ACQUISITION AND EXCHANGE AGREEMENT Between PAIVIS, CORP. and AAAA MEDIA SERVICES, LTD. Dated: October 4, 2007
Between
PAIVIS,
CORP.
and
AAAA
MEDIA SERVICES, LTD.
Dated:
October 4, 2007
TABLE
OF CONTENTS
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ARTICLE
I REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF AAAA Media Services, Ltd.
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1.01 Organization
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1
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1.02 Capitalization
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1
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1.03 Financial
Statements
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2
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|
1.04 Information
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2
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1.05 Options
and Warrants
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2
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1.06 Absence
of Certain Changes or Events
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2
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1.07 Litigation
and Proceedings
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2
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1.08 Contracts
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3
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1.09 Material
Contract Defaults
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3
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1.10 No
Conflict With Other Instruments
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3
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1.11 Governmental
Authorizations
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3
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1.12 Compliance
With Laws and Regulations
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3
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1.13 Approval
of Agreement
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3
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1.14 Material
Transactions or Affiliations
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3
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1.15 AAAA
Media Services, Ltd. Schedules
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4
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1.16 Payroll
Taxes and Corporate Taxes
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4
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1.17 Valid
Obligation
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4
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ARTICLE
II REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF PAIVIS CORP.
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2.01 Organization
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4
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2.02 Capitalization
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4
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2.03 Subsidiaries
and Predecessor Corporations
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4
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2.04 Securities
Filings; Financial Statement
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5
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2.05 Filing:
Books and Records
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5
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2.06 Information
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5
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2.07 Options
and Warrants
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5
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2.08 Absence
of Certain Changes or Events
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5
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2.09 Litigation
and Proceedings
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6
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2.10 Contracts
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6
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2.11 Material
Contract Defaults
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7
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2.12 No
Conflict With Other Instruments
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7
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2.13 Governmental
Authorizations
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7
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2.14 Compliance
With Laws and Regulations
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7
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2.15 Material
Transactions or Affiliations
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7
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2.16 Approval
of Agreement
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7
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2.17 Continuity
of Business Enterprises
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7
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2.18 PAIVIS
CORP. Schedules
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8
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2.19 Bank
Account; Power of Attorney
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8
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2.20 Valid
Obligation
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8
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ARTICLE
III PLAN
OF EXCHANGE
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3.01 The
Purchase and Exchange
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9
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3.02 Federal
Exercise Tax Refund
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10
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3.03 Working
Capital Financing
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10
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3.04 Employment
Agreement
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10
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3.05 Closing
Date and Place
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10
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3.06 Changes
and Interim Operations
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10
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3.07 Closing
Events
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11
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3.08 Current
Employees
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11
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3.09 Business
Planning
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11
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3.10 Termination
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11
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ARTICLE
IV SPECIAL
COVENANTS
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4.01 Access
to Properties and Records
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11
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4.02 Delivery
of Books and Records
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12
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4.03 Third
Party Consents and Certificates
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12
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4.04 Consent
of AAAA Media Services, Ltd. .
Shareholders
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12
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4.05 Name
Change
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12
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4.06 PAIVIS
Corporation Shareholder Meeting
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12
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4.07 Actions
Prior to Closing
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12
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4.08 Sales
Under Rule 144 or 145, If Applicable
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12--
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4.09 Indemnification
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12--
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ARTICLE
V CONDITIONS
PRECEDENT TO OBLIGATIONS OF PAIVIS CORPORATION.
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5.01 Accuracy
of Representations and Performance of Covenants
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13
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5.02 Officer's
Certificates
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13
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5.03 No
Material Adverse Change
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13
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5.04 Approval
by Shareholders
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13
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5.05 No
Governmental Prohibitions
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13
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5.06 Consents
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13
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5.07 Delivery
of Audited Financial Statements
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13
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5.08 Other
Items
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13
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ARTICLE
VI CONDITIONS
PRECEDENT TO OBLIGATIONS OF AAAA Media Services, Ltd.
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6.01 Accuracy
of Representations and Performance of Covenants
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14
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6.02 Officer's
Certificate
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14
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6.03 No
Governmental Prohibition
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14
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6.04 Consents
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14
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6.05 Delivery
of Initial Shares and Cash Payment
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14
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6.06 Delivery
of Working Capital Financing
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14
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6.05 Execution
of Employment Agreement
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14
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6.08 Other
Items
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14
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ARTICLE
VII MISCELLANEOUS
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7.01 Brokers
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15
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7.02 Governing
Law
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15
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7.03 Notices
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15
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7.04 Attorney's
Fees
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15
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7.05 Confidentiality
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15
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7.06 Public
Announcements and Filings
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16
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7.07 Schedules;
Knowledge
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16
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7.08 Third
Party Beneficiaries
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16
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7.09 Expenses
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16
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7.10 Entire
Agreement
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16
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7.11 Survival;
Termination
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16
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7.12 Counterparts
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16
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7.13 Amendment
or Waiver
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16
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7.14 Best
Efforts
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16
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THIS
ACQUSITION AND EXCHANGE AGREEMENT (hereinafter referred to as this
"Agreement") is entered into as of this 4th day of
October 2007, by and between PAIVIS CORP. a Nevada
corporation (hereinafter referred to as “PAIVIS”) and AAAA Media Services, Ltd.
., a Georgia corporation and its subsidiaries (hereinafter referred to as "A4”),
(collectively the two companies are hereinafter referred to as the “Parties”)
upon the following premises:
Premises
WHEREAS,
PAIVIS , is a publicly held corporation organized under the laws of the State
of
Nevada;
WHEREAS,
A4 is a privately-held corporation organized under the laws of
Georgia;
WHEREAS,
management of the constituent corporations have determined that it is in the
best interest of the parties that PAIVIS acquire 100% of the issued and
outstanding securities of A4 in exchange for the issuance of certain shares
of
PAIVIS and cash (the "Purchase and Exchange") and A4 agreed to use
its best efforts to cause its shareholders (the "A4 Shareholders") to exchange
their securities of A4 on the terms described herein; and
WHEREAS,
the Parties desire to set forth the terms of the Purchase and Exchange, which
is
intended to constitute a tax-free reorganization pursuant to the provisions
of
Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as
amended.
NOW
THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits
to
the Parties to be derived here from, it is hereby agreed as
follows:
Agreement
ARTICLE
I
REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF A4
As
an
inducement to, and to obtain the reliance of PAIVIS except as set forth on
the
A4 Schedules (as hereinafter defined), A4 represents and warrants as
follows:
Section
1.01 Organization. A4 is
a corporation duly organized, validly existing, and in good standing under
the
laws of Georgia and has the corporate power and is duly authorized, qualified,
franchised, and licensed under all applicable laws, regulations, ordinances,
and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted,
including qualification to do business as a foreign corporation in the states
or
countries in which the character and location of the assets owned
by it or the nature of the business transacted by it requires
qualification, except where failure to be so qualified would not have a material
adverse effect on its business. Included in the A4 Schedules are
complete and correct copies of the articles of incorporation, and the bylaws
of
A4 as in effect on the date hereof. The execution and delivery of
this Agreement does not, and the consummation of the transactions contemplated
hereby will not, violate any provision of A4’s articles of incorporation or
bylaws. A4 has taken all actions required by law, its articles of
incorporation, or otherwise to authorize the execution and delivery of this
Agreement. A4 has full power, authority, and legal right and has
taken all action required by law, its articles of incorporation, and otherwise
to consummate the transactions herein contemplated.
Section
1.02 Capitalization. All
issued and outstanding shares of A4 are legally issued,
fully paid, and non-assessable and not issued in violation of the preemptive
or
other rights of any person.
-1-
Section
1.03 Financial
Statements.
