Exhibit 2.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made this 29th day
of September, 2004, by and among Creative Vistas, Inc., an Arizona corporation
having its principal place of business at 0000 Xxxx XxXxxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000-0000 (the "Company" or "Creative Vistas"), AC Technical
Systems, Ltd., an Ontario corporation ("AC Technical"), the shareholders of AC
Technical, being The Xxxxx Trust and The Navaratnam Trust (the "AC Technical
Stockholders"), and A.C. Technical Acquisition Corp., an Ontario corporation
with an address at 0000 Xxxxxx Xxxxxx, Xxxxx 0-00, Xxxxxx, Xxxxxxx, X0X 0X0
("Canco"). The Company, Canco, AC Technical and the AC Technical Stockholders
shall be collectively referred to herein as the "Parties." Certain capitalized
terms used herein are defined in Section 9.12 hereof.
WHEREAS, AC Technical is authorized to issue an unlimited number of
shares of common stock (the "AC Common Stock") and has issued an aggregate of
ten million (10,000,000) shares of the AC Common Stock (the "Shares"), all of
which have been issued to and are owned by the AC Technical Stockholders as more
specifically set forth on Annex A; and
WHEREAS, Canco is authorized to issue an unlimited number of Class VFV
(voting fixed value) shares ("Class VFV Shares") and has issued an aggregate of
one hundred (100) Class VFV Shares, fifty (50) of which have been issued to and
are owned by each Xxxxxxxx Xxxxx and the Company; and
WHEREAS, Canco is authorized to issue an unlimited number of Class NVE
(non voting equity) shares ("Class NVE Shares") and has issued an aggregate of
one hundred (100) Class NVE Shares, all of which have been issued to and are
owned by Creative Vistas; and
WHEREAS, the AC Technical Stockholders desire to sell the Shares to
Canco in exchange for a promissory note in favor of each of the AC Technical
Stockholders in the principal amount set forth on Annex A and otherwise in the
form attached hereto as Exhibit A (the "Notes") upon the terms and subject to
the conditions set forth in this Agreement; and
WHEREAS, in order to induce the AC Technical Stockholders to sell the
Shares in exchange for the Notes, the Company has agreed to make certain
representation, warranties and covenants hereunder; and
WHEREAS, AC Technical will become a wholly-owned Subsidiary of Canco
and an indirect Subsidiary of the Company upon completion of the transactions
contemplated hereby.
NOW, THEREFORE, in consideration of the premises, covenants and
conditions hereof, the parties hereto do mutually agree as follows:
ARTICLE 1
Sale of Shares
Section 1.1 Sale of the Shares. Subject to the terms and conditions
hereof, the AC Technical Stockholders agree to sell and deliver the Shares to
Canco and Canco agrees to purchase the Shares from the AC Technical
Stockholders.
Section 1.2 Purchase Price. The total purchase price payable by Canco
to the AC Technical Stockholders shall be three million three hundred thousand
U.S. dollars ($3,300,000). The purchase price shall be allocated to the AC
Technical Stockholders in accordance with the allocation set forth on Annex A.
Section 1.3 Payment of Purchase Price. The purchase price payable to
the AC Technical Stockholders shall be paid at Closing (as defined herein) by
delivery of the Notes from Canco to the AC Technical Stockholders.
ARTICLE 2
Closing and Delivery
Section 2.1 Closing Date. The closing of the purchase and sale of the
Shares (the "Closing") shall be held at such a date (the "Closing Date") and
time as determined at the mutual discretion of the Parties; provided, however,
that the Closing shall take place within ten (10) days after the conditions
precedent contained in Article 7 hereof have been satisfied. The Closing shall
take place at the offices of Xxxxxxx Xxxxxxxxx LLP, located at 000 Xxxxxxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000.
Section 2.2 Delivery at Closing. At the Closing, the AC Technical
Stockholders shall deliver to Canco stock certificates representing the Shares,
duly endorsed for transfer to Canco, and free and clear of all security
interests, liens, encumbrances, equities and other charges, and Canco shall
deliver the Notes to the AC Technical Stockholders.
