VIVA INTERNATIONAL, INC / XXXX HOLDING, LLC.
Contract Number VIVA/CH24092004-3
THIS AGREEMENT (hereafter the "AGREEMENT") is entered in this 16 day of
November, 2004 by and between;
Viva International, Inc. a Delaware Corporation, formed under the laws of
Delaware, having corporate offices at 000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 0, Xxxxxxxx
Xxxx, Xxxxxxxx 00000, IRS EIN # 00-0000000, hereafter the SELLER,
AND:
Xxxx Holding, LLC. a Limited Liability Corporation, formed under the laws of
Michigan, having offices at 25682 Xxxxxxx, Xxxx, Xxxxxxxx 00000, IRS #010776062
hereafter PURCHASER,
WHEREAS;
The SELLER is the owner and in control of Universal Filtration Industries, Inc.
presently a wholly owned subsidiary of the SELLER formed under the laws of New
York with offices at 000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 0, Xxxxxxxx Xxxx, Xxxxxxxx
00000, IRS EIN #00-0000000 hereafter UFI, the object (Target) of this AGREEMENT.
UFI has outstanding and issued approximately 400 shares of common stock of which
the following shares have been issued and in the control of:
Viva International, Inc. **100%**
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THERE ARE NO OTHER OUTSTANDING SHARES
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The PURCHASER having operations in Michigan and controlling interest in Computer
Decisions International, LLC (hereafter CDI) and in seeking to raise additional
development funds for CDI has approached the SELLER a publicly traded company,
through a Letter of Intent Exhibit D, to sell UFI (Target) to the PURCHASER. The
PURCHASER'S purpose of the acquisition is to merge and absorb UFI (Target) with
Computer Decisions International, LLC. (CDI), thus providing CDI the opportunity
to apply and register with the Securities and Exchange Commission that which is
necessary to convert the surviving entity from a privately held company into a
publicly traded company.
The SELLER in seeking to raise shareholder value by divesting itself of a
non-core inactive subsidiary operation with debt, in exchange for the assumption
of said debts of the subsidiary and the receipt of equity in the surviving
public entity which will evolve from the combination of UFI (Target) and CDI.
SELLER hereby acknowledges and agrees to distribute the equity it receives to
its shareholders of record as of a date indicated by its Board of Directors and
commensurate with the execution of this agreement. PURCHASER agrees to pay all
costs associated with the issuance of share certificates to the individual
shareholders of the SELLER.
WHEREAS;
The Stockholders of the SELLER and UFI believe it to be to their advantage, and
to the advantage of all of the Stockholders of SELLER, to sell and transfer all
the property of UFI to CH thus merging or combining any existing business that
may be carried on by UFI into the business of CDI.
The Stockholders of the PURCHASER believe it to be to their advantage to
purchase UFI and merge the business now carried on by UFI in the business of CH
and or CDI. PURCHASER having completed their Due Diligence and received,
acknowledged, and accepted an attorney's opinion do agree to go forward.
THEREFORE;
AS THE PURCHASER DOES AGREE TO PURCHASE UFI AND THE SELLER DOES AGREE TO SELL
UFI, PURCHASER AND SELLER ACKNOWLEDGE THAT THIS AGREEMENT SHALL BE SUBJECT TO
THE TERMS AND CONDITIONS SET FORTH BELOW;
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Section 1. Terms
1.1 Purchase Terms.
A. Subject to the conditions and terms set forth herein, the approval of
PURCHASER'S primary lender and the ability of the PURCHASER to secure
adequate debt financing, the PURCHASER does assume, guarantee and accepts,
without reservation of any type, all claims, debts and or encumbrances now
of record and arising prior to this AGREEMENT, which shall not exceed one
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hundred thousand dollars US ($100,000.00) , per Exhibit G, and any and all
claims, debts, and or encumbrances that may arise in conjunction with the
execution of the PURCHASER'S responsibilities under this AGREEMENT.
B. PURCHASER agrees to assume all costs, legal fees, registration,
professional fees, accounting fees, stock transfer fees, filing fees, and
levies whatsoever associated with bringing UFI current and in "good
standing" and any such costs and fees that are customarily necessary in and
to the process of the ultimate purpose which is becoming a publicly traded
company.