(a) Included
in the A4 Schedules are the balance sheet and the related statements of
operations of A4 as of December 31, 2005, December 31,2006 and the unaudited
financial statements as of September 30, 2007.;
(b) All
such financial statements have been prepared in accordance with generally
accepted accounting principles. The A4 balance sheet presents a true
and fair view as of the date of such balance sheet of the financial condition
of
A4. A4 did not have, as of the dates of such balance sheets, except
as and to the extent reflected or reserved against therein, any liabilities
or
obligations (absolute or contingent) which should be reflected in the balance
sheets or the notes thereto, prepared in accordance with generally accepted
accounting principles, and all assets reflected therein are properly reported
and present fairly the value of the assets of A4 in accordance with generally
accepted accounting principles.
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(c)
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A4
has no liabilities with respect to the payment of any federal, state,
county, local
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or
other
taxes (including any deficiencies, interest or penalties), except for taxes
accrued but not yet due and payable.
(d) A4
has filed all state, federal or local income and/or franchise tax returns
required to be filed by it from inception to the date hereof. Each of
such income tax returns reflects the taxes due for the period covered thereby,
except for amounts which, in the aggregate, are immaterial.
(e) The
books and records, financial and otherwise, of A4 are in all material respects
complete and correct and have been maintained in accordance with good business
and accounting practices.
(f) All
of A4’s assets are reflected on its financial statements, and, except as set
forth in the A4 Schedules or the financial statements of A4 or the notes
thereto, A4 has no material liabilities, direct or indirect, matured or
unmatured, contingent or otherwise.
Section
1.04 Information. The
information concerning A4 set forth in this Agreement and in the
A4 Schedules which are to be incorporated herein as of the date of
above written or no later than Closing is complete and accurate in all material
respects and does not contain any untrue statement of a material fact or omit
to
state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading. In
addition, A4 has fully disclosed in writing to PAIVIS (through this Agreement
or
the A4 Schedules) all information relating to matters involving A4 or its assets
or its present or past operations or activities which (i) indicated or may
indicate, in the aggregate, the existence of a greater than $25,000 liability
or
diminution in value, (ii) have led or may lead to a competitive disadvantage
on
the part of A4 or (iii) either alone or in aggregation with other information
covered by this Section, otherwise have led or may lead to a material adverse
effect on the transactions contemplated herein or on A4, its assets, or its
operations or activities as presently conducted or as contemplated to be
conducted after the Closing , including, but not limited to, information
relating to governmental, employee, environmental, litigation and securities
matters and transactions with affiliates.
Section
1.05 Options
or Warrants. There ere are no existing options, warrants, calls, or
commitments of any character relating to the authorized and unissued A4 common
stock.
Section
1.06 Absence
of Certain Changes or Events. Except as set forth in this
Agreement or the A4 Schedules, since December 31, 2006 there has been no
material change in the business and assets of A4 and to the best
knowledge of A4, A4 has not become subject to any law or regulation
which materially and adversely affects, or in the future may adversely affect
the business, operations, properties, assets, or condition of A4.
Section
1.07 Litigation
and Proceedings. There are no actions, suits, proceedings, or
investigations pending or, to the knowledge of A4 after reasonable
investigation, threatened by or against A4 or affecting A4 or its properties,
at
law or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any
kind. A4 does not have any knowledge of any material default on its
part with respect to any judgment, order, injunction, decree, award, rule,
or
regulation of any court, arbitrator, or governmental agency or instrumentality
or of any circumstances that, after reasonable investigation, would result
in
the discovery of such a default.
-2-
Section
1.08 Contracts.
(a) Except
as included or described in the A4 Schedules, there are no "material" contracts,
agreements, franchises, license agreements, debt instruments or other
commitments to which A4 is a party or by which it or any of its assets,
products, technology, or properties are bound other than those incurred in
the
ordinary course of business (as used in this Agreement, a "material" contract,
agreement, franchise, license agreement, debt instrument or commitment is one
which (i) will remain in effect for more than six (6) months after the date
of
this Agreement or (ii) involves aggregate obligations of at least twenty-five
thousand dollars ($25,000));
(b) All
contracts, agreements, franchises, license agreements, and other commitments
to
which A4 is a party or by which its properties are bound and which are material
to the operations of A4 taken as a whole are valid and enforceable by A4 in
all
respects, except as limited by bankruptcy and insolvency laws and by other
laws
affecting the rights of creditors generally;
(c) Except
as set forth in the A4 Schedules, A4 is not a party to or bound by, and the
properties of A4 are not subject to any contract, agreement, other commitment
or
instrument; any charter or other corporate restriction; or any judgment, order,
writ, injunction, decree, or award which materially and adversely affects,
the
business operations, properties, assets, or condition of A4; and
(d) Except
as included or described in the A4 Schedules or reflected in the most recent
A4
balance sheet, A4 is not a party to any oral or written (i) contract for the
employment of any officer or employee which is not terminable on 30 days, or
less notice; (ii) profit sharing, bonus, deferred compensation, stock option,
severance pay, pension benefit or retirement plan, (iii) agreement, contract,
or
indenture relating to the borrowing of money, (iv) guaranty of any obligation,
other than one on which A4 is a primary obligor, for the borrowing of money
or
otherwise, excluding endorsements made for collection and other guaranties
of
obligations which, in the aggregate do not exceed more than one year or
providing for payments in excess of $25,000 in the aggregate; (vi) collective
bargaining agreement; or (vii) agreement with any present or former officer
or
director of A4.
Section
1.09 Material
Contract Defaults. A4 is not in default in any material respect
under the terms of any outstanding contract, agreement, lease, or other
commitment which is material to the business, operations, properties, assets
or
condition of A4 and there is no event of default in any material respect under
any such contract, agreement, lease, or other commitment in respect of which
A4
has not taken adequate steps to prevent such a default from
occurring.
Section
1.10 No
Conflict With Other Instruments. The execution of this Agreement
and the consummation of the transactions contemplated by this Agreement will
not
result in the breach of any term or provision of, constitute an event of default
under, or terminate, accelerate or modify the terms of any material indenture,
mortgage, deed of trust, or other material contract, agreement, or instrument
to
which A4 is a party or to which any of its properties or operations are
subject.
Section
1.11 Governmental
Authorizations. Except as set forth in the A4 Schedules, A4 has
all licenses, franchises, permits, and other governmental authorizations that
are legally required to enable it to conduct its business in all material
respects as conducted on the date hereof. Except for compliance with
federal and state securities and corporation laws, as hereinafter provided,
no
authorization, approval, consent, or order of, or registration, declaration,
or
filing with, any court or other governmental body is required in connection
with
the execution and delivery by A4 of this Agreement and the consummation by
A4 of
the transactions contemplated hereby.
Section
1.12 Compliance
With Laws and Regulations. Except as set forth in the A4
Schedules, to the best of its knowledge A4 has complied with all applicable
statutes and regulations of any federal, state, or other governmental entity
or
agency thereof, except to the extent that noncompliance would not materially
and
adversely affect the business, operations, properties, assets, or condition
of
A4, or except to the extent that noncompliance would not result in the
occurrence of any material liability for A4.
Section
1.13 Approval
of Agreement. The board of directors of A4 has authorized the
execution and delivery of this Agreement by A4 and has approved this Agreement
and the transactions contemplated hereby, and will recommend to the A4
Shareholders that the Exchange be accepted by them.
Section
1.14 Material
Transactions or Affiliations. Set forth in the A4 Schedules is a
description of every contract, agreement, or arrangement between A4 and any
predecessor and any person who was at the time of such contract, agreement,
or
arrangement an officer, director, or person owning of record, or known by A4
to
own beneficially, 5% or more of the issued and outstanding common stock of
A4
and which is to be performed in whole or in part after the date hereof or which
was entered into not more than three years prior to the date
hereof. Except as disclosed in the A4 Schedules or otherwise
disclosed herein, no officer, director, or 5% shareholder of A4 has, or has
had
since inception of A4, any known interest, direct or indirect, in any
transaction with A4 which was material to the business of A4. There
are no commitments by A4, whether written or oral, to lend any funds, or to
borrow any money from, or enter into any other transaction with, any such
affiliated person.