ARTICLE 3
Representations and Warranties of the Company
Except as set forth herein, the Company hereby represents and warrants
to the AC Technical Stockholders that:
Section 3.1 Organization; Capitalization. Creative Vistas is a duly
organized and validly existing corporation in good standing under the laws of
the State of Arizona, authorized to issue an aggregate of 100,000,000 shares of
no par value common stock ("Common Stock") and 50,000 shares of no par value
preferred stock ("Preferred Stock"). On the Closing Date, there will be issued
and outstanding no more than 10,000,000 shares of Common Stock, all of which
such issued and outstanding shares will be validly issued, fully paid and
nonassessable. On the Closing Date, there will be issued and outstanding no
shares of Preferred Stock. On the Closing Date, there will be no issued or
outstanding securities and no issued or outstanding options, warrants or other
rights, or commitments or agreements of any kind, contingent or otherwise, to
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purchase or otherwise acquire capital stock of Creative Vistas or any issued or
outstanding securities of any nature convertible into capital stock other than
the 10,000,000 shares of Common Stock which are currently outstanding. There is
no proxy or any other agreement, arrangement or understanding of any kind
authorized, effective or outstanding which restricts, limits or otherwise
affects the right to vote any shares of Common Stock. No shares of capital stock
of Creative Vistas were issued in violation of the preemptive rights of any
person or entity.
Section 3.2 Binding Agreement. This Agreement and the transactions
contemplated hereby have been duly approved by the Board of Directors of
Creative Vistas. This Agreement has been duly executed and delivered by Creative
Vistas and constitutes the legal, valid and binding obligation of Creative
Vistas enforceable against it in accordance with the terms hereof, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
of general application relating to or affecting the enforcement of rights
hereunder or general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 3.3 Recent Business Operations. The business of Creative Vistas
since its reorganization in 1996 has been limited to the search for an
acquisition or merger partner and certain transactions described in its filings
with the Commission (as defined below).
Section 3.4 Foreign Qualifications. Creative Vistas is, and on the
Closing Date will be, duly authorized, qualified and licensed under any and all
applicable laws, regulations, ordinances or orders of public authorities to
carry on its business in the places and in the manner as presently conducted.
The business of Creative Vistas does not require it to be registered as an
investment company or investment advisor, as such terms are defined under the
Investment Company Act and the Investment Advisors Act of 1940.
Section 3.5 Subsidiaries. Creative Vistas has, and immediately prior to
the Closing will have, no Subsidiaries other than Canco.
Section 3.6 SEC Reports; Financial Statements. (a) The Company has
filed all reports required to be filed by it under the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including
pursuant to Section 13(a) or 15(d) thereof, since May 2001 (the foregoing
materials being collectively referred to herein as the "SEC Reports") on a
timely basis or has received a valid extension of such time of filing and has
filed any such SEC Reports prior to the expiration of any such extension. The
Sellers have identified and made available to the Purchasers a copy of all SEC
Reports filed within the 10 days preceding the date hereof. As of their
respective dates, the SEC Reports complied in all material respects with the
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Securities and Exchange Commission (the "Commission")
promulgated thereunder, and none of the SEC Reports, to the knowledge of the
Company, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the Company included
in the SEC Reports comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements (the
"Creative Vistas Financial Statements") have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved ("GAAP"), except as may be otherwise specified in such
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financial statements or the notes thereto, and fairly present in all material
respects the financial position of the Company and its consolidated subsidiaries
as of and for the dates thereof and the results of operations and cash flows for
the periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
(b) Except as set forth on Schedule 3.6(b) attached hereto,
since the date of the filing of its most recently filed periodic report under
the Exchange Act: (i) there has been no event, occurrence or development that
has had or that could result in a Material Adverse Effect (as defined in Section
9.12 hereof); (ii) the Company has not incurred any liabilities (contingent or
otherwise) or amended any material term of any outstanding security; (iii) the
Company has not altered its method of accounting or the identity of its
auditors; (iv) the Company has not declared or made any dividend or distribution
of cash or other property to its stockholders or purchased, redeemed or made any
agreements to purchase or redeem any shares of its capital stock; (v) the
Company has not issued any equity securities to any officer, director or
Affiliate (as defined in Section 9.12 hereof) of the Company, any creation or
other incurrence by Creative Vistas of any lien on any material asset; (vi) the
Company has not made any loan, advance or capital contributions to or investment
in any Person (as defined in Section 9.12 hereof); (vii) the Company has not
entered into any transaction or commitment made, or any contract or agreement
entered into, by Creative Vistas relating to its business or assets (including
the acquisition or disposition of any assets) or any relinquishment by Creative
Vistas of any contract or other right; (viii) the Company has not granted any
severance or termination pay to any current or former director, officer or
employee of Creative Vistas, or increased the benefits payable under any
existing severance or termination pay policies or employment agreements or
entered into any employment, deferred compensation or other similar agreement
(or any amendment to any such existing agreement) with any current or former
director, officer or employee of Creative Vistas; (ix) the Company has not
established, adopted or amended (except as required by applicable law) any
collective bargaining, bonus, profit sharing, thrift, pension, retirement,
deferred compensation, compensation, stock option, restricted stock or other
benefit plan or arrangement covering any current or former director, officer or
employee of Creative Vistas; (x) the Company has not increased the compensation,
bonus or other benefits payable or otherwise made available to any current or
former director, officer or employee of Creative Vistas; (xi) the Company has
not made any tax election or any settlement or compromise of any tax liability,
in either case that is material to Creative Vistas; and (xii) the Company has
not entered into any transaction by the Company not in the ordinary course of
business other than with respect to this Agreement.
