the operations of
the Purchaser for a period of thirteen months following the Acquisition) ) (i)
there shall be no reverse split, which is effected in a manner, which results in
a percentage dilution to the shareholders of Xxxxxxx, and 2) the assets existing
in the new subsidiary, or to be transferred in the new subsidiary, shall remain
in place as part of the business operations.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND GLOBAL
Purchaser and Global represent and warrant as follows:
4.01 Organization and Authority. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Maryland, with full power and authority to enter into and perform the
transactions contemplated by this Agreement, and with all requisite corporate
power and authority to own, operate and lease its properties and to carry on its
business as now being conducted, is duly qualified and in good standing in every
jurisdiction in which the property owned, leased or operated by it, or the
nature of the business conducted by it, makes such qualification necessary to
avoid material liability or material interference in its business operations,
and is not subject to any agreement, commitment or understanding which restricts
or may restrict the conduct of its business in any jurisdiction or location. The
Purchaser is presently qualified to do business in the State of Nevada.
(a) The outstanding shares of the Purchaser are legally
and validly issued, fully paid and non-assessable.
(b) The Purchaser does not own five percent (5%) or more
of the outstanding stock of any corporation, except as listed on the Disclosure
Statement.
(c) The minute book of the Purchaser made available to
the Company and Shareholders contains complete and accurate records of all
meetings and other corporate actions of the shareholders and the Board of
Directors (and any committee thereof) of the Purchaser.
(d) The Disclosure Statement contains a list of the
officers, directors and shareholders of the Purchaser and copies of the articles
of incorporation and by-laws currently in effect of the Purchaser.
(e) The execution and delivery of this Agreement does
not, and the consummation of the transaction contemplated hereby will not
violate any provision of the certificate/articles of incorporation or bylaws of
the Purchaser, or any provisions thereof, or result in the acceleration of any
obligation under, any mortgage, lien, lease, agreement, instrument, court order,
arbitration award, judgment or decree to which the Purchaser is a party, or by
which it is bound, and will not violate any other restriction of any kind or
character to which it is subject.
(f) The authorized capital stock of the Purchaser is
Fifty Million (50,000,000) shares of common stock, $.001 par value, and Five
Million (5,000,000) shares of preferred stock, of which 43,203,115, common
shares of such stock will be issued and outstanding at the time of closing, out
of which 38,442,960 shares will be cancelled simultaneously. There are no
preferred shares outstanding at the time of the acquisition. There are no
outstanding options, warrants or other securities that may convert into or be
exerciseable for shares of common stock of Purchaser. Any existing options and
warrants have been cancelled or have expired without being exercised.
(g) Purchaser represents and warrants that at the time of
closing it will have no assets or liabilities other than that which are
reflected in its 10-Q for the quarter ended September 30, 2003. All of such
liabilities shall have been converted to common stock resulting in no
outstanding liabilities at the time of closing.
(h) Purchaser represents that at the time of closing it
will have taken all necessary steps to comply with all applicable state and
federal securities laws and regulations and that, to the knowledge of the
Purchaser, at the time of closing, there is no litigation, arbitration,
governmental or other proceeding (formal or informal), claim or investigation
pending or threatened, with respect to the Purchasers compliance with any and
all applicable securities laws and regulations. Purchaser represents that all of
the Purchaser's existing securities were issued in accordance with all
applicable federal and state securities' laws.
The validity and performance of this Agreement is not subject to any
permit, approval or consent of any entity, contractual or regulatory, except for
the approval of the Purchaser's Board of Directors and any required shareholder
approval as required by Maryland law.
4.02 PERFORMANCE OF THIS AGREEMENT. The execution and performance
of this Agreement and the issuance of stock contemplated hereby has been
authorized by the board of directors of Purchaser.
4.03 FINANCIALS.
(a) True copies of the audited financial statements of
the Purchaser as of December 31, 2001 and 2002 are available to the Company on
the SEC XXXXX filing system. These statements have been examined and certified
by certified public accountants. Un-audited Interim financial statements through
September 30, 2003 have also been filed with the SEC. Said financial statements
are true and correct in all material respects and present an accurate and
complete disclosure of the financial condition and earnings of the Purchaser for
the periods covered, in accordance with generally accepted accounting principles
applied on a consistent basis. Such financials statements and the textual
portion thereof do not contain any untrue statement of a material nature or omit
to state any material fact.