-3-
Section
1.15 A4
Schedules. A4 has delivered or agrees to deliver to PAIVIS the
following schedules as of the date of above written or no later
than Closing, which are collectively referred to as the "A4 Schedules" and
which
consist of separate schedules dated as of the date of execution of this
Agreement or dated as of the date of Closing, all certified by the chief
executive officer of A4 as complete, true, and correct as of the date of this
Agreement in all material respects:
(a) a
schedule containing complete and correct copies of the articles of
incorporation, and bylaws of A4 in effect as of the date of this
Agreement;
(b) a
schedule containing the financial statements of A4 identified in paragraph
1.03(a);
(c) copies
of all licenses, permits, and other governmental authorizations (or requests
or
applications therefor) pursuant to which A4 carries on or proposes to carry
on
its business (except those which, in the aggregate, are immaterial to the
present or proposed business of A4);
(d) a
schedule setting forth any other information, together with any required copies
of documents, required to be disclosed in the A4 Schedules by Sections 1.01
through 1.14.
A4
shall
cause the A4 Schedules and the instruments and data delivered to PAIVIS,
hereunder to be promptly updated after the date hereof up to and including
the
Closing .
Section
1.16 Payroll
Taxes and Corporate Taxes. All of the payroll taxes and corporate
taxes owed
by
A4 up
to the date of Closing shall remain the responsibility of A4. The
parties acknowledge and agree that A4 has at all times prior to this date has
operated as a corporation under a Sub-S election for all federal tax
purposes.
Section
1.17 Valid
Obligation. This Agreement and all agreements and other documents
executed by A4 in connection herewith constitute the valid and binding
obligation of A4, enforceable in accordance with its or their terms, except
as
may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and subject to the
qualification that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefore may be
brought.
ARTICLE
II
REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF PAIVIS
As
an
inducement to, and to obtain the reliance of A4 and the A4 Shareholders, except
as set forth in the PAIVIS Schedules (as hereinafter defined), PAIVIS represents
and warrants as follows:
Section
2.01 Organization. PAIVIS
is a corporation duly organized, validly existing, and in good standing under
the laws of Nevada and has the corporate power and is duly
authorized, qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and orders of public authorities to own all of its
properties and assets, to carry on its business in all material respects as
it
is now being conducted, and except where failure to be so qualified would not
have a material adverse effect on its business, there is no jurisdiction in
which it is not qualified in which the character and location of the assets
owned by it or the nature of the business transacted by it requires
qualification. Included in the PAIVIS Schedules are complete and
correct copies of the articles of incorporation, and the bylaws as in effect
on
the date hereof. The execution and delivery of this Agreement does not, and
the
consummation of the transactions contemplated hereby will not, violate any
provision of PAIVIS’s articles of incorporation, and the
bylaws. PAIVIS has taken all action required by law, its
Articles of Incorporation, or otherwise to authorize the execution and delivery
of this Agreement, and PAIVIS has full power, authority, and legal right and
has
taken all action required by law, its Articles of Incorporation, or otherwise
to
consummate the transactions herein contemplated.
Section
2.02 Capitalization. As
of June 30,2007 Paivis’s authorized capitalization consists of a) 125,000,000
shares of common stock, $0.0002 par value of which approximately 41,000,000
shares are issued and outstanding and: b) 15,000,000 shares of preferred stock
of $0.0002 par value of which 250,000 shares of Series A Preferred and 3,000,750
shares of Series B Preferred are issued and outstanding as of June 30,
2007. All issued and outstanding shares are legally issued, fully
paid, and non-assessable and not issued in violation of the preemptive or other
rights of any person.
Section
2.03 Subsidiaries
and Predecessor Corporations. PAIVIS does not have any
predecessor corporation(s) or subsidiaries, and does not own, beneficially
or of
record, any shares of any other corporation, except as disclosed in Schedule
2.03. .
-4-
Section
2.04 Securities
Filings; Financial Statements.
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(a)
|
Included
in the PAIVIS Schedules is (i) an unaudited consolidated balance
sheet of
PAIVIS as of June 30,
2007.
|
(b) PAIVIS
has no liabilities with respect to the payment of any federal, state, county,
local or other taxes (including any deficiencies, interest or penalties), except
for taxes accrued but not yet due and payable.
(c) PAIVIS
has timely filed all state, federal or local income and/or franchise tax returns
required to be filed by it from inception to the date hereof except those
described in the PAIVIS Scedules. Each of such income tax returns
reflects the taxes due for the period covered thereby, except for amounts that,
in the aggregate, are immaterial.
(d) The
books and records, financial and otherwise, of PAIVIS are in all material
aspects complete and correct and have been maintained in accordance with good
business and accounting practices.
(e) All
of PAIVIS's assets are reflected on its financial statements, and, except as
set
forth in the PAIVIS Schedules or the financial statements of PAIVIS or the
notes
thereto, PAIVIS has no material liabilities, direct or indirect, matured or
unmatured, contingent or otherwise.
Section
2.05 Filings:
Books and Records. The books and records, financial and
otherwise, of PAIVIS are in all material aspects complete and correct and have
been maintained in accordance with good business and accounting
practices.
Section
2.06 Information. The
information concerning PAIVIS set forth in this Agreement and the PAIVIS
Schedules is complete and accurate in all material respects and does not contain
any untrue statements of a material fact or omit to state a material fact
required to make the statements made, in light of the circumstances under which
they were made, not misleading. In addition, PAIVIS has fully
disclosed in writing to A4 (through this Agreement or the PAIVIS Schedules)
all
information relating to matters involving PAIVIS or its assets or its present
or
past operations or activities which (i) indicated or may indicate, in the
aggregate, the existence of a greater than $25,000 liability or diminution
in
value, (ii) have led or may lead to a competitive disadvantage on the part
of
PAIVIS or (iii) either alone or in aggregation with other information covered
by
this Section, otherwise have led or may lead to a material adverse effect on
the
transactions contemplated herein or on PAIVIS, its assets, or its operations
or
activities as presently conducted or as contemplated to be conducted after
the
Closing Date, including, but not limited to, information relating to
governmental, employee, environmental, litigation and securities matters and
transactions with affiliates.
Section
2.07 Options
or Warrants. There are no existing options, warrants, calls, or
commitments of any character relating to the authorized and unissued stock
of
PAIVIS, except as described in Schedule 2.06 (the "Existing
Rights").
