1 (Ex. 10.3)
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT ("Agreement"), dated as of July 27, 2001
by and between FUTURE EDUCATIONAL SYSTEMS, INC., a Nevada corporation
("SELLER"), and ASEAN COMMERCIAL HOLDINGS, LTD., a foreign corporation
(hereinafter individually and collectively "PURCHASER").
WITNESSETH
WHEREAS, SELLER desires to sell six million (6,000,000) shares of
its common stock, $.01 par value per share (the "Shares") to PURCHASER
on the terms and conditions set forth in this Agreement; and
WHEREAS, PURCHASER desires to buy the Shares on the terms and
conditions set forth herein;
NOW THEREFORE, in consideration of the promises and respective
mutual agreements herein contained, it is agreed by and between the
parties hereto as follows:
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
1.1 Sale of the Share. Upon the execution of this Agreement
as provided in Section 3.1 hereto (the "Closing"), SELLER shall sell
to PURCHASER and PURCHASER shall purchase from SELLER, the Shares.
Concurrently, SELLER shall issue and deliver a certificate or
certificates representing the Shares to PURCHASER.
1.2 Consideration and Payment for the Shares. In consideration
for the sale and issuance of the Shares, PURCHASER shall pay a
purchase price in the form of a cancellation of indebtedness equal to
ten cents ($.10) per share owed to PURCHASER, for the total purchase
price of Six Hundred Thousand Dollars ($600,000) ("Purchase Price").
ARTICLE 2
REPRESENTATIONS AND COVENANTS OF SELLER AND PURCHASER
2.1 Representations and Warranties. The SELLER hereby represents
and warrants that:
(a) SELLER is a corporation duly incorporated,
validly existing and, at the closing, in good standing
under the laws of the State of Nevada and has the
corporate power and authority to own or lease its
properties and to carry on business as now being
conducted.
(b) At the closing, the authorized capital
stock of SELLER shall consist of 50,000,000 shares of
$0.01 par value common stock, of which not to exceed
580,605 shares of common stock are issued and
outstanding. Except for those certain shares of stock
purposed to be issued pursuant to a Plan and Agreement
of Reorganization, in an amount not to exceed
30,000,000 shares, there are no outstanding rights to
purchase any additional shares. All said shares are
validly issued, fully paid and non-assessable.
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2 (Ex. 10.3)
(c) SELLER has, or prior to the closing, will
furnish to Shareholder audited financial statements as
of December 31, 2000. All of said financial
statements, (i) are in accordance with SELLER's books
and records, (ii) present fairly and accurately the
financial position of SELLER as of such dates, and its
results of operations and changes in financial
position for the respective periods indicated, (iii)
have been prepared in conformity with generally
accepted accounting principles applied on a consistent
basis, and (iv) consistent with prior business
practice, contain adequate reserves for all known or
contingent liabilities, losses and refunds with
respect to services or products already rendered or
sold.
(d) From the date of the Financial Statements
to the Closing Date, there has been no material change
in the properties, assets, liabilities, financial
condition, business, operations, affairs or prospects
of SELLER from that set forth or reflected in the
Financial Statements, other than changes in the
ordinary course of business, none of which have been,
either in any case or in the aggregate, materially
adverse.
(e) SELLER has the power to enter into this
Agreement, and this Agreement, when duly executed and
delivered, will constitute the valid and binding
obligation of SELLER. This Agreement constitutes the
legal, valid and binding obligation of SELLER
enforceable in accordance with its terms.
(f) The execution and delivery by SELLER of
this Agreement and the consummation of the transaction
herein contemplated, (i) will not conflict with, or
result in a breach of the terms of, or constitute any
default under or violation of, any law or regulation
of any governmental authority, or the Articles of
Incorporation or By-Laws of SELLER, or any material
agreement or instrument to which SELLER is a party or
by which it is bound or is subject; (ii) nor will it
give to others any interest or rights, including
rights of termination, acceleration or cancellation,
in or with respect to any of the properties, assets,
agreements, leases, or business of SELLER.
(g) The records of meetings and other corporate
actions of SELLER (including any committees of the
Board) which are contained in the Minute books of
SELLER contain complete and accurate records of the
matters reflected in such minutes.
(h) SELLER is not a party to, and there are not
any claims, actions, suits, investigations or
proceedings pending or threatened against SELLER or
its business, at law or in equity, or before or by any
governmental department, commission, board, bureau,
agency, or instrumentality, domestic or foreign, which
if determined adversely would have a material effect
on the business or financial condition of SELLER or
the ability of SELLER to carry on its business. The
consummation of the transactions herein contemplated
will not conflict with or result in the breach or
violation of any judgment, order, writ, injunction or
decree of any court or governmental department,
commission,
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3 (Ex. 10.3)
board, bureau, agency or instrumentality, domestic or
foreign.