(b) All accounts receivable, if any, (net of reserves for
doubtful accounts) of the Purchaser shown on financial statement, and as
incurred in the normal course of business since that date, are collectible in
the normal course of business.
(c) The Purchaser has good and marketable title to all of
its assets, business and properties including, without limitation, all such
properties reflected in the aforementioned balance sheet, except as disposed of
in the normal course of business, free and clear of any mortgage, lien, pledge,
charge, claim or encumbrance, except as shown on said balance sheet, and, in the
case of real properties, except for rights-of-way and easements which do not
adversely affect the use of such property.
4.04 CHANGES SINCE DATE OF FINANCIAL STATEMENTS. Since the date of
the financial statements, except as disclosed in writing, there has not been any
material change in the financial position or assets of the Purchaser.
4.05 ACCURACY OF ALL STATEMENTS MADE BY PURCHASER. No
representation or warranty by the Purchaser in this Agreement, nor any
statement, certificate, schedule or exhibit hereto furnished or to be furnished
by the Purchaser pursuant to this Agreement, nor any document or certificate
delivered to the Company or the Shareholders pursuant to this Agreement or in
connection with actions contemplated hereby, contains or shall contain any
untrue statement of material fact or omits or shall omit a material fact
necessary to make the statement contained therein not misleading.
4.06 LEGALITY OF SHARES TO BE ISSUED. The Xxxxxxx Shares to be
delivered pursuant to this Agreement, when so delivered, will have been duly and
validly authorized and issued by Purchaser and will be fully paid and
non-assessable. The Xxxxxxx Shares will be issued pursuant to a valid exemption
from registration under the Securities Act of 1933, as amended.
4.07 COMPLIANCE WITH APPLICABLE LAWS. The business of Purchaser has
not been, and is not being, conducted in violation of any applicable law, except
for possible violations which individually or in the aggregate
have not had and are not reasonably likely to have a material adverse effect. No
investigation or review by any governmental entity with respect to Purchaser is
pending or, to the Knowledge of Purchaser, threatened, nor has any governmental
entity indicated an intention to conduct the same, except for investigations or
reviews which individually or in the aggregate would not have, nor be reasonably
likely to have, a material adverse effect.
4.08 NO UNDISCLOSED LIABILITIES. There are no liabilities or debts
of Purchaser of any kind whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, and there is no existing condition,
situation or set of circumstances which could reasonably be expected to result
in such a liability or debt.
4.09 TAX RETURNS AND PAYMENT. Purchaser has duly and timely filed
all material tax returns required to be filed by it and has duly and timely paid
all taxes shown thereon to be due, except as reflected in its public filings and
except for taxes being contested in good faith. Except as disclosed in its
public filings, there is no material claim for taxes that results in a lien
against the property of Purchaser other than liens for taxes not yet due and
payable, none of which taxes is material. Purchaser has not received
notification of any audit of any tax return of Purchaser being conducted or
pending by a tax authority where an adverse determination could have a material
adverse effect, no extension or waiver of the statute of limitations on the
assessment of any taxes has been granted by Purchaser which is currently in
effect, and Purchaser is not a party to any agreement, contract or arrangement
with any tax authority or otherwise, which may result in the payment of any
material amount in excess of the amount reflected in its public filings.
ARTICLE V
COVENANTS OF SHAREHOLDERS AND PURCHASER
5.01 ACCESS TO INFORMATION. Purchaser and its authorized
representatives shall have full access during normal business hours to all
properties, books, records, contracts and documents of the Company, and the
Company shall furnish or cause to be furnished to Purchaser and its authorized
representative all information with respect to its affairs and business of the
Company as Purchaser may reasonably request.
5.02 ACTIONS PRIOR TO CLOSING. From and after the date of this
Agreement and until the closing date, the Company shall not materially alter its
business.
5.03 DUE DILIGENCE. The Shareholders and the Company and their
respective representatives shall have full access during normal business hours
to all operations, properties, books, records, contracts, and documents of the
Purchaser and the Purchaser shall furnish or cause to be furnished to the
Shareholders and the Company and their respective representatives all
information with respect to its affairs and business of the Purchaser, and to
the transaction contemplated hereunder, and cause the employees and staff of the
Purchaser to respond to any inquiries with respect thereto, as the Shareholders
and the Company may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO GLOBAL AND PURCHASER'S OBLIGATIONS
Each and every obligation of Purchaser to be performed on the closing
date shall be subject to the satisfaction of the Purchaser of the following
conditions:
6.01 TRUTH OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties made by the Company and Shareholders in this Agreement or given
on its behalf hereunder shall be substantially accurate in all material respects
on and as of the closing date with the same effect as though such
representations and warranties had been made or given on and as of the closing
date.