C. PURCHASER specifically relieves, and agrees to hold harmless, the SELLER
from any and all liability, debt, responsibility, claims, costs, fees, and
accountability, of any and all types, arising after the date of execution
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of this AGREEMENT.
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D. PURCHASER will cause the appointment of a person, selected by SELLER, to
a seat on the Board of Directors of the new publicly traded company. E.
SELLER agrees to transfer, assign, and sell all its rights, claims, and
ownership of UFI, free and clear of all claims whatsoever except those
agreed to herein. SELLER shall retain any and all rights to any
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pre-AGREEMENT patents, copyrights, trademarks, service marks, trade names,
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licenses, right of action or process, together with claims of funds,
income, and or royalties, arising out of patents, copyrights, trademarks,
service marks, trade names, licenses, right of actions and or process,
together with any potential income and or royalties arising from such, or
that have arisen and not yet identified, or potentially arising out of such
only to the extent that the SELLER had said ownership or rights to such,
prior to the execution of this agreement and shall not extend to any such
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arising after the execution of this AGREEMENT. Said royalties, patents,
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copyrights, trademarks, licenses, right of actions, and or process which
were the property of the SELLER through UFI prior to this AGREEMENT, shall
remain the property of SELLER as if the SELLER had not sold UFI to
PURCHASER.
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1.2 Purchase Price.
The PURCHASER and the SELLER agree the purchase price of shall be:
A. the total assumption of all liabilities of UFI by the PURCHASER as
verified (having previously been subject to fiscal year end audits)
and as listed in Exhibit G; and stated limitation above, and
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C. the establishment of a publicly traded company traded on a publicly
regulated exchange, hereafter the New Company; and
B. the issue and transfer to SELLER'S shareholders of forty one (41)
million shares of the publicly traded common stock of the New Company.
Said company being the surviving publicly traded company created from
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the merger of UFI and CDI.
1.3 Payment of Purchase Price.
The purchase price shall be considered paid to the SELLER upon completion
of each and all the actions, and in the order and or simultaneously, as
follows;
A. PURCHASER shall retain a licensed United States Security and Exchange
Attorney, and complete any processes filings, including the payment of
all fees and cost necessary, to bring the New Company completely
through the process of the security industry's standard listing
requirements, assigning of a symbol and receive such authority
customary to be a publicly traded stock listed on and traded through a
publicly regulated exchange.
B. PURCHASER shall retain a licensed Certified Public Accountant, and
complete any processes, filings, including the payment of all fees and
cost necessary, to bring the New Company completely through the
process of the security industry's standard listing requirements,
assigning of a symbol and receive such authority customary to be a
publicly traded stock listed on and traded through a publicly
regulated exchange.
C. PURCHASER shall retain a Transfer Agent / Underwriter, and complete
any processes, filings, including the payment of all fees and cost
necessary, to bring the New Company completely through the process of
the security industry's standard listing requirements, assigning of a
symbol and receive such authority customary to be a publicly traded
stock listed on and traded through a publicly regulated exchange.
D. PURCHASER shall complete the issue of and transfer of the New
Company's publicly traded stock as described in 1.2 B, to the SELLER'S
shareholders of record as of date commensurate with the execution of
this agreement and in accordance with the establishment of a record
date as established and provided by the SELLER'S Board of Directors.
E. PURCHASER shall provide to the SELLER such documentation necessary
that the PURCHASER has assumed the liabilities of UFI per Exhibit G,
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and relieved said liabilities and will indemnify, defend and hold
harmless the SELLER in any action arising out of such liabilities,
together with the appointment described in 1.1, D above.
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F. CLOSING SHALL BE ON OR BEFORE, ninety (90) calendar days from the date
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of this AGREEMENT unless extended by mutual agreement in writing. This
AGREEMENT shall remain and will be considered executory until A, B, C,
D and E of this section have been satisfied, irrespective of any other
clause herein.
Section 2. Representations
As a material inducement to the PURCHASER to enter into the AGREEMENT and
purchase UFI, the SELLER and UFI, jointly and severally, represent and warrant
that:
2.1 Organization and Corporate Powers.
UFI is a corporation duly incorporated and validly exists under the laws of the
State of New York as evidenced by Exhibit A, and UFI is qualified to do business
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in every jurisdiction in which its ownership of property or conduct of business
requires it to be qualified. The copies of the Corporation's Articles of
Incorporation, bylaws, and books and records or copies thereof have been or will
be furnished to the PURCHASER on or before the closing and such copies thereof
reflect all amendments made thereto at any time prior to the date of this
AGREEMENT and such copies are correct and complete.