Section 3.7 No Adverse Changes. Except as set forth on Schedule 3.7
attached hereto, there has not been, and on the Closing Date there will not have
been, any material change in the financial condition of Creative Vistas from
that set forth in the Creative Vistas Financial Statements included in its most
recently filed periodic report except for: (i) transactions in the ordinary
course of business; (ii) transactions relating to this Agreement; and (iii) the
incurring of expenses and liabilities relating to this Agreement and the
consummation of the transactions contemplated hereby.
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Section 3.8 Liabilities. Except as set forth on Schedule 3.8 attached
hereto, there are, and on the Closing Date will be, no liabilities (including,
but not limited to, tax liabilities) or claims against Creative Vistas (whether
such liabilities or claims are contingent or absolute, direct or indirect,
accrued or unaccrued and matured or unmatured) not appearing on the Creative
Vistas Financial Statements included in Creative Vistas' most recently filed
periodic report, except for liabilities for expenses incurred relating to this
Agreement and the consummation of the transactions contemplated hereby.
Section 3.9 Taxes. (a) Creative Vistas has (i) duly filed with the
appropriate taxing authorities all tax returns required to be filed by or with
respect to its business, or are properly on extension and all such duly filed
tax returns are true, correct and complete in all material respects, and (ii)
paid in full or made adequate provisions for on its balance sheet (in accordance
with GAAP) all Taxes (as defined in Section 9.12 hereof) shown to be due on such
tax returns. There are no liens for Taxes upon the assets of Creative Vistas
except for statutory liens for current Taxes not yet due and payable or which
may thereafter be paid without penalty or are being contested in good faith.
Creative Vistas has not received any notice of audit, is not undergoing any
audit of its tax returns, or has received any notice of deficiency or assessment
from any taxing authority with respect to liability for Taxes of its business
which has not been fully paid or finally settled. There have been no waivers of
statutes of limitations by Creative Vistas with respect to any tax returns.
Creative Vistas has not filed a request with the Internal Revenue Service for
changes in accounting methods within the last three years which change would
affect the accounting for tax purposes, directly or indirectly, of its business.
Creative Vistas has not executed an extension or waiver of any statute of
limitations on the assessment or collection of any Taxes due (excluding such
statutes that relate to years currently under examination by the Internal
Revenue Service or other applicable taxing authorities) that is currently in
effect.
Section 3.10 Assets. Creative Vistas has, and on the Closing Date will
have, no fixtures, furniture, equipment, inventory, accounts receivable or other
assets.
Section 3.11 Contracts. Except as set forth on Schedule 3.11 attached
hereto, and other than with respect to this Agreement, Creative Vistas has, and
on the Closing Date will have, no contracts, written or oral, to which it is, or
on the Closing Date will be, a party.
Section 3.12 No Conflicts. The execution and delivery by Creative
Vistas of this Agreement, the consummation and performance of the transactions
herein contemplated and compliance with the terms of this Agreement by Creative
Vistas will not conflict with, result in a breach of or constitute a default
under: (i) any indenture, mortgage, deed of trust or other agreement, instrument
or contract to which Creative Vistas is now a party or by which it or any of its
assets or properties is bound; (ii) the Articles of Incorporation or the Bylaws
of Creative Vistas, in each case as amended; or (iii) any law, order, rule,
regulation, writ, injunction, judgment or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over Creative
Vistas or any of their respective business or properties.
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Section 3.13 Legal Proceedings. There are, and on the Closing Date
there will be, no legal, administrative, arbitral or other proceedings, claims,
actions or governmental investigations of any nature pending or to Creative
Vistas' knowledge threatened, against Creative Vistas, including, but not
limited to any shareholder claims or derivative actions, or challenging the
validity or propriety of the transactions contemplated by this Agreement, and,
to Creative Vistas' best knowledge, there is no reasonable basis for any
proceeding, claim, action or governmental investigation against Creative Vistas.
