Exhibit 2.2
COMMON STOCK PURCHASE AGREEMENT
This AGREEMENT (this "Agreement") is entered into as of the 30th day of
September, 2004, by and among Xxxxxx Capital Corporation, having an address at
0000 Xxxx XxXxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000, Tudor
Investments LTD Profit Sharing Plan, having an address at 0000 Xxxxx Xxxxx,
Xxxxxxx, Xxxxxxx 00000 (each, a "Seller" and collectively, the "Sellers"), the
purchasers listed on Annex A attached hereto (collectively referred to herein as
the "Purchasers") and Creative Vistas, Inc., an Arizona corporation having an
address at 0000 Xxxx XxXxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000 (the
"Company" or "Creative Vistas"). Certain capitalized terms used herein are
defined in Section 9.12 hereof.
WHEREAS, there are 10,000,000 shares of the common stock, no par value per
share, of the Company ("Common Stock") issued and outstanding as of the date
hereof;
WHEREAS, the Purchasers desires to purchase, and the Sellers desire to
sell 9,500,000 shares (the "Shares") of Common Stock owned by Sellers as more
specifically set forth on Annex B hereto, upon the terms and conditions hereof,
representing approximately 95% of the issued and outstanding Common Stock on a
fully diluted basis as of the date hereof;
WHEREAS, in order to induce the Sellers to enter into this Agreement,
Purchasers have deposited xxxxxxx money in the amount of $25,000 ("Escrow
Deposit") into an escrow account with Xxxx X. Xxxx, P.C., a New York
Professional Corporation (the "Escrow Agent"); and
WHEREAS, in order to induce the Purchasers to buy the Shares, the Company
and the Sellers have agreed to make certain representations, warranties and
covenants hereunder.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Purchasers, Sellers and the Company hereby agree as
follows:
ARTICLE 1
Sale of the Shares
Section 1.1 Sale of the Shares. Subject to the terms and conditions
hereof, the Sellers will sell and deliver to the Purchasers and the Purchasers
will purchase from the Sellers, the Shares for an aggregate purchase price of
three hundred thousand U.S. dollars ($300,000), which price shall include the
Escrow Deposit (the "Purchase Price").
Section 1.2 Release of Escrow Deposit. Upon the signing of this Agreement
by the parties hereto, the Escrow Deposit shall be irrevocably released to the
Sellers and shall be nonrefundable to Purchasers.
ARTICLE 2
Closing and Delivery
Section 2.1 Closing Date. The closing of the purchase and sale of the
Shares (the "Closing") shall be held at such a date (the "Closing Date") and
time as determined at the mutual discretion of the Sellers and the Purchasers,
provided however that the Closing shall take place within ten (10) days after
the conditions precedent contained in Article 7 below have been satisfied. The
Closing shall take place at the offices of Xxxxxxx Xxxxxxxxx LLP, located at 000
Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000.
Section 2.2 Delivery at Closing. At the Closing:
(a) the Sellers shall cause the Company to deliver to the Purchasers
stock certificates representing the Shares in the Purchasers' names, in the
individual amounts set forth on Annex A hereto, and evidence of the surrender
and cancellation of the stock certificates in the names of the Sellers as listed
on Annex B hereto; and
(b) the Purchasers shall deliver the Purchase Price less the amount
of the Escrow Deposit, to the Company in the form of certified bank checks or
wire transfer of immediately available funds in the amounts and in the names as
set forth on Annex B hereto.