Section
2.08 Absence
of Certain Changes or Events. Except as disclosed in the PAIVIS
Schedules, or otherwise disclosed in writing to A4, since
the date of the most recent PAIVIS balance sheet:;
(a) there
has not been (i) any material adverse change in the business, operations,
properties, assets or condition of PAIVIS or (ii) any damage, destruction or
loss to PAIVIS (whether or not covered by insurance) materially and adversely
affecting the business, operations, properties, assets or condition of
PAIVIS except
as disclosed in PAIVIS Schedules; and
(b) PAIVIS
has not (i) amended its certificate of incorporation or bylaws; (ii) declared
or
made, or agreed to declare or make any payment of dividends or distributions
of
any assets of any kind whatsoever to stockholders or purchased or redeemed,
or
agreed to purchase or redeem, any of its capital stock; (iii) waived any rights
of value which in the aggregate are outside of the ordinary course of business
or material considering the business of PAIVIS; (iv) made any material change
in
its method of management, operation, or accounting; (v) entered into any
transactions or agreements other than in the ordinary course of business; (vi)
made any accrual or arrangement for or payment of bonuses or special
compensation of any kind or any severance or termination pay to any
present or former officer or employee; (vii) increased the rate of compensation
payable or to become payable by it to any of its officers or directors or any
of
its salaried employees whose monthly compensation exceed $1,000;
or (viii) made any increase in any profit sharing, bonus, deferred
compensation, insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement, made to, for or with its officers, directors, or
employees; except as disclosed in PAIVIS Schedules; and
-5-
(c) PAIVIS
has not (i) granted or agreed to grant any options, warrants, or other rights
for its stock, bonds, or other corporate securities calling for the issuance
thereof; (ii) borrowed or agreed to borrow any funds or incurred, or become
subject to, any material obligation or liability (absolute or contingent) except
liabilities incurred in the ordinary course of business; (iii) paid or agreed
to
pay any material obligations or liabilities (absolute or contingent) other
than
current liabilities reflected in or shown on the most recent PAIVIS balance
sheet and current liabilities incurred since that date in the ordinary course
of
business and professional and other fees and expenses in connection with the
preparation of this Agreement and the consummation of the transaction
contemplated hereby; (iv) sold or transferred, or agreed to sell or transfer,
any of its assets, properties, or rights (except assets, properties, or rights
not used or useful in its business which, in the aggregate have a value of
less
than $1000), or canceled, or agreed to cancel, any debts or claims (except
debts
or claims which in the aggregate are of a value less than $1000); (v) made
or
permitted any amendment or termination of any contract, agreement, or license
to
which it is a party if such amendment or termination is material, considering
the business of PAIVIS; or (vi) issued, delivered or agreed to issue or deliver,
any stock, bonds, or other corporate securities including debentures (whether
authorized and unissued or held as treasury stock), except in connection with
this Agreement, except as disclosed in PAIVIS Schedules; and
(d) to
the best knowledge of PAIVIS, it has not become subject to any law or regulation
which materially and adversely affects, or in the future, may adversely affect,
the business, operations, properties, assets or condition of PAIVIS except
as
disclosed in PAIVIS Schedules.
Section
2.09 Litigation
and Proceedings. There are no actions, suits, proceedings or
investigations pending or, to the knowledge PAIVIS after reasonable
investigation, threatened by or against PAIVIS or
affecting PAIVIS or its properties, at law or in equity,
before any court or other governmental agency or instrumentality, domestic
or
foreign, or before any arbitrator of any kind except as disclosed in PAIVIS
Schedules. PAIVIS Limited has no knowledge of any default on its
part with respect to any judgment, order, writ, injunction, decree, award,
rule
or regulation of any court, arbitrator, or governmental agency or
instrumentality or any circumstance that after reasonable investigation would
result in the discovery of such default.
Section
2.10 Contracts.
(a) PAIVIS is
not a party to, and its assets, are not bound by, any material contract,
franchise, license agreement, agreement, debt instrument or other commitments
whether such agreement is in writing or oral, except as disclosed in PAIVIS
Schedules .
(b) PAIVIS
is not a party to or bound by, and the properties of PAIVIS are not subject
to
any contract, agreement, other commitment or instrument; any charter or other
corporate restriction; or any judgment, order, writ, injunction, decree, or
award which materially and adversely affects, the business operations,
properties, assets, or condition of PAIVIS.
(c) All
contracts, agreements, franchises, license agreements, and other commitments
to
which PAIVIS is a party or by which its properties are bound and which are
material to the operations of PAIVIS taken as a whole are valid and enforceable
by PAIVIS in all respects, except as limited by bankruptcy and insolvency laws
and by other laws affecting the rights of creditors generally;
-6-
(d) Except
as included or described in the PAIVIS Schedules or reflected in the most recent
PAIVIS consolidated balance sheet, PAIVIS is not a party to any oral or written
(i) contract for the employment of any officer or employee which is not
terminable on 30 days, or less notice; (ii) profit sharing, bonus, deferred
compensation, stock option, severance pay, pension benefit or retirement plan,
(iii) agreement, contract, or indenture relating to the borrowing of money,
(iv)
guaranty of any obligation, other than one on which PAIVIS is a primary obligor,
for the borrowing of money or otherwise, excluding endorsements made for
collection and other guaranties of obligations which, in the aggregate do not
exceed more than one year or providing for payments in excess of $25,000 in
the
aggregate; (vi) collective bargaining agreement; or (vii) agreement with any
present or former officer or director of PAIVIS.
Section
2.11 Material
Contract Defaults. PAIVIS is not in default in any material
respect under the terms of any outstanding contract, agreement, lease, or other
commitment which is material to the business, operations, properties, assets
or
condition of PAIVIS and there is no event of default in any material respect
under any such contract, agreement, lease,
or other commitment in respect of which PAIVIS has not taken adequate steps
to
prevent such a default from occurring.
Section
2.12 No
Conflict With Other Instruments. The execution of this Agreement
and the consummation of the transactions contemplated by this Agreement will
not
result in the breach of any term or provision of, constitute a default under,
or
terminate, accelerate or modify the terms of, any indenture, mortgage, deed
of
trust, or other material agreement or instrument to which A4 is a party or
to
which any of its assets or operations are subject.
Section
2.13 Governmental
Authorizations. PAIVIS has all licenses, franchises, permits, and
other governmental authorizations, that are legally required to enable it to
conduct its business operations in all material respects as conducted on the
date hereof. Except for compliance with federal and state securities
or corporation laws, as hereinafter provided, no authorization, approval,
consent or order of, of registration, declaration or filing with, any court
or
other governmental body is required in connection with the execution and
delivery by PAIVIS of this Agreement and the consummation by TELELON of the
transactions contemplated hereby.
Section
2.14 Compliance
With Laws and Regulations. To the best of its knowledge, PAIVIS
has complied with all applicable statutes and regulations of any federal, state,
or other applicable governmental entity or agency thereof, except to the extent
that noncompliance would not materially and adversely affect the business,
operations, properties, assets or condition of A4 or except to the extent that
noncompliance would not result in the occurrence of any material
liability. This compliance includes, but is not limited to, the
filing of all reports to date with federal and state securities
authorities.
Section
2.15 Material
Transactions or Affiliations. Except as disclosed herein and in
the PAIVIS Schedules, there exists no contract, agreement or arrangement between
PAIVIS and any predecessor and any person who was at the time of such contract,
agreement or arrangement an officer, director, or person owning of record or
known by PAIVIS to own beneficially, 5% or more of the issued and outstanding
common stock of PAIVIS and which is to be performed in whole or in part after
the date hereof or was entered into not more than three years prior to the
date
hereof. Neither any officer, director, nor 5% shareholder of PAIVIS
has, or has had since inception of PAIVIS, any known interest, direct or
indirect, in any such transaction with PAIVIS which was material to the business
of PAIVIS. PAIVIS has no commitment, whether written or oral, to lend
any funds to, borrow any money from, or enter into any other transaction with,
any such affiliated person.
Section
2.16 Approval
of Agreement. The board of directors PAIVIS have authorized the
execution and delivery of this Agreement and has approved this
Agreement and the transactions contemplated hereby.
Section
2.17 Continuity
of Business Enterprises. PAIVIS has no commitment or present
intention to liquidate PAIVIS or sell or otherwise dispose of a material portion
of PAIVIS’S business or assets following the consummation of the transactions
contemplated hereby,except
as disclosed in PAIVIS Schedules.