Creative Vistas is not, to its knowledge, a party to any order, judgment or
decree which will, or might reasonably be expected to, adversely affect the
business, operations, properties, assets or financial condition of Creative
Vistas.
Section 3.14 Certain Transactions. Except as set forth on Schedule
3.14, there have been, and from the date hereof to the Closing Date, there will
be: (i) no salaried or otherwise compensated employees and no bonuses paid to
any officer or director of Creative Vistas; (ii) no loans made to or
transactions with any officer or director of Creative Vistas; (iii) no dividends
or other distributions declared or paid by Creative Vistas; and (iv) no purchase
by Creative Vistas, or, to the knowledge of the Company, any third party, of any
of the Common Stock (other than any open market transactions).
Section 3.15 Issuances of Securities. As of the date hereof, Creative
Vistas is not committed to issue, and from the date hereof to the Closing Date
will not issue or commit itself to issue, any shares of their respective capital
stock or any options, rights, warrants, or other securities convertible into
shares of its capital stock.
Section 3.16 Intellectual Property. Creative Vistas has no patents,
patent applications, trademarks, trademark registrations, trade names,
copyrights, copyright registrations or applications therefor or other
intellectual property. Creative Vistas has no knowledge of any infringements by
Creative Vistas of any third party's intellectual property.
Section 3.17 Compliance with Laws. Creative Vistas has, and on the
Closing Date will have, in all material respects, operated its business and
conducted its affairs in compliance with all applicable laws, rules and
regulations, except where the failure to so comply did not have and would not be
expected to have a Material Adverse Effect on its business or property. To the
best of its knowledge, Creative Vistas is not in violation of any federal, state
or local law or regulation.
Section 3.18 Related Party Transactions. Except as set forth on
Schedule 3.18 attached hereto, on the Closing Date, there will be no loans,
leases, commitments, arrangements or other contracts of any kind or nature
outstanding between (i) Creative Vistas and (ii) any officer, shareholder or
director of Creative Vistas or any person related to or affiliated with any
officer, shareholder or director of Creative Vistas, other than with respect to
this Agreement.
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Section 3.19 Employee Benefit Plans. Creative Vistas has no pension
plan, profit sharing or similar employee benefit plan. Except as set forth in
its filings with the Commission, Creative Vistas has no employees.
Section 3.20 Consents. Except for the consent and approval of the Board
of Directors of Creative Vistas of this Agreement, no consents or approvals of,
or filings or registrations with, any third party or any public body or
authority are necessary in connection with the execution and delivery by
Creative Vistas of this Agreement and the consummation of transactions
contemplated hereby. Creative has, and on the Closing Date will have, full power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby.
Section 3.21 Finder's Fees. No brokerage or finder's fees or
commissions are or will be payable by the Company to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by this Agreement, and the
Company has not taken any action that would cause any AC Stockholder to be
liable for any such fees or commissions. The Company agrees that the AC
Stockholders shall have no obligation with respect to any fees or with respect
to any claims made by or on behalf of any Person for fees of the type
contemplated by this Section with the transactions contemplated by this
Agreement.
Section 3.22 Disclosure. The Company confirms that neither it nor any
other Person acting on its behalf has provided any of the AC Technical
Stockholders or its agents or counsel with any information that constitutes or
might constitute material, nonpublic information. The Company understands and
confirms that the AC Technical Stockholders will rely on the foregoing
representations in effecting transactions in securities of the Company. All
disclosure provided to the AC Technical Stockholders regarding the Company, its
business and the transactions contemplated hereby, including the any schedules
to this Agreement, furnished by or on behalf of the Company with respect to the
representations and warranties made herein are, to the knowledge of the Company,
true and correct with respect to such representations and warranties and, to the
knowledge of the Company, do not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not
misleading. The Company acknowledges and agrees that the AC Technical
Stockholders have not made, nor are the AC Technical Stockholders making any
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth herein.
Section 3.23 Registration. The Common Stock is, and at the Closing Date
will be, validly registered pursuant to Section 12(g) of the Securities Exchange
Act of 1934, as amended.
Section 3.24 Internal Accounting Controls; Xxxxxxxx-Xxxxx Act of 2002.