2.2 Capital Stock and Related Matters.
The PURCHASER acknowledges and the SELLER represents that the shares of stock of
UFI and any and all shares of stock to be purchased of UFI have "NOT" been
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registered under Securities Act of 1933 ("1933 Act") or under any state security
laws prior to this Agreement.
2.3 No Undisclosed Liabilities.
The SELLER warrants to the PURCHASER that there are no undisclosed liabilities
of UFI to the best of the SELLER'S knowledge.
As a material inducement to the SELLER to enter into AGREEMENT and sell
UFI, the PURCHASER represents and warrants that:
2.4 Corporation.
CH is a limited liability corporation duly incorporated under the laws of the
Michigan and CH is qualified to do business in every jurisdiction in which its
ownership of property or conduct of business requires it to qualify.
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2.5 Corporate Powers.
The PURCHASER has all requisite corporate powers and authority and all material
licenses, permits and authorizations necessary to own and operate its
properties, carry on its business as now conducted, and enter into and execute
this AGREEMENT.
Section 3. Subsidiaries
Except as evidenced in Exhibit I, UFI has no, nor has had any, subsidiaries or
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affiliated companies during the period prior to this AGREEMENT while a
subsidiary of the SELLER, and does not otherwise own or control, directly or
indirectly, any equity interest in any corporation or entity that has not been
disclosed in this agreement.
Section 4. Conduct of Business; Liabilities
Except as set forth in Exhibit G, UFI is not in default under, and no condition
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exist that with notice or lapse of time would constitute a default of UFI under;
a. any mortgage, loan agreement written or oral, evidence of indebtedness or
other instrument evidencing borrowed money to which UFI is a party or by
which UFI is bound or;
b. any judgment, order or injunction of any court, arbitrator or government
agency that would reasonably be expected to affect materially and adversely
the business, financial condition or results of operations of UFI taken as
a whole.
c. PURCHASER agrees and acknowledges that the SELLER shall not be liable, be
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responsible and or held accountable for any of the liabilities or
responsibilities whatsoever of UFI incurred or accrued prior to, and or
after, the execution date and time of this AGREEMENT, unless such liability
is expressly agreed to be assumed or retained by SELLER in Exhibit K.
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d. PURCHASER hereby agrees to accept all responsibilities, and be held
accountable for any of the liabilities or responsibilities whatsoever of
UFI incurred or accrued prior to the execution date and time of this
agreement and does hereby release, indemnify, and hold harmless SELLER, its
agents, officers, directors, attorneys, affiliates, subsidiaries, heirs and
assigns, from any and all such liability or claims whatsoever, which were
incurred, accrued, and or arise prior to, out of, and or after, the
execution date and time of this AGREEMENT.
Section 5. Financial Statements
1. SELLER has or will provide PURCHASER on or before the closing, their
audited consolidated financial statements for the year 2003, Exhibit L,
which includes UFI.
2. Before 1st of December, 2004 SELLER shall provide PURCHASER unaudited
financial statements of UFI for the year and period ended September 30,
2004.
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Section 6. Title and Related Matters
Except as set forth in Exhibit M, UFI has good and marketable title to all of
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its property, real or personal. And other assets included in the Financial
Statement, free and clear of all security interest, mortgages, liens, pledges,
charges, claims or encumbrances of any kind or character.
Section 7. Litigation
Except as set forth in Exhibit G, to the best of the SELLER'S knowledge there
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are no material actions, suits, proceedings, orders, investigations or claims
pending or overtly threatened against UFI or its property of either, at law or
in equity, or before or by any governmental department, commission, board,
bureau, agency or instrumentality. UFI is not subject to any arbitration
proceedings under collective bargaining agreements or otherwise or, to the best
of SELLER'S knowledge subject to any government investigations or inquires: and
to the best of SELLER'S directors, and responsible officers' of UFI, there is no
basis for any of the foregoing.