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Section
2.18 PAIVIS
Schedules. PAIVIS has delivered or agrees to
deliver to A4 the following schedules as of the date above written or
no later than Closing, which are collectively referred to as the "PAIVIS
Schedules" and which consist of separate schedules, which are dated the date
of
this Agreement or dated as of the date of Closing, all certified by the chief
executive officer of PAIVIS to be complete, true, and accurate in all material
respects as of the date of this Agreement:
(a) a
schedule containing complete and accurate copies of the certificate of
incorporation and bylaws of PAIVIS as in effect as of the date of this
Agreement;
(b) a
schedule containing the consolidated financial statements of PAIVIS identified
in paragraph 2.04(a);
(c) a
Schedule 2.20(c) containing a list indicating the name and address of each
shareholder of PAIVIS together with the number of shares owned by him, her
or
it;
(d) a
schedule containing a description of all real property owned by PAIVIS, together
with a description of every mortgage, deed of trust, pledge, lien, agreement,
encumbrance, claim, or equity interest of any nature whatsoever in such real
property;
(e) copies
of all licenses, permits, and other governmental authorizations (or requests
or
applications therefor) pursuant to which PAIVIS carries on or proposes to carry
on its business (except those which, in the aggregate, are immaterial to the
present or proposed business of PAIVIS);
(f) a
schedule listing the accounts receivable and notes and other obligations of
PAIVIS as of June 30, 2007, or thereafter other than in the ordinary
course of business of PAIVIS, indicating the debtor and amount, and classifying
the accounts to show in reasonable detail the length of time, if any, overdue,
and stating the nature and amount of any refunds, set offs, reimbursements,
discounts, or other adjustments which are in the aggregate material and due
to
or claimed by such debtor;
(g) a
schedule listing the accounts payable and notes and other obligations payable
of
PAIVIS as of June 30, 2007, or that arose thereafter other than in the ordinary
course of the business of PAIVIS, indicating the creditor and amount,
classifying the accounts to show in reasonable detail the length of time, if
any, overdue, and stating the nature and amount of any refunds, set offs,
reimbursements, discounts, or other adjustments, which in the aggregate are
material and due to or claimed by PAIVIS respecting such
obligations;
(h) a
schedule setting forth a description of any material adverse change in the
business, operations, property, inventory, assets, or condition of PAIVIS since
June 30, 2007 required to be provided pursuant to section 2.07 hereof;
and
(i) a
schedule setting forth any other information, together with any required copies
of documents, required to be disclosed in the PAIVIS Schedules by Sections
2.01
through 2.19.
PAIVIS
shall cause the PAIVIS Schedules and the instruments and data delivered to
A4
hereunder to be promptly updated after the date hereof up to and including
the
Closing Date.
Section
2.19 Bank
Accounts; Power of Attorney. Set forth in Schedule 2.19 is a true
and complete list of (a) all accounts with banks, money market mutual funds
or
securities or other financial institutions maintained by PAIVIS within the
past
twelve (12) months, the account numbers thereof, and all persons authorized
to
sign or act on behalf of PAIVIS, (b) all safe deposit boxes and other similar
custodial arrangements maintained by PAIVIS within the past twelve (12) months,
and (c) the names of all persons holding powers of attorney from PAIVIS or
who
are otherwise authorized to act on behalf of PAIVIS with respect to any matter,
other than its officers and directors, and a summary of the terms of such powers
or authorizations.
Section
2.20 Valid
Obligation. This Agreement and all agreements and other documents
executed by PAIVIS in connection herewith constitute the valid and binding
obligation of PAIVIS, enforceable in accordance with its or their terms, except
as may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and subject to the
qualification that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefor may be
brought.
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ARTICLE
III
PLAN
OF PURCHASE AND EXCHANGE
Section
3.01 The
Purchase and Exchange. On the terms and subject to the conditions set
forth in this Agreement, on the Closing Date (as defined in Section 3.03) the
following events shall occur.
A4
shall:
a) execute
and tender to PAIVIS a Xxxx of Sale transferring those assets of A4 identified
on Exhibit X1 attached hereto to PAIVIS. Such shall constitute substantially
all
assets of the business of A4.
b) execute
and tender to PAIVIS and thereby grant to PAIVIS at Closing an option to
purchase all the issued and outstanding shares of A4, a copy of which is
attached hereto as Exhibit X2. Such shall provide that such option shall be
exercisable by the tender of consideration specified as shares of PAIVIS as
identified in Section 3.02(a) hereinafter. Such option shall be subject to
election by PAIVIS at anytime subsequent to one hundred twenty (120) days after
the date of closing, but shall expire on the 366th date after closing, unless
extended as provided in such Exhibit.
c)
execute an Acknowledgement and Agreement at Closing whereunder, A4 shall agree
to maintain those credit facilities identified on Exhibit X3 for the sole and
exclusive purpose of the purchase of product for the operation of the business
entity to be formed by PAIVIS post-Closing identified as “New Co”, the
intentions of the parties being that such corporation shall be merged into
A4
upon exercise of option as provided in section b hereinabove.
d) provide
a Resolution of the Directors of A4 which shall authorize its agent to execute
all documents identified to be executed and/or tendered at Closing.
PAIVIS
shall:
a)
tender
to A4 payment of Fifty thousand and no/100 dollars at Closing.
b)
execute and tender to A4 at Closing a promissory note (“Note”) payable in the
amount of One hundred forty thousand and no/100 dollars. The note shall be
paid
in fourteen monthly installments of ten thousand and no/100, and such shall
be
substantially in accordance with those terms provided in Exhibit X4 attached
hereto. Such shall include the assessment and accrual of interest at the rate
of
ten (10%) percent per annum, but shall include that all such interest shall
be
abated if all payments shall be made in a timely manner. Such shall include
provisions that upon a default in the payment of the obligations therein, the
Holder of such may demand and PAIVIS, and or its assignee, shall surrender
all
assets conveyed hereunder, or any accessions thereto, to such Holder. The
parties acknowledge and agree that such Note shall be assigned to Virasack
Tiger
Athakhanh upon execution.
c)
execute and tender to Virasack Tiger Athakhanh an employment agreement, which
shall provide the terms and conditions identified in Section 3.05, contained
elsewhere herein.
d)
execute an Acknowledgement and Agreement at Closing where under, PAIVIS shall
agree to reimburse A4 for expenses incurred due to any and all payment of all
obligations of the credit facilities identified on Exhibit X3 which shall be
used for the sole and exclusive purpose of the purchase of product for the
operation of the business entity to be formed by PAIVIS post-Closing identified
as “New Co”, such being the interim operator of the business of A4. At such time
as PAIVIS shall elect to acquire the common stock of A4, PAIVIS shall
acknowledge those liabilities, which shall not exceed $750,000.00.
e)
provide a Resolution of the Directors of PAIVIS which shall authorize its agent
to execute all documents identified to be executed and/or tendered at
closing.
f)
reimburse A4 all reasonable costs and expenses arising from this transaction,
including any legal or accounting fees assessed to A4.
VIRASACK
TIGER ATHAKHANH (“Athakhanh”) shall:
a)
execute an employment agreement which shall be reasonably acceptable as provided
in Section 3.05 hereinafter.
b)
execute a non-compete agreement whereunder Athakhanh shall agree that he will
not complete with the business of A4 for a period of three years, which shall
be
substantially in accordance with the terms of Exhibit X5 attached hereto. Such
shall acknowledge the existing commercial activities of Athakhanh as not
violating any restrictive covenants.
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Section
3.02. Option to Acquire Shares of A4 by PAIVIS:
It
is
agreed that upon exercise of the option to acquire the shares of A4,
A4 Shareholders shall elect to accept the purchase and exchange offer described
herein (the "Accepting Shareholders"), shall assign, transfer and deliver,
free
and clear of all liens, pledges, encumbrances, charges, restrictions or known
claims of any kind, nature, or description, the number of shares of common
stock
of A4 set forth on Schedule 1.19(c) attached hereto, in the aggregate
constituting 100% of the issued and outstanding shares of
stock (common or other) of A4 held by each of such shareholders (“A4
Shares”); the objective of such Exchange being the acquisition by PAIVIS of 100%
of the issued and outstanding common stock of A4. In exchange for the
transfer of such securities by the A4 Shareholders, PAIVIS shall:
a) issue
to the A4 Shareholders, 266,667 Preferred Series D shares (the “Preferred
Shares” or “the Initial Shares”) equal to $1,000,000.The preferential provisions
(the “Provisions”) of the Preferred Shares as defined in Exhibit
A. and;
b) acknowledge
the of the liabilities as identified on Exhibit X3.