The Company is in compliance with the requirements of the Xxxxxxxx-Xxxxx Act of
2002 applicable to it as of the date hereof. The Company maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance
with management's general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The
Company has established disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such
disclosures controls and procedures to ensure that material information relating
to the Company, is made known to the certifying officers by others within those
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entities, particularly during the period in which the Company's Form 10-KSB or
10-QSB, as the case may be, is being prepared. The Company's certifying officers
have evaluated the effectiveness of the Company's controls and procedures as of
the date of its most recently filed periodic report (such date, the "Evaluation
Date"). The Company presented in its most recently filed periodic report the
conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date.
Since the Evaluation Date, there have been no significant changes in the
Company's internal controls (as such term is defined in Item 307(b) of
Regulation S-K under the Exchange Act) or, to the Company's knowledge, in other
factors that could significantly affect the Company's internal controls.
Section 3.25 Trading With the Enemy Act; Patriot Act. To the knowledge
of the Company, no sale of the Company's securities by the Company nor the
Company's use of the proceeds from such sale has violated the Trading with the
Enemy Act, as amended, or any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or
any enabling legislation or executive order relating thereto. Without limiting
the foregoing, the Company (a) is not a person whose property or interests in
property are blocked pursuant to Section 1 of Executive Order 13224 of September
23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) and (b) to
its knowledge, does not engage in any dealings or transactions, or be otherwise
associated, with any such person. The Company is in compliance with the USA
Patriot Act of 2001 (signed into law October 26, 2001).
Section 3.26 Registration Rights. No Person has any right to cause the
Company to effect the registration under the Securities Act of any securities of
the Company.
Section 3.27 Charter Documents. The charter documents of the Company
have not been altered since its incorporation, except as filed in the record
books of the Company and delivered to the AC Technical Stockholders.
Section 3.28. Corporate Minute Books. The corporate minute books of the
Company are complete and the minutes and consents contained therein accurately
reflect the actions that were taken at a duly called and held meeting or by
consent without a meeting. All actions by the Company which required director or
shareholder approval are reflected on the corporate minute books of the Company.
The Company is not in violation or breach of, or in default with respect to, any
term of its Articles of Incorporation or by-laws.
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ARTICLE 4
Representations of the AC Technical Stockholders and AC Technical
The AC Technical Stockholders and AC Technical each represent and
warrant to the Company, each only as to itself, as follows:
Section 4.1 Execution and Delivery; No Violations. The execution,
delivery and performance by the AC Technical Stockholders and AC Technical of
this Agreement are within the AC Technical Stockholders' and AC Technical's
powers and do not violate any charter or bylaw, any contractual restriction
contained in any agreement, or any order, judgment, decree, law or regulation,
which binds or affects or purports to bind or affect the AC Technical
Stockholders or AC Technical.
Section 4.2 Binding Effect. This Agreement, when executed and delivered
by the AC Technical Stockholders and AC Technical shall be irrevocable and will
constitute the legal, valid and binding obligations of the AC Technical
Stockholders and AC Technical enforceable against each of them in accordance
with its terms, except as may be limited by applicable bankruptcy, insolvency,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally.
Section 4.3 Title to Shares. The AC Technical Stockholders, and each of
them, are the owners, free and clear of all security interests, liens,
encumbrances, equities and other charges, of the number of Shares which are
listed on the attached Annex A and which they have contracted to sell.
Section 4.4 Legal Proceedings. There are, and on the Closing Date there
will be, no legal, administrative, arbitral or other proceedings, claims,
actions or governmental investigations of any nature pending or to the knowledge
of the AC Technical Stockholders and AC Technical threatened, against AC
Technical, including, but not limited to, any shareholder claims or derivative
actions, or challenging the validity or propriety of the transactions
contemplated by this Agreement, and, to the best knowledge of the AC Technical
Stockholders and AC Technical, there is no reasonable basis for any proceeding,
claim, action or governmental investigation against AC Technical. AC Technical
is not, to the knowledge of the AC Technical Stockholders or AC Technical, a
party to any order, judgment or decree which will, or might reasonably be
expected to, adversely affect the business, operations, properties, assets or
financial condition of AC Technical.
ARTICLE 5
Covenants of the Company
Section 5.1 Listing of Common Stock. The Company shall use its best
efforts to cause the Common Stock of Creative Vistas to continue to be approved
for listing on the OTC Bulletin Board prior to the Closing.
ARTICLE 6
Covenants of the Parties
The Parties agree that:
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Section 6.1 Public Announcements. The Company, Canco, the AC Technical
Stockholders and AC Technical shall consult with each other before issuing any
press release or making any public statement with respect to this Agreement or
the transactions contemplated hereby and, except as may be required by
applicable law, will not issue any such press release or make any such public
statement prior to such consultation and without the consent of the other
Parties.