ARTICLE 3
Representations and Warranties of the Sellers and the Company
Except as set forth herein, the Company and the Sellers hereby,
individually and separately, represent and warrant to the Purchasers that:
Section 3.1 Organization; Capitalization. Creative Vistas is a duly
organized and validly existing corporation in good standing under the laws of
the State of Arizona, authorized to issue an aggregate of 100,000,000 shares of
no par value Common Stock and 50,000 shares of no par value Preferred Stock. On
the Closing Date, there will be issued and outstanding no more than 10,000,000
shares of Common Stock, all of which such issued and outstanding shares will be
validly issued, fully paid and nonassessable. On the Closing Date, there will be
issued and outstanding no shares of Preferred Stock. Except as contemplated by
this Agreement, on the Closing Date there will be no issued or outstanding
securities and no issued or outstanding options, warrants or other rights, or
commitments or agreements of any kind, contingent or otherwise, to purchase or
otherwise acquire capital stock of Creative Vistas or any issued or outstanding
securities of any nature convertible into capital stock other than the
10,000,000 shares of Common Stock which are currently outstanding. There is no
proxy or any other agreement, arrangement or understanding of any kind
authorized, effective or outstanding which restricts, limits or otherwise
affects the right to vote any shares of Common Stock. No shares of capital stock
of Creative Vistas were issued in violation of the preemptive rights of any
person or entity.
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Section 3.2 Binding Agreement. This Agreement and the transactions
contemplated hereby have been duly approved by the Board of Directors of
Creative Vistas. This Agreement has been duly executed and delivered by Creative
Vistas and the Sellers and constitutes the legal, valid and binding obligation
of Creative Vistas and the Sellers enforceable against each of them in
accordance with the terms hereof, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
relating to or affecting the enforcement of rights hereunder or general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Sellers are the lawful owners of the Shares,
free and clear of all security interests, liens, encumbrances, equities and
other charges. Except for an aggregate of 387,391 shares of Common Stock, the
Sellers represent that they do not beneficially own any other shares of Common
Stock other than those Shares being sold hereby.
Section 3.3 Recent Business Operations. The business of Creative Vistas
since its reorganization in 1996 has been limited to the search for an
acquisition or merger partner and certain transactions described in its filings
with the Commission (as defined below).
Section 3.4 Foreign Qualifications. Creative Vistas is, and on the Closing
Date will be, duly authorized, qualified and licensed under any and all
applicable laws, regulations, ordinances or orders of public authorities to
carry on its business in the places and in the manner as presently conducted.
Section 3.5 Subsidiaries. Creative Vistas has, and immediately prior to
the Closing, will have, no Subsidiaries other than A.C. Technical Acquisition
Corp. ("Canco").
Section 3.6 SEC Reports; Financial Statements. (a) The Company has filed
all reports required to be filed by it under the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including
pursuant to Section 13(a) or 15(d) thereof, since May 2001 (the foregoing
materials being collectively referred to herein as the "SEC Reports") on a
timely basis or has received a valid extension of such time of filing and has
filed any such SEC Reports prior to the expiration of any such extension. The
Sellers have identified and made available to the Purchasers a copy of all SEC
Reports filed within the 10 days preceding the date hereof. As of their
respective dates, the SEC Reports complied in all material respects with the
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Securities and Exchange Commission (the "Commission")
promulgated thereunder, and, to the knowledge of the Company and the Sellers,
none of the SEC Reports, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and regulations
of the Commission with respect thereto as in effect at the time of filing. Such
financial statements (the "Creative Vistas Financial Statements") have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis during the periods involved ("GAAP"), except as may be
otherwise specified in such financial statements or the notes thereto, and
fairly present in all material respects the financial position of the Company
and its consolidated subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended, subject, in the
case of unaudited statements, to normal, immaterial, year-end audit adjustments.