At
the
Closing, each A4 Shareholder shall, on surrender of his certificate or
certificates representing such A4 Shares to PAIVIS or its registrar or transfer
agent, be entitled to receive a certificate or certificates evidencing his
proportionate interest in the Initial Shares. Upon consummation of
the transaction contemplated herein, assuming participation by all of the A4
Shareholders, all of the shares of capital stock of A4 shall be held by
PAIVIS.
In
the
event, PAIVIS shall not exercise its option to acquire the shares of A4, then
and in such event, PAIVIS, or its assignee, NEW CO, shall assume the liabilities
identified on Exhibit X3 attached hereto, if there shall be any balance
remaining for those obligations.
Section
3.03 Federal
Excise Tax Refund. PAIVIS, on its behalf or
as the acquirer of A4 agrees that it shall make no claim whatsoever to a Federal
Excise Tax refund for which A4 has submitted its application to the Internal
Revenue Service for the tax year ending December 31, 2006. In the event of
any
sale, transfer or conveyance of the stock of A4 as contemplated herein, prior
to
the conclusion of the issuance of any refund, then and in such event A4 shall
assign its interest in any refund to Virasack Tiger Athakhanh, or his
designee.
Section
3.04 Working
Capital Financing . PAIVIS agrees to provide to A4 $1,000,000
(“Working Capital Financing”) in financing for the purposes of
working and growth capital.. The delivery and use of proceeds is detailed in
Exhibit B. Such capital shall not include any financing maintained by
AAAA which is pre-existing the date of this Agreement or has may be extended
prior to the date of closing.
Section
3.05 Employment
and Stock Compensation Agreement for Virasack Tiger Athakhanh. PAIVIS
and A4 President & CEO Virasack Tiger Athakhanh shall at or before Closing
negotiate and execute and an Employment and Stock Compensation Agreement for
and
with Virasack Tiger Athakhanh. The Employment and Stock Compensation Agreement
with Virasack Tiger Athakhanh will be negotiated with mutually accepted terms
including responsibilities and compensation comparable to those currently in
effect for Virasack Tiger Athakhanh and employment period of a minimum of three
years and provision providing for any non compete provisions to be terminated
if
employment agreement with Virasack Tiger Athakhanh is terminated by PAIVIS
without cause or PAIVIS defaults in the performance of any obligation hereunder.
The employment and Stock Compensation Agreement will include the following
terms, $8,000 gross salary/month and maintenance of current health benefits.
Virasack Tiger Athakhanh will be appointed to the office of VP specifically
to
be defined at Closing within the terms of Employment and Stock Compensation
Agreement.
In
the
event the stock transfer as provided in Section 3.01. does not qualify for
a tax
free exchange, then and in such event, Paivis Corp. shall grant unto Athakhanh
warrants to purchase those shares of Paivis Corp. at Closing for the additional
purchase price of 0.01 per share and such purchase price may be paid in equal
installments over the period of twelve months subsequent to
Closing.
Section
3.06 Closing. The
closing ("Closing") of the transactions contemplated by this Agreement shall
take place on November 15, 2007 at 3:00 p.m., Eastern Standard Time or at a
time
and place agreeable by both Parties. Subject to extension by mutual agreement
of
the Parties.
-10-
Section
3.06 Changes
to Interim Operations. The financial statements (unaudited) of A4 shall reflect
all current and total liabilities, including all trade payables and all A4
assets at Closing; except that immediately before Closing all cash and
receivables of A4 may be used , under the sole discretion of A4 by A4
to reduce A4’s credit balance for inventory/COGS. Therefore no cash assets may
be transferred with A4. Further it is acknowledged that the Lease for the
principle business address of A4 will expire on or about December 1, 2007,
and
that A4 will be relocating its business to a mutually acceptable
location.
Section
3.07 Closing
Events. At the Closing, A4 and each of the Accepting Shareholders
shall execute, acknowledge, and deliver (or shall ensure to be executed,
acknowledged, and delivered) any and all certificates, opinions, financial
statements, schedules, agreements, resolutions, rulings or other instruments
required by this Agreement to be so delivered at or prior to the Closing,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence
the
transactions contemplated hereby. This Agreement shall become
effective as of Closing on November 15, 2007. Subject to extension by mutual
agreement of the Parties.
Section
3.08 Current
Employees. PAIVIS agrees for A4 to retain its current employees that
are under the employ of A4 at Closing,
Section
3.09 Business
Planning. Prior to Closing A4 and Tiger agree to deliver a
short form business plan to PAIVIS to be approved by the Board of
Directors of PAIVIS at or before Closing detailing the initial growth and
expansion plans for A4 based on the working capital financing described
herein.
A4
and
Tiger agree to deliver a comprehensive business plan to the Board of Directors
of Paivis within 90 days after Closing detailing the growth and expansion plans
for A4 for next 2-3 fiscal years including any further working capital
requirements.
Section
3.10 Termination.
(a) This
Agreement may be terminated by the board of directors of either PAIVIS or A4
at
any time prior to the Closing if:
(i) there
shall be any actual or threatened action or proceeding before any court or
any
governmental body which shall seek to restrain, prohibit, or invalidate the
transactions contemplated by this Agreement and which, in the judgment of such
board of directors, made in good faith and based upon the advice of its legal
counsel, makes it inadvisable to proceed with the Exchange; or
(ii) any
of the transactions contemplated hereby are disapproved by any regulatory
authority whose approval is required to consummate such transactions (which
does
not include the Securities and Exchange Commission) or in the judgment of such
board of directors, made in good faith and based on the advice of counsel,
there
is substantial likelihood that any such approval will not be obtained or will
be
obtained only on a condition or conditions which would be unduly burdensome,
making it inadvisable to proceed with the Exchange.
In
the
event of termination pursuant to this paragraph (a) of Section 3.04, no
obligation, right or liability shall arise hereunder, and each party shall
bear
its own costs and expenses incurred by it in connection with the negotiation,
drafting, and execution of this Agreement and the transactions herein
contemplated.
ARTICLE
IV
SPECIAL
COVENANTS
Section
4.01 Access
to Properties and Records. Each of the Parties will each afford
to the officers and authorized representatives of the other Parties full access
to their properties, books and records, in order that each may have a full
opportunity to make such reasonable investigation as they shall desire to make
of the affairs of the other, and each will furnish the other with such
additional financial and operating data and other information reasonably
requested.
-11-
Section
4.02 Delivery
of Books and Records. At the Closing, A4 shall deliver to PAIVIS
the copies of the corporate minute books, books of account, contracts, records,
and all other books or documents of A4 now in the possession of A4 or its
officer and director.
Section
4.03 Third
Party Consents and Certificates. All Parties agree to cooperate
with each other in order to obtain any required third party consents to this
Agreement and the transactions herein contemplated.
Section
4.04 Consent
of A4 Shareholders. A4 shall use its best efforts to obtain the
consent of all A4 shareholders to participate in the Exchange.
Section
4.05 PAIVIS
Shareholder Meeting. If required PAIVIS shall seek a consent of
the majority voting shareholders or call a special shareholders meeting to
be
held on or prior to the Closing Date for the purposes of requesting to approve,
and PAIVIS's board of directors shall recommend approval of, the terms of this
Agreement and such other matters as shall require shareholder approval
hereunder
Section
4.06 Post-Exchange
Sales Under Rule 144 or 145, If Applicable.