Section 6.2 Notices of Certain Events. In addition to any other notice
required to be given by the terms of this Agreement, each of the Parties shall
promptly notify the other Parties of:
(a) any notice or other communication from any Person alleging
that the consent of such Person is or may be required in connection with any of
the transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge threatened against, relating to or involving or
otherwise affecting such party or that relate to the consummation of the
transactions contemplated by this Agreement.
Section 6.3 Access to Information. Following the date hereof, until
consummation of all transactions contemplated hereby, the Company will give to
the AC Technical Stockholders, their counsel, financial advisers, auditors and
other authorized representatives reasonable access to the offices, properties,
books and records, financial and other data and information of the Company as
the AC Technical Stockholders and their representatives may reasonably request.
ARTICLE 7
Conditions Precedent
Section 7.1 Conditions of Obligations of the AC Technical Stockholders.
The obligations of the AC Technical Stockholders pursuant to this Agreement are
subject to the satisfaction of the following conditions, any or all of which may
be waived in whole or in part by the AC Technical Stockholders:
(a) Representations and Warranties. Each of the
representations and warranties of the Company set forth in this Agreement shall
be true and correct in all material respects as of the date of this Agreement
and (except to the extent such representations and warranties speak as of an
earlier date) as of the Closing Date as though made on and as of the Closing
Date;
(b) Secretary's Certificate. The Secretary of Creative Vistas
shall deliver to the AC Technical Stockholders at the Closing a certificate
certifying: (i) that attached thereto is a true and complete copy of Creative
Vistas' Articles of Incorporation, as amended, as in effect at the Closing; and
(ii) that attached thereto is a true and complete copy of Creative Vistas'
By-laws as in effect at the Closing;
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(c) Good Standing Certificates. The Company shall have
furnished the AC Technical Stockholders with a good standing and existence
certificate for Creative Vistas in its jurisdiction of incorporation and any
jurisdictions in which it is qualified to do business as the AC Technical
Stockholders may reasonably request;
(d) Certified List of Record Holders. The AC Technical
Stockholders shall have received a current certified list from the Creative
Vistas' transfer agent of the holders of record of Creative Vistas' Common
Stock;
(e) Board of Directors Resolutions. The AC Technical
Stockholders shall have received resolutions of the Board of Directors of
Creative Vistas approving the transactions contemplated herein; and
(f) Legal Opinion. The AC Technical Stockholders shall have
received a legal opinion from counsel to the Company in form and substance
reasonably satisfactory to it.
(g) Cancellation of Indebtedness. AC Technical Stockholders
shall have received evidence of the cancellation or forgiveness of all
promissory notes in favor of Xxxxxx Capital Corporation and Tudor Investments,
as set forth on the schedules hereto.
Section 7.2 Conditions of Obligations of the Company. The obligations
of the Company pursuant to this Agreement are subject to the satisfaction of the
following condition, which may be waived in whole or in part by Company:
(a) Each of the representations and warranties of the AC
Technical Stockholders set forth in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and (except to the extent
such representations and warranties speak as of an earlier date) as of the
Closing Date as though made on and as of the Closing Date;
(b) Secretary's Certificate. The Secretary of AC Technical
shall deliver to the Company at the Closing a certificate certifying: (i) that
attached thereto is a true and complete copy of AC Technical's Articles of
Incorporation, as amended, as in effect at the Closing; and (ii) that attached
thereto is a true and complete copy of AC Technical's By-laws as in effect at
the Closing;
(c) Good Standing Certificates. AC Technical shall have
furnished the Company with a good standing and existence certificate for AC
Technical in its jurisdiction of incorporation and any jurisdictions in which it
is qualified to do business as the Company may reasonably request;
(d) List of Record Holders. The Company shall have received a
current list from the Secretary of AC Technical of the holders of record of AC
Technical's capital stock;
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(e) Board of Directors Resolutions. The Company shall have
received resolutions of the Board of Directors of AC Technical approving the
transactions contemplated herein;
(f) Canco shall have received from AC Technical the stock
certificates representing the Shares in accordance with Section 2.2 hereof.
ARTICLE 8
Termination
Section 8.1 Termination. This Agreement may be terminated and the sale
of Shares may be abandoned at any time prior to the Closing:
(a) by mutual written consent of the parties hereto;
(b) by either the Company or the AC Technical Stockholders if
the Closing shall not have occurred on or before September 29, 2004 (unless the
failure to consummate the transactions by such date shall be due to the action
or failure to act of the party seeking to terminate this Agreement);
(c) by the AC Technical Stockholders if: (i) the Company shall
have failed to comply in any material respect with any of the covenants or
agreements contained in this Agreement to be complied with or performed by the
Company; or (ii) any representations and warranties of the Company contained in
this Agreement shall not have been true when made or on and as of the Closing
Date as if made on and as of Closing Date (except to the extent it relates to a
particular date.