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(b) Except as set forth on Schedule 3.6(b) attached hereto, since
the date of the filing of its most recently filed periodic report under the
Exchange Act: (i) there has been no event, occurrence or development that has
had or that could result in a Material Adverse Effect (as defined in Section
9.12 hereof); (ii) the Company has not incurred any liabilities (contingent or
otherwise) or amended any material term of any outstanding security; (iii) the
Company has not altered its method of accounting or the identity of its
auditors; (iv) the Company has not declared or made any dividend or distribution
of cash or other property to its stockholders or purchased, redeemed or made any
agreements to purchase or redeem any shares of its capital stock; (v) the
Company has not issued any equity securities to any officer, director or
Affiliate (as defined in Section 9.12 hereof) of the Company, any creation or
other incurrence by Creative Vistas of any lien on any material asset; (vi) the
Company has not made any loan, advance or capital contributions to or investment
in any Person (as defined in Section 9.12 hereof); (vii) the Company has not
entered into any transaction or commitment made, or any contract or agreement
entered into, by Creative Vistas relating to its business or any of its assets
(including the acquisition or disposition of any assets) or any relinquishment
by Creative Vistas of any contract or other right; (viii) the Company has not
granted any severance or termination pay to any current or former director,
officer or employee of Creative Vistas, or increased the benefits payable under
any existing severance or termination pay policies or employment agreements or
entered into any employment, deferred compensation or other similar agreement
(or any amendment to any such existing agreement) with any current or former
director, officer or employee of Creative Vistas; (ix) the Company has not
established, adopted or amended (except as required by applicable law) any
collective bargaining, bonus, profit sharing, thrift, pension, retirement,
deferred compensation, compensation, stock option, restricted stock or other
benefit plan or arrangement covering any current or former director, officer or
employee of Creative Vistas; (x) the Company has not increased the compensation,
bonus or other benefits payable or otherwise made available to any current or
former director, officer or employee of Creative Vistas; (xi) the Company has
not made any tax election or any settlement or compromise of any tax liability,
in either case that is material to Creative Vistas; and (xii) the Company has
not entered into any transaction by the Company not in the ordinary course of
business, other than with respect to that certain stock purchase agreement,
dated as of September 29, 2004, by and among the Company, Canco, AC Technical
Systems, Ltd. ("ACT") and the shareholders of ACT (the "ACT Stock Purchase
Agreement").
Section 3.7 No Adverse Changes. Except as set forth on Schedule 3.7
attached hereto, there has not been, and on the Closing Date there will not have
been, any material change in the financial condition of Creative Vistas from
that set forth in the Creative Vistas Financial Statements included in its most
recently filed periodic report under the Exchange Act except for (i)
transactions in the ordinary course of business, (ii) transactions relating to
this Agreement and the ACT Stock Purchase Agreement, and (iii) the incurring of
expenses and liabilities relating to this Agreement and the consummation of the
transactions contemplated hereby.
Section 3.8 Liabilities. Except as set forth on Schedule 3.8 attached
hereto, there are, and on the Closing Date will be, no liabilities (including,
but not limited to, tax liabilities) or claims against Creative Vistas (whether
such liabilities or claims are contingent or absolute, direct or indirect,
accrued or unaccrued and matured or unmatured) not appearing on the Creative
Vistas Financial Statements included in its most recently filed periodic report
under the Exchange Act, except for liabilities for expenses incurred relating to
this Agreement and the consummation of the transactions contemplated hereby.
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Section 3.9 Taxes. (a) Creative Vistas has (i) duly filed with the
appropriate taxing authorities all tax returns required to be filed by or with
respect to its business, or are properly on extension and all such duly filed
tax returns are true, correct and complete in all material respects, and (ii)
paid in full or made adequate provisions for on its balance sheet (in accordance
with GAAP) all Taxes (as defined in Section 9.12 hereof) shown to be due on such
tax returns. There are no liens for Taxes upon the assets of Creative Vistas
except for statutory liens for current Taxes not yet due and payable or which
may thereafter be paid without penalty or are being contested in good faith.
Creative Vistas has not received any notice of audit, is not undergoing any
audit of its tax returns, or has received any notice of deficiency or assessment
from any taxing authority with respect to liability for Taxes of its business
which has not been fully paid or finally settled. There have been no waivers of
statutes of limitations by Creative Vistas with respect to any tax returns.
Creative Vistas has not filed a request with the Internal Revenue Service for
changes in accounting methods within the last three years which change would
affect the accounting for tax purposes, directly or indirectly, of its business.