Section 8. Tax Matters
Except as set forth in Exhibit G,
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a. SELLER has prepared in a substantially correct manner and have filed all
tax returns and reports heretofore required to be filed by them and paid
all taxes shown as due thereon;
b. no taxing authority has asserted any deficiency in the payment of any tax
or informed SELLER that it intends to assert any such deficiency or to make
any audit or other investigation of UFI for the purpose of determining
whether such a deficiency should be asserted against UFI.
Section 9. Compliance with Laws
To the best of SELLER'S knowledge, UFI is, in the conduct of business, in
substantial compliance with all laws, statutes, ordinances, regulations, orders,
judgments or decrees applicable to them, the enforcement of which, if UFI was
not in compliance therewith, would have a materially adverse effect on the
business of UFI, taken as a whole. Neither SELLER nor UFI have received any
notice of any asserted present or past failure by UFI to comply with such laws,
statutes, ordinances, regulations, orders, judgments or decrees.
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Section 10. Employment and Labor Related Matters
Except as set forth in Exhibit N, or as provided in this agreement, to SELLER'S
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knowledge, no employee of UFI is in violation of any material term of any
employment contract, or any other contract or agreement relating to the
relationship of such employee with UFI or any other party because of the nature
of the business conducted or to be conducted by UFI. Each employee of UFI with
access to confidential or proprietary information has executed, or in the
ordinary course of business will execute, a proprietary information agreement
obligating such employee to hold confidential UFI proprietary information. UFI
has in all material respects complied with all applicable US Laws relating to
employment.
Section 11. Agreements and Commitments
Exhibit O, contains a complete and accurate list of each agreement, contract,
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instrument and commitment to which UFI is a party that provides for payment in
excess of three thousand US dollars, (US$3,000.00), per year or whose term is in
excess of one year and is not cancelable upon thirty, (30), days notice without
liability, penalty, or premium, other than normal cancellation fee or charge.
Section 12. Personnel
Exhibit P sets forth a true and complete list of names, title, and current
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salaries of all officers of UFI; the names of all directors of UFI the wage
rates, (or range ), for each class of exempt and nonexempt, salaried and hourly
employees of UFI all scheduled or contemplated increases in compensation or
bonuses; and all scheduled or contemplated promotions.
Section 13. Intellectual Property
UFI owns or has the right to use free and clear of all liens, charges, claims
and restrictions, those patents, trademarks, service marks, trade names,
copyrights, licenses and other intellectual property rights necessary to comply
with this AGREEMENT. To the knowledge of SELLER or UFI, UFI has not infringed
upon, nor is it infringing upon, any patent, trademark, service xxxx, and trade
name, copyright or other intellectual property of any third party nor is SELLER
and UFI aware of any violation by third party of such.
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Section 14. Benefit Plans
Except as listed in Exhibit Q, UFI does not maintain any retirement or deferred
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compensation plan, saving, incentive, stock option or stock purchase plan
unemployment compensation plan, vacation pay, severance pay, bonus or benefit
arrangement, insurance or hospitalization program or any other fringe benefit
arrangement for any employee, consultant, or agent of UFI or SELLER whether
pursuant to a contract, agreement, custom, law, or informal understanding for
which SELLER and UFI may have an ongoing material liability after the execution
of this AGREEMENT.
Section 15. Assignment
The Parties agree that no party may assign his interest under this AGREEMENT
without the prior written consent of the other party, which consent will not be
unreasonably withheld. However, each party may, by notice to the other party,
assign its interest under this AGREEMENT to an affiliated company. In the case
of such assignment, the Parties shall remain liable for all their obligations
under this AGREEMENT.
Section 16. Compliance with the laws, rules and regulations
The Parties agree to comply with all applicable laws, rules and regulations of
the United States, and Michigan, PURCHASER agrees to file applications and be
responsible for all costs for any and all certificates, permits, licenses,
governing authority approvals, and any other documentation otherwise necessary
to meet the Parties' obligations under this AGREEMENT. PURCHASER and SELLER
agree to execute and complete any and all Exhibits and supply all information
necessary to complete this AGREEMENT on or before closing.
Section 17. Governing law
This AGREEMENT shall be interpreted and governed by and enforced in accordance
with the laws of the State of Michigan.
Section18. Dispute resolutions
1. All disputes arising in connection with this AGREEMENT, or any agreement made
in furtherance thereof, except as to matters of urgent interest, shall be
finally settled by arbitration in accordance with the arbitration rules of the
American Arbitration Association.