(i) SELLER has taken reasonable care to ensure
that all disclosures and facts are true and accurate,
and that there are no other material facts, the
omission of which would make misleading any statement
herein. Further, to the best of SELLER's knowledge, no
representation, warranty or agreement made by SELLER
in this agreement or any of the Schedules or any other
Exhibits hereto and no statement made in the Schedules
or any such Exhibit, list, certificate or schedule or
other instrument or disclosure furnished by them in
connection with the transactions herein contemplated
contains, or will contain, any untrue statement of a
material fact necessary to make any statement,
representation, warranty or agreement not misleading.
(j) Prior to Closing, the SELLER shall have
prepared such documents required to qualify the
issuance of the Shares in accordance with Regulation
S, promulgated under the Securities Act of 1933, as
amended, and shall have taken all other necessary
action and proceedings as may be required and
permitted by applicable law, rule and regulation for
the legal and valid issuance of the Shares to the
PURCHASER or subsequent holders. The SELLER represents
and warrants that the Shares may be issued as
securities without restrictive legend or other
restriction on transfer pursuant to Regulation S. The
SELLER is relying upon the truth and accuracy of the
representations, warranties, agreements,
acknowledgments and understandings of PURCHASER set
forth herein in order to determine the applicability
of such exemptions and the suitability of PURCHASER to
acquire the Shares.
2.2 Representations and Warranties. The PURCHASER hereby
represents and warrants that:
(a) The PURCHASER has full right, power and authority to
enter into this Agreement and to carry out and
consummate the transaction contemplated herein This
Agreement constitutes the legal, valid and binding
obligation of PURCHASER.
(b) The Purchaser has been given the opportunity to ask
questions of and to receive answers from persons
acting on each of the SELLERS' behalf concerning the
terms and conditions of this transaction and also has
been given the opportunity to obtain any additional
information which each of the SELLERS' possess or can
acquire without unreasonable effort or expense. As a
result PURCHASER is cognizant of the financial
condition, capitalization, use of proceeds from this
financing and the operations and financial condition
of SELLER has available full information concerning
their affairs and has been able to evaluate the merits
and risks of the investment in the Shares; and
(c) The Purchaser agrees:
(i) All offers and sales of the securities
prior to the expiration of the distribution compliance
period of Regulation S (Rule 901 and 905, and
Preliminary Notes) shall have offering restrictions
imposed;
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4 (Ex. 10.3)
(ii) The offer or sale, if made prior to the
expiration of a one-year distribution compliance
period, is not made to a U.S. person or for the
account or benefit of a U.S. person; and
(iii) The offer or sale, if made prior to the
expiration of a one-year distribution compliance
period, will be made pursuant to the following
conditions:
1. The purchaser of the securities
(other than a distributor) certifies that it is
not a U.S. person and is not acquiring the
securities for the account or benefit of any U.S.
person or is a U.S. person who purchased
securities in a transaction that did not require
registration under the Act.
2. The purchaser of the securities agrees
to resell such securities only in accordance with
the provisions of Regulation S (Rule 901 through
Rule 905, and Preliminary Notes), pursuant to
registration under the Act, or pursuant to an
available exemption from registration; and agrees
not to engage in hedging transactions with regard
to such securities unless in compliance with the
Act;
3. The securities of the Seller contain a
legend to the effect that transfer is prohibited
except in accordance with the provisions of
Regulation S (Rule 901 through Rule 905, and
Preliminary Notes), pursuant to registration
under the Act, or pursuant to an available
exemption from registration; and that hedging
transactions involving those securities may not
be conducted unless in compliance with the Act;
and
4. The Company is required, either by
contract or a provision in its bylaws, articles,
charter or comparable document, to refuse to
register any transfer of securities not made in
accordance with the provisions of Regulation S
(Rule 901 through Rule 905, and Preliminary
Notes) pursuant to registration under the Act, or
pursuant to an available exemption from
registration; provided, however, that if the
securities are in bearer form or foreign law
prevents the Seller from refusing to register
securities transfers, other reasonable procedures
are implemented to prevent any transfer of the
securities not made in accordance with the
provisions of this Regulation S.
(d) For offers and sales of equity securities of domestic
issuers, not to engage in hedging transactions with
regard to such securities prior to the expiration of
the distribution compliance period specified in (a)
above, unless in compliance with the Act.
ARTICLE 3
CLOSING AND DELIVERY OF DOCUMENTS
3.1 Closing. The Closing shall take place on July 27, 2000, at
0000 Xxxx xx Xxxxxxx Tower, 00 Xxxxxxxx Xxxx, Xxxxxxx Xxxx Xxxx, or at
such other time or place as the parties may agree. Subsequent to the
signing and at the Closing, the following shall deem to occur as a
single integrated transaction:
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5 (Ex. 10.3)
(a) SELLER shall deliver or cause its transfer agent to
deliver to the PURCHASER the stock certificate required by Section
1.1.