Creative Vistas has not executed an extension or waiver of any statute of
limitations on the assessment or collection of any Taxes due (excluding such
statutes that relate to years currently under examination by the Internal
Revenue Service or other applicable taxing authorities) that is currently in
effect.
Section 3.10 Assets. Creative Vistas has, and on the Closing Date will
have, no fixtures, furniture, equipment, inventory, accounts receivable or other
assets.
Section 3.11 Contracts. Except as set forth on Schedule 3.11 attached
hereto, and other than with respect to this Agreement and the ACT Stock Purchase
Agreement, Creative Vistas has, and on the Closing Date will have, no contracts,
written or oral, to which it is, or on the Closing Date will be, a party.
Section 3.12 No Conflicts. The execution and delivery by Creative Vistas
and the Sellers of this Agreement, the consummation and performance of the
transactions herein contemplated and compliance with the terms of this Agreement
by Creative Vistas and the Sellers will not conflict with, result in a breach of
or constitute a default under: (i) any indenture, mortgage, deed of trust or
other agreement, instrument or contract to which Creative Vistas or any Seller
is now a party or by which it or any of its assets or properties is bound; (ii)
the Articles of Incorporation or the Bylaws of Creative Vistas, in each case as
amended; or (iii) any law, order, rule, regulation, writ, injunction, judgment
or decree of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over Creative Vistas or any Seller or any of their
respective business or properties.
Section 3.13 Legal Proceedings. There are, and on the Closing Date there
will be, no legal, administrative, arbitral or other proceedings, claims,
actions or governmental investigations of any nature pending or to Creative
Vistas' knowledge threatened, against Creative Vistas, including, but not
limited to any shareholder claims or derivative actions, or challenging the
validity or propriety of the transactions contemplated by this Agreement, and,
to Creative Vistas' best knowledge, there is no reasonable basis for any
proceeding, claim, action or governmental investigation against Creative Vistas.
Creative Vistas is not, to its knowledge, a party to any order, judgment or
decree which will, or might reasonably be expected to, adversely affect the
business, operations, properties, assets or financial condition of Creative
Vistas.
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Section 3.14 Certain Transactions. Except as contemplated hereby or as set
forth on Schedule 3.14, there have been, and from the date hereof to the Closing
Date, there will be: (i) no salaried or otherwise compensated employees and no
bonuses paid to any officer or director of Creative Vistas; (ii) no loans made
to or transactions with any officer or director of Creative Vistas; (iii) no
dividends or distributions declared or paid by Creative Vistas; and (iv) no
purchase by Creative Vistas or, to the knowledge of the Company and the Sellers,
any third party, of any of the Common Stock (other than pursuant to open market
transactions).
Section 3.15 Issuances of Securities. As of the date hereof, Creative
Vistas is not committed to issue, and from the date hereof to the Closing Date
will not issue or commit itself to issue, any shares of capital stock or any
options, rights, warrants, or other securities convertible into shares of its
capital stock.
Section 3.16 Intellectual Property. Creative Vistas have no patents,
patent applications, trademarks, trademark registrations, trade names,
copyrights, copyright registrations or applications therefor or other
intellectual property. Creative Vistas and the Sellers have no knowledge of any
infringements by Creative Vistas of any third party's intellectual property.
Section 3.17 Compliance with Laws. Creative Vistas has, and on the Closing
Date will have, in all material respects, operated its business and conducted
its affairs in compliance with all applicable laws, rules and regulations,
except where the failure to so comply did not have and would not be expected to
have a Material Adverse Effect on its business or property. To the best of its
knowledge, Creative Vistas is not in violation of any federal, state or local
environmental law or regulation.
Section 3.18 Related Party Transactions. Except as set forth on Schedule
3.18 attached hereto, on the Closing Date, there will be no loans, leases,
commitments, arrangements or other contracts of any kind or nature outstanding
between (i) Creative Vistas and (ii) any officer, shareholder or director of
Creative Vistas or any person related to or affiliated with any officer,
shareholder or director of Creative Vistas, other than with respect to this
Agreement and the ACT Stock Purchase Agreement.