2. The arbitral tribunal shall be composed of three (3) arbitrators.
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3. SELLER shall choose one arbitrator, PURCHASE shall choose one
arbitrator, and the two so chosen shall appoint the third arbitrator.
The place of arbitration shall be convenient to both parties in the
State of Michigan. The arbitral procedure shall be conducted in the
English language.
4. Each party to the arbitration shall bear the cost of their individual
representation regardless of the arbitration decision and award and
such cost shall not be a part of said decision and or award.
5. Each party to the arbitration shall share equally in any cost and fees
of the American Arbitration Association that are assessed per the fee
schedule as published.
6. Any award or decision will be enforceable through any court of proper
jurisdiction in the United States of America.
Section 19. Severability, Corrections, Counterparts.
Any provision of the AGREEMENT prohibited by applicable law shall be invalid to
the extent of such prohibition unless it is determined by the Parties hereto
that such prohibition invalidates the purpose or intent of this AGREEMENT. The
parties to this AGREEMENT agree to modify and execute any changes necessary to
correct any errors clerical and verbiage which may cloud and or misdirect the
intent and purpose of this AGREEMENT. This AGREEMENT may be executed in one or
more counterparts, each of which when executed shall be deemed an original, but
all of which taken together shall constitute one and the same document.
Section 20. Force Majeure
Neither party hereto shall be responsible for damages caused by the delay or
failure to perform in whole or in part hereunder or noncompliance with any of
the terms hereof when such delay, failure or noncompliance is caused by or
results from acts of God, earthquakes, fires, floods, perils of sea, wars
(declared or undeclared), terrorist acts, strikes, riots or any other causes
beyond the control of the party who is in default or who is unable to comply
with the terms of this AGREEMENT, whether or not similar to those enumerated.
Section 21. Modification
This AGREEMENT may only be modified by an instrument in writing executed by all
the Parties hereto this AGREEMENT.
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Section22. Notices
All notices and communications hereunder shall be made in writing, posted in the
U.S. Mail, and properly addressed to the Parties as follows:
Xxxx Holding, LLC: (PURCHASER)
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25682 Arcadia
Xxxx, Xxxxxxxx 00000
Viva International, Inc: (SELLER)
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000 Xxxxxxxx Xxxx Xxxxx Xxxxx 0
Xxxxxxxx Xxxx, Xxxxxxxx 00000
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Universal Filtration Industries, Inc: (Target)
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000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 0
Xxxxxxxx Xxxx, Xxxxxxxx 00000
IN WITNESS WHEREOF, the parties do hereby agree to and execute this AGREEMENT by
setting below their hand and seal, this 16 day of November, 2004.
/s/ Xxxxxx X. Xxxx /s/ Xxxxxx Xxxxx
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Xxxxxx X. Xxxx, Xxxxxx Xxxxx
As President and C.E.O., As Chairman of the Board.,
for and on behalf of for and on behalf of
Xxxx Holding LLC. Viva International, Inc.
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
As President and C.E.O.,
for and on behalf of
Universal Filtration Industries, Inc.
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INDEX of EXHIBITS
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Exhibit A Copy of Certificate of Incorporation and "In Good Standing" of
Universal Filtration Industries, Inc.
Exhibit B Resolution of Board of Directors of Universal Filtration
Industries, Inc., Approval to be Sold.
Exhibit C Resolution of Board of Directors of Viva International, Inc.,
Approval to Sell.
Exhibit D Letter of Intent to Purchase Universal Filtration Industries,
Inc.
Exhibit E Resolution of Board of Directors of Xxxx Holdings, LLC.,
Approving Purchase of Universal Filtration Industries, Inc.
Exhibit F Copy of Stock Certificates Universal Filtration Industries,
Inc.,
Exhibit G Accumulated List of ALL Debts and Litigation
Exhibit H Copy of Stock Certificate to be issued by New Publicly Traded
Company to SELLER'S Stockholders
Exhibit I Subsidiaries of Universal Filtration Industries, Inc.
Exhibit J Names and Address of SEC attorney, CPA, and Transfer Agent
Exhibit K Liabilities retained by SELLER
Exhibit M Property Encumbered
Exhibit N Labor and Employment Agreements
Exhibit O Contractual Agreements
Exhibit P Personnel
Exhibit Q Employee Benefit Plans
Exhibit R Attorney Opinion
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