(d) by the Company if: (i) the AC Technical Stockholders, AC
Technical or Canco shall have failed to comply in any material respect with any
of the covenants or agreements contained in this Agreement to be complied with
or performed by them; or (ii) any representations and warranties of the AC
Technical Stockholders or AC Technical contained in this Agreement shall not
have been true when made or on and as of the Closing Date.
Section 8.2 Effect of Termination. In the event of the termination of
this Agreement pursuant to this Article 8, all further obligations of the
parties under this Agreement shall forthwith be terminated without any further
liability of any party hereto to the other parties hereto. Nothing contained in
this Section 8.2 shall relieve any party from liability for any breach of this
Agreement.
ARTICLE 9
Miscellaneous
Section 9.1 Notices. All notices, requests and other communications to
any party hereunder shall be in writing and either delivered personally,
telecopied or sent by certified or registered mail, postage prepaid:
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If to the Company: c/x Xxxxxx Capital Corporation
0000 Xxxx XxXxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxx
With a copy to: Squire, Xxxxxxx & Xxxxxxx L.L.P.
Two Renaissance Square
Suite 2700
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxxxxxx X. Xxxxxxx
If to Canco: A.C. Technical Acquisition
0000 Xxxxxx Xxxxxx, Xxxxx 0-00
Xxxxxx, Xxxxxxx X0X 0X0
Attn: Xxxxx Xxxxxxxxxx
With a copy to: Xxxxxxxx Xxxxx Sosnovitch L.L.P.
Xxx Xxxxxxx Xxxxxx
Xxxxx 000
X.X. Xxx 00
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Xxxxx Xxxx
If to the AC Technical Stockholders: As set forth on Annex A hereto.
With a copy to: Xxxxxxx Xxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx
or such other address or fax number as such party may hereafter specify for the
purpose by notice to the other parties hereto. All such notices, requests and
other communications shall be deemed received on the date delivered personally,
telecopied or, if mailed, five business days after the date of mailing if
received prior to 5 p.m. in the place of receipt and such day is a business day
in the place of receipt. Otherwise, any such notice, request or communication
shall be deemed not to have been received until the next succeeding business day
in the place of receipt.
Section 9.2 Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed, in the
case of an amendment, by the Company, the AC Technical Stockholders and AC
Technical or in the case of a waiver, by the party against whom the waiver is to
be effective.
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(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 9.3 Fees and Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
Section 9.4 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto, but any such transfer or
assignment will not relieve the appropriate party of its obligations hereunder.
Section 9.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the principles of conflicts of law thereof.
Section 9.6 Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in
any federal or state court located in the City of New York, Borough of
Manhattan, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 9.1. shall be deemed
effective service of process on such party.
Section 9.7 Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto. No provision of
this Agreement is intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder.
Section 9.8 Entire Agreement. This Agreement and any Annexes, Schedules
and Exhibits hereto constitute the entire agreement between the parties with
respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter hereof.
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Section 9.9 Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
Section 9.10 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any parties. Upon
such a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
Section 9.11 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof in addition to any other
remedy to which they are entitled at law or in equity.
Section 9.12 Definition and Usage.
For purposes of this Agreement:
"Affiliate" means, with respect to any Person, any other
Person, or indirectly controlling, controlled by, or under common control with
such Person.
"Material Adverse Effect" means any effect or change that is
or would be materially adverse to the business, operations, assets, prospects,
condition (financial or otherwise) or results of operations of an entity and any
of its Subsidiaries, taken as a whole.
"Person" means an individual, corporation, partnership,
limited liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Subsidiary" means, with respect to any Person, any entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at any time directly or indirectly owned by such Person.
"Taxes" means any and all federal, state, local, foreign or
other taxes of any kind (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect thereto) imposed by
any taxing authority, including, without limitation, taxes or other charges on
or with respect to income, franchises, windfall or other profits, gross
receipts, sales, use, capital stock, payroll, employment, social security,
workers' compensation, unemployment compensation, or net worth, and taxes or
other charges in the nature of excise, withholding, ad valorem or value added.
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Section 9.13 Survival. The representations and warranties herein shall
survive the Closing and delivery of the Shares.