(a) PAIVIS
will use its best efforts to at all times comply with the reporting requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including timely filing of all periodic reports required under the provisions
of
the Exchange Act and the rules and regulations promulgated
thereunder.
(b) Upon
being informed in writing by any such person holding restricted stock of PAIVIS
subsequent to the Exchange that such person intends to sell any shares under
Rule 144, Rule 145 or Regulation S promulgated under the Securities Act
(including any rule adopted in substitution or replacement thereof), PAIVIS
will
certify in writing to such person that it has filed all of the reports required
to be filed by it under the Exchange Act to enable such person to sell such
person's restricted stock under Rule 144, 145 or Regulation S, as may be
applicable in the circumstances, or will inform such person in writing that
it
has not filed any such report or reports.
(c) If
any certificate representing any such restricted stock is presented to PAIVIS’S
transfer agent for registration of transfer in connection with any sale
theretofore made under Rule 144, 145 or Regulation S, provided such certificate
is duly endorsed for transfer by the appropriate person(s) or accompanied by
a
separate stock power duly executed by the appropriate person(s) in each case
with reasonable assurances that such endorsements are genuine and effective,
and
is accompanied by an opinion of counsel satisfactory to PAIVIS and
its counsel that the stock transfer has complied with the requirements of Rule
144, 145 or Regulation S, as the case may be, PAIVIS will promptly instruct
its
transfer agent to register transfer such shares and to issue one or more new
certificates representing such shares to the transferee and, if appropriate
under the provisions of Rule 144, 145 or Regulation S, as the case may be,
free
of any stop transfer order or restrictive legend. The provisions of
this Section 4.08 shall survive the Closing and the consummation of the
transactions contemplated by this Agreement.
Section
4.07 Indemnification.
(a) A4
hereby agrees to indemnify PAIVIS and each of the officers, agents and directors
of PAIVIS as of the date of execution of this Agreement against any loss,
liability, claim, damage, or expense (including, but not limited to, any and
all
expense whatsoever reasonably incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim whatsoever),
to
which it or they may become subject arising out of or based on any inaccuracy
appearing in or misrepresentations made under Article I of this
Agreement. The indemnification provided for in this paragraph shall
survive the Closing and consummation of the transactions contemplated hereby
and
termination of this Agreement.
-12-
PAIVIS
hereby agrees to indemnify A4 and each of the officers, agents, and directors
of
A4 as of the date of execution of this Agreement against any loss, liability,
claim, damage, or expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing, or defending against
any litigation, commenced or threatened, or any claim whatsoever), to which
it
or they may become subject arising out of or based on any inaccuracy appearing
in or misrepresentation made under Article II of this Agreement. The
indemnification provided for in this paragraph shall survive the Closing and
consummation of the transactions contemplated hereby and termination of this
Agreement.
ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF PAIVIS
The
obligations of PAIVIS under this Agreement are subject to the satisfaction,
at
or before the Closing, of the following conditions:
Section
5.01 Accuracy
of Representations and Performance of Covenants. The
representations and warranties made by A4 in this Agreement were true when
made
and shall be true at the Closing with the same force and effect as if such
representations and warranties were made at and as of the Closing (except for
changes therein permitted by this Agreement). A4 shall have performed
or complied with all covenants and conditions required by this Agreement to
be
performed or complied with by A4 prior to or at the Closing.
Section
5.02 Officer's
Certificate. PAIVIS has been furnished with a certificate dated
the Closing Date and signed by a duly authorized officer of A4 to the effect
that no litigation, proceeding, investigation, or inquiry is pending, or to
the
best knowledge of A4 threatened, which might result in an action to enjoin
or
prevent the consummation of the transactions contemplated by this Agreement,
or,
to the extent not disclosed in the A4 Schedules, by or against A4, which might
result in any material adverse change in any of the assets, properties,
business, or operations of A4.
Section
5.03 No
Material Adverse Change. Prior to the Closing , there shall not
have occurred any change in the financial condition, business, or operations
of
A4 nor shall any event have occurred which, with the lapse of time or the giving
of notice, is determined to be unacceptable using the criteria set forth in
Section 1.06.
Section
5.04 Approval
by Shareholders. The Purchase and Exchange shall have been
approved, and shares delivered in accordance with Section 3.01, by the holders
of not less than one hundred percent (100%) of the outstanding common stock
of
A4.
Section
5.05 No
Governmental Prohibition. No order, statute, rule, regulation,
executive order, injunction, stay, decree, judgment or restraining order shall
have been enacted, entered, promulgated or enforced by any court or governmental
or regulatory authority or instrumentality which prohibits the consummation
of
the transactions contemplated hereby.
Section
5.06 Consents. All
consents, approvals, waivers or amendments pursuant to all contracts, licenses,
permits, trademarks and other intangibles in connection with the transactions
contemplated herein, or for the continued operation of A4 after the Closing
on
the basis as presently operated shall have been obtained.
Section
5.07 Delivery
of Financial Statements. PAIVIS shall have received from
A4 Consolidated Audited financial Statements of A4 for the previous
two A4 fiscal periods ended December 31, 2006 and December 31, 2005
and the unaudited financial statements for the period ending September
30,2007.
Section
5.08 Other
Items.
(a) PAIVIS
shall have received a list of A4’s shareholders containing the name, address,
and number of shares held by each A4 shareholder as of the date of Closing,
certified by an executive officer of A4 as being true, complete and accurate;
and
-13-
(b) PAIVIS
shall have received such further opinions, documents, certificates or
instruments relating to the transactions contemplated hereby as Parent may
reasonably request.
Section
5.08 Satisfaction
of Due Diligence Mutual completion of legal and
financial due diligence to the satisfaction of both A4 and Paivis in writing
to
the other party before or at Closing, including disclosure of all pending
material agreements contracts and liabilities
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF A4
The
obligations of A4 and the A4 Shareholders under this Agreement are subject
to
the satisfaction, at or before the Closing, of the following
conditions:
Section
6.01 Accuracy
of Representations and Performance of
Covenants. The representations and warranties made by A4 in this
Agreement were true when made and shall be true as of the Closing (except for
changes therein permitted by this Agreement) with the same force and effect
as
if such representations and warranties were made at and as of the
Closing. Additionally, A4 shall have performed and complied with all
covenants and conditions required by this Agreement to be performed or complied
shall have approved the Exchange and the related transactions described herein..
PAIVIS shall have been furnished with certificates, signed by duly authorized
executive officers of A4 and dated the Closing , to the foregoing
effect.
Section
6.02 Officer's
Certificate. PAIVIS shall have been furnished with certificates
dated the Closing Date and signed by duly authorized executive officers of
A4,
to the effect that no litigation, proceeding, investigation or inquiry is
pending, or to the best knowledge of A4 threatened, which might result in an
action to enjoin or prevent the consummation of the transactions contemplated
by
this Agreement or, to the extent not disclosed in the A4 Schedules, by or
against A4, which might result in any material adverse change in any of the
assets, properties or operations of A4.
Section
6.03 No
Governmental Prohibition. No order, statute, rule, regulation,
executive order, injunction, stay, decree, judgment or restraining order shall
have been enacted, entered, promulgated or enforced by any court or governmental
or regulatory authority or instrumentality which prohibits the consummation
of
the transactions contemplated hereby.
Section
6.04 Consents. All
consents, approvals, waivers or amendments pursuant to all contracts, licenses,
permits, trademarks and other intangibles in connection with the transactions
contemplated herein, or for the continued operation of each party after the
Closing on the basis as presently operated shall have been
obtained.
Section
6.05 Delivery
of the Preferred Shares and Cash Payment. PAIVIS
shall have at Closing delivered to the A4 Shareholders the Preferred Shares
and
the portion of the cash payment due on Closing as per Section 3.01.