6.02 COMPLIANCE WITH COVENANTS. Shareholders shall have performed
and complied with all obligations under this Agreement which are to be performed
or complied with by them prior to or on the closing date, including the delivery
of the closing documents specified hereafter.
6.03 ABSENCE OF SUIT. No action, suit or proceedings before any
court or any governmental or regulatory authority shall have been commenced or
threatened and, no investigation by any governmental or regulatory authority
shall have been commenced, against the Shareholders, the Company or any of the
affiliates, associates, officers or directors of any of them, seeking to
restrain, prevent or change the transactions contemplated hereby, or questioning
the validity or legality of any such transactions, or seeking damages in
connection with any of such transactions.
6.04 RECEIPT OF APPROVALS, ETC. All approvals, consents and/or
waivers that are necessary to effect the transactions contemplated hereby shall
have been received.
6.05 NO MATERIAL ADVERSE CHANGE. As of the closing date there shall
not have occurred any material adverse change which materially impairs the
ability of the Company to conduct its business or the earning power thereof on
the same basis as in the past.
6.06 ACCURACY OF FINANCIAL STATEMENT. Purchaser and its
representatives shall be satisfied as to the accuracy of all balance sheets,
statements of income and other financial statements of the Company furnished to
Purchaser herewith.
6.07 PROCEEDINGS AND INSTRUMENTS SATISFACTORY; CERTIFICATES. All
proceedings, corporate or otherwise, to be taken in connection with the
transactions contemplated by this Agreement shall have occurred and all
appropriate documents incident thereto as Purchaser may request shall have been
delivered to Purchaser. The Company and the Shareholders shall have delivered
certificates in such detail as Purchaser may request as to compliance with the
conditions set forth in this Article 6.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS
OF THE COMPANY AND SHAREHOLDERS
Each and every obligation of the Company and shareholders to be
performed on the closing date shall be subject to the satisfaction prior thereto
of the following conditions:
7.01 TRUTH OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Purchaser contained in this Agreement shall be true at and as
of the closing date as though such representations and warranties were made at
and as of the transfer date.
7.02 PURCHASER'S COMPLIANCE WITH COVENANTS. Purchaser shall have
performed and complied with its obligations under this Agreement which are to be
performed or complied with by it prior to or on the closing date.
7.03 ABSENCE OF SUIT. No action, suit or proceedings before any
court or any governmental or regulatory authority shall have been commenced or
threatened and, no investigation by any governmental or regulatory authority
shall have been commenced against Purchaser, or any of the affiliates,
associates, officers or directors of the Purchaser seeking to restrain, prevent
or change the transactions contemplated hereby, or questioning the validity or
legality of any such transactions, or seeking damages in connection with any of
such transactions.
7.04 RECEIPT OF APPROVALS, ETC. All approvals, consents and/or
waivers that are necessary to effect the transactions contemplated hereby shall
have been received.
7.05 NO MATERIAL ADVERSE CHANGE. As of the closing date there shall
not have occurred any material adverse change which materially impairs the
ability of the Purchaser to conduct its business or the earning power thereof on
the same basis as in the past.
7.06 ACCURACY OF FINANCIAL STATEMENTS. The Company and the
Shareholders shall be satisfied as to the accuracy of all balance sheets,
statements of income and other financial statements of the Purchaser furnished
to the Company herewith. The Purchaser shall provide an unaudited balance sheet
as of September 30, 2003, which certifies that the Company has no outstanding
liabilities (other than these being converted to equity as set forth in the Debt
Purchase Agreement dated concurrently with the date of this Agreement).
7.07 NAME CHANGE. Purchaser shall have amended its corporate name
to "Perfisans Holding Corporation."
7.08 Proceedings and Instruments Satisfactory; Certificates. All
proceedings, corporate or otherwise, to be taken in connection with the
transactions contemplated by this Agreement shall have occurred and all
appropriate documents incident thereto as the Company may request shall have
been delivered to the Company. The Purchaser shall have delivered certificates
in such detail as the Shareholders may request as to compliance with the
conditions set forth in this Article 7.