Section 9.14 Further Assurances. From time to time, each party hereto
will execute such additional instruments and take such actions as may be
reasonably required to carry out the intent and purposes of this Agreement.
Section 9.15 Review of Agreement. Each party hereto acknowledges that
it has had time to review this Agreement and, as desired, consult with counsel.
In the interpretation of this Agreement, no adverse presumption shall be made
against any party on the basis that it has prepared, or participated in the
preparation of, this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the following individuals has caused this
Agreement to be signed, and each party that is not an individual has caused this
Agreement to be duly executed under seal by its respective authorized officers,
all as of the day and year first above written.
AC TECHNICAL STOCKHOLDERS:
The NavaratnamTrust
Per:
-------------------------------
Xxxxx Xxxxxxxxxx
The Xxxxx Trust
Per:
--------------------------------
Xxxxxxx Xxxxx
AC TECHNICAL SYSTEMS, LTD.
By:
--------------------------------
Name:
Title:
A.C. TECHNICAL ACQUISITION CORP.
By:
--------------------------------
Name:
Title:
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CREATIVE VISTAS, INC.
By:
--------------------------------
Name:
Title:
Annex A
SHAREHOLDERS OF AC TECHNICAL SYSTEMS, LTD.
Number of Shares Principal Amount of
AC Technical Stockholder: Owned and to be Surrendered: Promissory Note:
------------------------- ---------------------------- ----------------
The Xxxxx Trust 5,000,000 $1,650,000
0 Xxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxxx, X0X 0X0 Xxxxxx
The Navaratnam Trust 5,000,000 $1,650,000
000-000 Xxxx Xxxxx Xxxxxxx,
Xxxxxxx
X0X 0X0, Xxxxxx
TOTAL: 10,000,000 $3,300,000
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Exhibit A
FORM OF PROMISSORY NOTE
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Schedule 3.6(b)
MATERIAL CHANGES
1. On September 27, 2004, the shareholders of the Company approved at a
special meeting of shareholders an amendment to the Articles of
Incorporation of Creative Vistas to eliminate preemptive rights of holders
of the Company's common stock.
2. During the quarter ended September 30, 2004, Xxxxxx Capital Corporation and
Tudor Investments LTD Profit Sharing Plan, which are the principal
shareholders of Creative Vistas and which funded all the costs and expenses
associated with maintaining the Company, will forgive certain non-interest
bearing promissory notes issued by the Company to such shareholders in the
principal amount of $28,350.
3. During the quarter ended September 30, 2004, the remaining assets of
Creative Vistas in the form of cash will be used to pay legal expenses
incurred in connection with this Agreement.
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Schedule 3.7
ADVERSE CHANGES
1. During the quarter ended September 30, 2004, Xxxxxx Capital Corporation and
Tudor Investments LTD Profit Sharing Plan, which are the principal
shareholders of Creative Vistas and which funded all the costs and expenses
associated with maintaining the Company, will forgive certain non-interest
bearing promissory notes issued by the Company to such shareholders in the
principal amount of $28,350.
2. During the quarter ended September 30, 2004, the remaining assets of
Creative Vistas in the form of cash will be used to pay legal expenses
incurred in connection with this Agreement.
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Schedule 3.8
LIABILITIES
1. During the quarter ended September 30, 2004, Xxxxxx Capital Corporation and
Tudor Investments LTD Profit Sharing Plan, which are the principal
shareholders of Creative Vistas and which funded all the costs and expenses
associated with maintaining the Company, will forgive certain non-interest
bearing promissory notes issued by the Company to such shareholders in the
principal amount of $28,350.
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Schedule 3.11
CONTRACTS
1. During the quarter ended September 30, 2004, Xxxxxx Capital Corporation and
Tudor Investments LTD Profit Sharing Plan, which are the principal
shareholders of Creative Vistas and which funded all the costs and expenses
associated with maintaining the Company, will forgive certain non-interest
bearing promissory notes issued by the Company to such shareholders in the
principal amount of $28,350.
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Schedule 3.18
RELATED PARTY TRANSACTIONS
1. During the quarter ended September 30, 2004, Xxxxxx Capital Corporation and
Tudor Investments LTD Profit Sharing Plan, which are the principal
shareholders of Creative Vistas and which funded all the costs and expenses
associated with maintaining the Company, will forgive certain non-interest
bearing promissory notes issued by the Company to such shareholders in the
principal amount of $28,350.
2. During the quarter ended September 30, 2004, the remaining assets of
Creative Vistas in the form of cash will be used to pay legal expenses
incurred in connection with this Agreement.
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