Section
6.06 The
Provisions of the Preferred Shares shall have been defined at Closing per
Section 3.01.
Section
6.07 Delivery
of Working Capital Financing . PAIVIS shall have at Closing
delivered to A4 the Working Capital Financing, specifically the
portion due on Closing as per Section 3.02.
Section
6.08 Execution
of Employment and Stock Compensation Agreement for Virasack Tiger
Athakhanh. PAIVIS and shall at or before
Closing executed an Employment Agreement for and with Virasack Tiger
Athakhanh as per Section 3.04.
Section
6.09 Other
Items A4 shall have received further opinions, documents,
certificates, or instruments relating to the transactions contemplated hereby
as
PAIVIS may reasonably request.
Section
6.10 Satisfaction
of Due Diligence Mutual completion of legal and
financial due diligence to the satisfaction of both A4 and Paivis in writing
to
the other party before or at Closing, including disclosure of all pending
material agreements contracts and liabilities.
-14-
ARTICLE
VII
MISCELLANEOUS
Section
7.01 Brokers. The
Parties agree that there were no finders or brokers involved in bringing the
parties together or who were instrumental in the negotiation, execution or
consummation of this Agreement. The Parties each agree to indemnify
the other against any claim by any third person other than those described
above
for any commission, brokerage, or finder's fee arising from the transactions
contemplated hereby based on any alleged agreement or understanding between
the
indemnifying party and such third person, whether express or implied from the
actions of the indemnifying party.
Section
7.02 Governing
Law. This Agreement shall be governed by, enforced, and construed
under and in accordance with the laws of the United States of America and,
with
respect to the matters of state law, with the laws of the State of Nevada
without giving effect to principles of conflicts of law
thereunder. Each of the parties (a) irrevocably consents and agrees
that any legal or equitable action or proceedings arising under or in connection
with this Agreement shall be brought exclusively in the federal courts of the
United States,.
Section
7.03 Notices. Any
notice or other communications required or permitted hereunder
shall be in writing and shall be sufficiently given if personally
delivered to it or sent by telecopy, overnight courier or registered mail or
certified mail, postage prepaid, addressed as follows:
|
If
to PAIVIS:
|
PAIVIS
Corp.
400
– 0000 Xxxxx Xxxx
Xxxxxxx,
XX 00000
Attn:
the Board of Directors
|
|
With
copies to:
|
Xxxxxxx
Xxxxxx, Esq.
Law
Office of Xxxxxxx Xxxxxx, P.C 400 – 0000 Xxxxx Xxxx
Xxxxxxx,
XX 00000
|
|
If
to A4:
|
AAAA
Media Services, Inc.
0000
XxxXxxxx Xxxxxxxxxx Xxxxx.
Xxxxxxxxx,
XX 00000
Attn:
the Board of Directors
|
or
such
other addresses as shall be furnished in writing by any party in the manner
for
giving notices hereunder, and any such notice or communication shall be deemed
to have been given (i) upon receipt, if personally delivered, (ii) on the day
after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three
(3)
days after mailing, if sent by registered or certified mail.
Section
7.04 Attorney's
Fees. In the event that either party institutes any action or
suit to enforce this Agreement or to secure relief from any default hereunder
or
breach hereof, the prevailing party shall be reimbursed by the losing party
for
all costs, including reasonable attorney's fees, incurred in connection
therewith and in enforcing or collecting any judgment rendered
therein.
Section
7.05 Confidentiality. Each
party hereto agrees with the other that, unless and until the transactions
contemplated by this Agreement have been consummated, it and its representatives
will hold in strict confidence all data and information obtained with respect
to
another party or any subsidiary thereof from any representative, officer,
director or employee, or from any books or records or from personal inspection,
of such other party, and shall not use such data or information or disclose
the
same to others, except (i) to the extent such data or information is published,
is a matter of public knowledge, or is required by law to be published; or
(ii)
to the extent that such data or information must be used or disclosed in order
to consummate the transactions contemplated by this Agreement. In the
event of the termination of this Agreement, each party shall return to the
other
party all documents and other materials obtained by it or on its behalf and
shall destroy all copies, digests, work papers, abstracts or other materials
relating thereto, and each party will continue to comply with the
confidentiality provisions set forth herein.
-15-
Section
7.06 Public
Announcements and Filings. Unless required by applicable law or
regulatory authority, none of the parties will issue any report, statement
or
press release to the general public, to the trade, to the general trade or
trade
press, or to any third party (other than its advisors and representatives in
connection with the transactions contemplated hereby) or file any document,
relating to this Agreement and the transactions contemplated hereby, except
as
may be mutually agreed by the parties. Copies of any such filings,
public announcements or disclosures, including any announcements or disclosures
mandated by law or regulatory authorities, shall be delivered to each party
at
least one (1) business day prior to the release thereof.
Section
7.07 Schedules;
Knowledge. Each party is presumed to have full knowledge of all
information set forth in the other party's schedules delivered pursuant to
this
Agreement.
Section
7.08 Third
Party Beneficiaries. This contract is strictly between PAIVIS
and A4, and, except as specifically provided, no director, officer,
stockholder, employee, agent, independent contractor or any other person or
entity shall be deemed to be a third party beneficiary of this
Agreement.
Section
7.09 Expenses. Whether
or not the Exchange is consummated, each Party hereto will bear their own
respective expenses, including legal, accounting and professional fees, incurred
in connection with the Exchange or any of the other transactions contemplated
hereby accept as agreed upon herein or in separate agreement or understanding
reached by the Parties.
Section
7.10 Entire
Agreement. This Agreement represents the entire agreement between
the parties relating to the subject matter thereof and supersedes all prior
agreements, understandings and negotiations, written or oral, with respect
to
such subject matter.
Section
7.11 Survival;
Termination. The representations, warranties, and covenants of
the respective parties shall survive the Closing and the consummation
of the transactions herein contemplated for a period of two years.
Section
7.12 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
Section
7.13 Amendment
or Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at
law,
or in equity, and may be enforced concurrently herewith, and no waiver by any
party of the performance of any obligation by the other shall be construed
as a
waiver of the same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to the
Closing, this Agreement may by amended by a writing signed
by all parties hereto, with respect to any of the terms contained herein, and
any term or condition of this Agreement may be waived or the time for
performance may be extended by a writing signed by the party or parties for
whose benefit the provision is intended.
Section
7.14 Best
Efforts. Subject to the terms and conditions herein provided,
each party shall use its best efforts to perform or fulfill all conditions
and
obligations to be performed or fulfilled by it under this Agreement so that
the
transactions contemplated hereby shall be consummated as soon as
practicable. Each party also agrees that it shall use its best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective this Agreement and the transactions
contemplated herein.
IN
WITNESS WHEREOF, the corporate parties hereto have caused this Agreement to
be
executed by their respective officers, hereunto duly authorized, as of the
date
first-above written.
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|
ATTEST:
|
|
AAAA
Media Services, Ltd.
|
|
|
A
|
|
|
|
|
|
|
|
By:
|
/s/
Virasack
Tiger Athakhanh
|
|
|
_______________________________
Virasack
Tiger Athakhanh, President
|
|
|
|
Pr
|
|
|
ATTEST:
|
|
PAIVIS,
CORP.
|
|
|
A
|
|
|
|
|
|
|
|
By:
|
/s/
Xxxxx Xxxxx
|
|
|
_______________________________
Xxxxx
Xxxxx, President
|
|
|
|
Pr
|
|
-17-
Exhibit
A
-18-
Exhibit
B
-19-
Exhibit
X1
-20-
Exhibit
X2
-21-
Exhibit
X3
-22-
Exhibit
X4
-23-
Exhibit
X5
-24-