ARTICLE VIII
INDEMNIFICATION
The Shareholders and the Company shall indemnify Purchaser for any
loss, cost, expense or other damage suffered by Purchaser resulting from,
arising out of, or incurred with respect to the falsity or the breach of any
representation, warranty or covenant made by the Company and the Shareholders
herein. Purchaser and Global shall indemnify and hold the Shareholders harmless
from and against any loss, cost, expense or other damage (including, without
limitation, attorneys' fees and expenses) resulting from, arising out of, or
incurred with respect to, or alleged to result from, arise out of or have been
incurred with respect to, the falsity or the breach of any representation,
covenant, warranty or agreement made by Purchaser and Global herein. This
indemnification shall expire 90 days from the closing.
ARTICLE IX
SECURITY ACT PROVISIONS
9.01 RESTRICTIONS ON DISPOSITION OF SHARES. Shareholders covenant
and warrant that the shares received are acquired for their own accounts and not
with the present view towards the distribution thereof and will not dispose of
such shares except (i) pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or (ii) in any other transaction which, in
the opinion of counsel, acceptable to Purchaser, is exempt from registration
under the Securities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission thereunder. In order to effectuate the
covenants of this sub-section, an appropriate endorsement will be placed upon
each of the certificates of common stock of the Purchaser at the time of
distribution of such shares pursuant to this Agreement, and stop transfer
instructions shall be placed with the transfer agent for the securities.
9.02 NOTICE OF LIMITATION UPON DISPOSITION. Each Shareholder is
aware that the shares distributed pursuant to this Agreement will not have been
registered pursuant to the Securities Act of 1933, as amended; and, therefore,
under current interpretations and applicable rules, the shareholder will
probably have to retain such shares for a period of at least one year and at the
expiration of such one year period sales may be confined to brokerage
transactions of limited amounts requiring certain notification filings with the
Securities and Exchange Commission and such disposition may be available only if
the Purchaser is current in its filings with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, or other public
disclosure requirements, and the other limitations imposed thereby on the
disposition of shares of the Purchaser. Additionally, "affiliates" owning shares
will be subject to additional restrictions limiting sales.
9.03 LIMITED OR NO PUBLIC MARKET FOR COMMON SHARES. Each
Shareholder acknowledges that the common shares being issued pursuant to this
agreement currently have a limited or no public market in which the shares may
be liquidated and there is no assurance that such pubic market will develop or
grow.
ARTICLE X
CLOSING
10.01 TIME. The closing of this transaction ("closing") shall be
effective on such date set by the parties, but in no event after December 3,
2003, unless agreed to by both parties. Such date is referred to in this
agreement as the "closing date."
10.02 DOCUMENTS TO BE DELIVERED BY SHAREHOLDERS OF PERFISANS. At the
closing, Shareholders of Perfisan shall deliver to Purchaser the following
documents:
(a) Certificates or assignments for all shares of stock
of the Company in the manner and form required by sub-section 1.01 hereof.
(b) A certificate signed by the President of the Company
that the representations and warranties made by the Company in this Agreement
are true and correct on and as of the closing date with the same effect as
though such representations and warranties had been made on or given on and as
of the closing date and that Shareholders have performed and complied with all
of their obligations under this Agreement which are to be performed or complied
with by or prior to or on the closing date.
(c) A copy of the by-laws of the Company certified by its
secretary and a copy of the certificate of incorporation of the Company.
(d) Certificates or letters from Shareholders evidencing
the taking of the shares in accordance with the provisions of this Agreement and
their understanding of the restrictions thereunder.
(e) Such other documents of transfer, certificates of
authority and other documents as Purchaser may reasonably request.
(f) A copy of the duly adopted resolutions of the board
of directors of the Company authorizing or ratifying the execution and
performance of this Agreement and authorizing or ratifying the acts of its
officers and employees in carrying out the terms and provisions thereof.
10.03 DOCUMENTS TO BE DELIVERED BY PURCHASER. At the closing,
Purchaser shall deliver to Shareholders the following documents:
(a) Certificates for the number of shares of common
stock of Purchaser as determined in Article 1 hereof.
(b) A certified copy of the duly adopted resolutions of
the board of directors of Purchaser authorizing or ratifying the execution and
performance of this Agreement and authorizing or ratifying the acts of its
officers and employees in carrying out the terms and provisions thereof.
(c) A certificate signed by the President of the
Purchaser that the representations and warranties made by the Purchaser in this
Agreement are true and correct on and as of the closing date with the same
effect as though such representations and warranties had been made on or given
on and as of the closing date and that the Purchaser has performed and complied
with all of their obligations under this Agreement which are to be performed or
complied with by or prior to or on the closing date.