(b) SELLER shall deliver, or cause to be delivered, to the
PURCHASER such instruments, documents and certificates as are required
to be delivered by SELLER or its representatives pursuant to the
provisions of this Agreement
(c) The PURCHASER shall deliver, or cause to be delivered,
to SELLER such instruments, documents and certificates as are required
to be delivered by the PURCHASER or its representatives to reflect the
cancellation of indebtedness pursuant to the provisions of this
Agreement and to reflect the reduction of the obligation owed by
SELLER to PURCHASER.
ARTICLE 4
TERMINATION
4.1 Termination. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement may be terminated and the
transactions contemplated hereby may be
abandoned at any time prior to delivery of the Purchase Price solely
by the mutual consent of all of the parties.
ARTICLE 5
MISCELLANEOUS
5.1 Partial Invalidity. If any term or provision of this
Agreement or the application thereof to any person or circumstances
shall, to any extent, be invalid or unenforceable" the remainder of
this Agreement or the application of such term or provision to persons
or circumstances other than those to which it is held invalid or
unenforceable, shall not be affected thereby, and each such term and
provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.
5.2 Waiver. No waiver of any breach of any covenant or
provision herein contained shall be deemed a waiver of any preceding
or succeeding breach thereof, or of any other covenant or provision
herein contained. No extension of time for performance of any
obligation or act shall be deemed and extension of the time for
performance of any other obligation or act.
5.3. Notices. All notices or other communications required or
permitted hereunder shall be in writing, and shall be sent by
registered or certified mail, postage prepaid, return receipt
requested, and shall be deemed received upon mailing to the addresses
set forth on the signature page. Notice of change of address shall be
given by written notice in the manner detailed in this subparagraph
5.3.
5.4 Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the permitted successors and assigns of
the parties hereto.
5.5 Attorneys' Fees. In the event of the bringing of any
action or suit by a party hereto against another party here- under by
reason of any breach of any of the covenants, agreements or provisions
on the part of the other party arising out of this Agreement, then in
that event the prevailing party shall be entitled to have and recover
of and from the other party all costs and expenses of the action or
suit, including actual attorney's fees, accounting fees, and other
professional fees resulting therefrom.
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6 (Ex. 10.3)
5.6 Entire Agreement. This Agreement is the final expression
of, and contains the entire agreement between, the parties with
respect to the subject matter hereof and supersedes all prior
understandings with respect thereto. This Agreement may not be
modified, changed, supplemented or terminated, nor may any obligations
hereunder be waived, except by written instrument signed by the party
to be charged or by his agent duly authorized in writing or as
otherwise expressly permitted herein. The
parties do not intend to confer any benefit hereunder on any person,
firm or corporation other than the parties hereto.
5.7 Time is of the Essence. The parties hereby acknowledge and
agree that time is strictly of the essence with respect to each and
every term, condition, obligation and provision hereof and that
failure to timely perform any of the terms, conditions, obligations or
provisions hereof by either party shall constitute a material breach
of and non-curable (but waivable) default under this Agreement by the
party so failing to perform.
5.8 Headings. Headings at the beginning of each paragraph are
solely for the convenience of the parties and are not a part of the
Agreement. Whenever required by the context of this Agreement, the
singular shall include the plural and the masculine shall include the
feminine. This Agreement shall not be construed as if it had been
prepared by one of the parties, but rather as if both parties had
prepared the same. Unless otherwise indicated, all references to
paragraphs and subparagraphs are to this Agreement. In the event the
date on which any party is required to take any action under the terms
of this Agreement is not a business day, the action shall be taken on
the next succeeding day.
5.9 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be an original and all of which
taken together shall constitute one instrument.
5.10 Choice of Law. The parties hereto expressly agree that
this Agreement shall be governed by, interpreted under, and construed
and enforced in accordance with the laws of the Nevada.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement and deemed it executed and delivered in Hong Kong.
FUTURE EDUCATIONAL SYSTEMS, INC.
/SIGNATURE/
By: _______________________________
Nenita Roses
President
(Signatures Continued on Next Page)
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7 (Ex. 10.3)
ASEAN COMMERCIAL HOLDINGS, LIMITED
/SIGNATURE/
By: _______________________________
Xxxxxxx Xxxxxxxxx
Its: President
0000 Xxxx xx Xxxxxxx Tower
00 Xxxxxxxx Xxxx
Xxxxxxx Xxxx Xxxx
Xx this ___ day of July in the year 2001 before me,
_______________________________________, a justice, notary, commissioner
or other person authorized, personally appeared Xxxxxxx Xxxxxxxxx,
proved to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument, the
person or the entity upon behalf of which the person acted, executed the
instrument.
Declared at _________________, this ____ day of July, 2001.
Before me
_____________________________
[Signature and designation]
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