(d) Documents for the appointment of new management and
the resignation of current management.
(e) A certificate from the Maryland Secretary of State
certifying that the Purchaser is in good standing in the State of Maryland.
(f) An opinion of counsel in the form previously agreed
to opining that all of the necessary steps to approve the transaction have been
taken and that the shares are being issued pursuant to a valid exemption to the
registration requirements of the 1933 Act.
(g) A certificate of the Transfer Agent listing all of
the Purchasers' shareholders as of the date of closing.
ARTICLE XI
TERMINATION AND ABANDONMENT
This Agreement may be terminated and the transaction provided for by
this Agreement may be abandoned without liability on the part of any part to any
other, at any time before the closing date, or on a post closing basis as
provided previously herein:
(a) By mutual consent of Purchaser and the Shareholders;
(b) By Purchaser if any of the conditions provided for in
Article 6 of this Agreement have not been met and have not been waived in
writing by Purchaser.
(c) By the Company if any of the conditions provided for
in Article 7 of this Agreement have not been met and have not been waived in
writing by the Company.
In the event of termination and abandonment by any party as above
provided in this Article, written notice shall forthwith be given to the other
party, and each party shall pay its own expenses incident to preparation for the
consummation of this Agreement and the transactions contemplated hereunder.
ARTICLE XII
MISCELLANEOUS
12.01. NOTICES. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given, if delivered
by hand or mailed, certified or registered mail with postage prepaid:
(a) If to the Company or the Shareholders, to To-Xxx Xxx
at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0xx to such other person
and place as the Company shall furnish to Purchaser in writing, with a copy to
Xxxxxxx, Savage, Kaplowitz, Wolf & Marcus, LLP., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxx, Esq.; or
(b) If to Purchaser or Global, to c/o Xxxxxx X. Xxxxx,
Attorney At Law, at 0000 Xxxxxxxx Xxxx., Xxxxxxxx, Xxxx 00000, or to such other
person and place as Purchaser shall furnish to Company in writing.
12.02. ANNOUNCEMENTS. Announcements concerning the transactions
provided for in this Agreement by either the Company or Purchaser shall be
subject to the approval of the other in all essential respects, except that the
approval of the Company shall not be required as to any statements and other
information which Purchaser may submit to its shareholders.
12.03 DEFAULT. Should any party to this Agreement default in any of
the covenants, conditions, or promises contained herein, the defaulting party
shall pay all costs and expenses, including a reasonable attorney's fee, which
may arise or accrue from enforcing this Agreement, or in pursuing any remedy
provided hereunder or by the statutes of the State of Nevada, United States of
America.
12.04 ASSIGNMENT. This Agreement may not be assigned in whole or in
part by the parties hereto without the prior written consent of the other party
or parties, which consent shall not be unreasonably withheld.
12.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, their successors and
assigns.
12.06 HOLIDAYS. If any obligation or act required to be performed
hereunder shall fall due on a Saturday, Sunday or other day which is a legal
holiday established by the State of Nevada, such obligation or act may be
performed on the next succeeding business day with the same effect as if it had
been performed upon the day appointed.
12.07 COMPUTATION OF TIME. The time in which any obligation or act
provided by this Agreement is to be performed is computed by excluding the first
day and including the last, unless the last day is a holiday, in which event
such day shall also be excluded.
12.08 GOVERNING LAW AND VENUE. This Agreement shall be governed by
and interpreted pursuant to the laws of the Sate of Nevada. Any action to
enforce the provisions of this Agreement shall be brought in a court of
competent jurisdiction within the State of Nevada and in no other place.
12.09 PARTIAL INVALIDITY. If any term, covenant, condition or
provision of this Agreement or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, the remainder of
this Agreement or application of such term or provision to persons or
circumstances other than those as to which it is held to be invalid or
unenforceable shall not be affected thereby and each term, covenant, condition
or provision of this Agreement shall be valid and shall be enforceable to the
fullest extent permitted by law.
12.10 NO OTHER AGREEMENTS. This Agreement constitutes the entire
Agreement between the parties and there are and will be no oral representations
which will be binding upon any of the parties hereto.
12.11 RIGHTS ARE CUMULATIVE. The rights and remedies granted
hereunder shall be in addition to and cumulative of any other rights or remedies
provided under the laws of the State of Nevada.
12.12 WAIVER. No delay or failure in the exercise of any power or
right shall operate as a waiver thereof or as an acquiescence in default. No
single or partial exercise of any power or right hereunder shall preclude any
other or further exercise thereof or the exercise of any other power or right.
12.13 SURVIVAL OF COVENANTS, ETC. All covenants, representations,
and warranties made herein to any parties or in any statement or document
delivered to any party hereto, shall survive the making of this Agreement and
shall remain in full force and effect until the obligations of such party
hereunder have been fully satisfied.
12.14 FURTHER ACTION. The parties hereto agree to execute and
deliver such additional documents and to take such other and further action as
may be required to carry out fully the transaction(s) contemplated herein.
12.15 AMENDMENT. This Agreement or any provision hereof may not be
changed, waived, terminated or discharged except by means of a written
supplemental instrument signed by the party or parties against whom enforcement
of the change, waiver, termination, or discharge is sought.
12.16 HEADINGS. The descriptive headings of the various Sections or
parts of this Agreement are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
12.17 COUNTERPARTS. This agreement may be executed in two or more
partially or fully executed counterparts, each of which shall be deemed an
original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument, provided that Purchaser shall have
no obligations hereunder until all Shareholders have become signatories hereto.
IN WITNESS WHEREOF, the parties hereto executed the foregoing
Acquisition Agreement as of the day and year first above written.
PURCHASER: XXXXXXX INDUSTRIES, INC.
By
---------------------------------
Xxxxx Xxxxxxx, President & CEO
COMPANY: PERFISANS NETWORKS CORPORATION
By
---------------------------------
To-Xxx Xxx, President & CEO
SHAREHOLDERS:
---------------------------------
To-Xxx Xxx
---------------------------------
Xxx Xxxx
GLOBAL FUNDING GROUP, INC.
By:
---------------------------------
SCHEDULE A
SHAREHOLDER NUMBER OF SHARES
Xxxxxx Xxxxx, Xxxxxx Xxxx and Ka Bun Sit 83,334
Xxxx, Xxx 500,000
EE Solutions, Inc. 312,500
Xxxx, Xxxxxx 83,334
General Resources Co. 2,000,000
Xxxxx, Xxx-Xxxx 100,000
Cheng. Xxxx, H. 50,000
Xxxxxxxxx, Xxxxxxx 700,000
Xxx, Xxx-Xxxx 33,335
Xxx, Xxx, Oi Xxx 50,000
Xxx, To-Hon 500,000
Heung, Yam, Kit Charley 50,000
X. Xxxx Family Limited Partnership 400,000
Sharp Idea Securities Co, Ltd. 446,667
HJG Partnership 416,667
So Lai Xxx Xxxxx 21,000
Xxxxxxx Xxx 10,000
Sze Chi Man 10,000
Kan wai Xxx Xxxxxxx 20,000
Xxxx Xx Tian 48,500
Xxxxxx Xxxxxxx 14,000
Xxx Xxxx Yu/Feng Xxxx Xxxx 20,000
Xxxxx So 10,000
Anges So 10,000
Xxx Xxxx Xxx Xxx 10,000
Xxxxx Xxx 10,000
Xxxxx Xxxx 15,000
Sunny X-X Xxxxx 10,000
Xxxxx Xxx 213,333
Xxxx Xx Xxxx 21,333
Shingfat International Consulting Inc. 800,000
Harbour Capital Management Group(1999) Inc. 311,459
Xxxx, Xxx 7,000,000
Xxxxx, Xxx-Xxxx 300,000
Cheng, Kwan, H 150,000
Pei-Pei, Xxx 6,000,000
Xxxxxxxxx, Xxxxxxx 600,000
Xxx, To-Hon 7,000,000
Yam Kit Xxxxxxx Xxxxx and Tak Oi Xxx Xxx 300,000
Sharp Idea Securities Co, Ltd 1,500,000
Harbour Capital Management Group(1999) Inc. 1,142,500
Xxxxxx Xxxxx, Xxxxxx Xxxx and Ka Bun Sit 250,000
Xxx, Xxxxxx 250,000
Xxxx, Xxxxxx 500,000
Liu, Kerpei, Xxxxx 100,000
Legend Rider Development Limited 250,000
Xxx, Xxx-Xxxx 100,005
Xxxx, Xxxxxx 25,000
Herh, Ting 10,000
Sit, Ka Bun 100,000
TOTAL NUMBER OF SHARES ISSUED 32,857,967
=============
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