Section 3.19 Employee Benefit Plans. Creative Vistas has no pension plan,
profit sharing or similar employee benefit plan.
Section 3.20 Consents. Except for the consent and approval of the Board of
Directors of Creative Vistas of this Agreement and the ACT Stock Purchase
Agreement, no consents or approvals of, or filings or registrations with, any
third party or any public body or authority are necessary in connection with the
execution and delivery by Creative Vistas and the Sellers of this Agreement and
the consummation of transactions contemplated hereby. Creative Vistas and each
Seller has, and on the Closing Date will have, full power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby.
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Section 3.21 Finder's Fees. No brokerage or finder's fees or commissions
are or will be payable by the Company to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by this Agreement, and neither the
Company nor any Seller has taken any action that would cause any Purchaser to be
liable for any such fees or commissions. The Company agrees that the Purchasers
shall have no obligation with respect to any fees or with respect to any claims
made by or on behalf of any Person for fees of the type contemplated by this
Section with the transactions contemplated by this Agreement.
Section 3.23 Employees. Except as set forth in its filings with the
Commission, Creative Vistas has no employees.
Section 3.24 Disclosure. The Company and each Seller confirms that neither
it nor any other Person acting on its behalf has provided any of the Purchasers
or its agents or counsel with any information that constitutes or might
constitute material, nonpublic information. The Company and each Seller
understands and confirms that the Purchasers will rely on the foregoing
representations in effecting transactions in securities of the Company. All
disclosure provided to the Purchasers regarding the Company, its business and
the transactions contemplated hereby, including the schedules to this Agreement,
furnished by or on behalf of the Company and the Sellers with respect to the
representations and warranties made herein are, to the knowledge of the Company
and the Sellers, true and correct with respect to such representations and
warranties and, to the knowledge of the Company and the Sellers, do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The Company and each
Seller acknowledges and agrees that the Purchasers have not made, nor are the
Purchasers making any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth herein.
Section 3.25 Registration. The Common Stock is, and at the Closing Date
will be, validly registered pursuant to Section 12(g) of the Securities Exchange
Act of 1934, as amended.
Section 3.26 Internal Accounting Controls; Xxxxxxxx-Xxxxx Act of 2002. The
Company is in compliance with the requirements of the Xxxxxxxx-Xxxxx Act of 2002
applicable to it as of the date hereof. The Company maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance
with management's general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The
Company has established disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such
disclosures controls and procedures to ensure that material information relating
to the Company, is made known to the certifying officers by others within those
entities, particularly during the period in which the Company's Form 10-KSB or
10-QSB, as the case may be, is being prepared. The Company's certifying officers
have evaluated the effectiveness of the Company's controls and procedures as of
the date of its most recently filed periodic report (such date, the "Evaluation
Date"). The Company presented in its most recently filed periodic report the
conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date.
Since the Evaluation Date, there have been no significant changes in the
Company's internal controls (as such term is defined in Item 307(b) of
Regulation S-K under the Exchange Act) or, to the Company's knowledge, in other
factors that could significantly affect the Company's internal controls.
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Section 3.27 Trading With the Enemy Act; Patriot Act. To the knowledge of
the Company and the Sellers, no sale of the Company's securities by the Company
nor the Company's use of the proceeds from such sale has violated the Trading
with the Enemy Act, as amended, or any of the foreign assets control regulations
of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or any enabling legislation or executive order relating thereto.
Without limiting the foregoing, the Company (a) is not a person whose property
or interests in property are blocked pursuant to Section 1 of Executive Order
13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079
(2001)) and (b) to the knowledge of the Company and the Sellers, does not engage
in any dealings or transactions, or be otherwise associated, with any such
person. The Company is in compliance with the USA Patriot Act of 2001 (signed
into law October 26, 2001).
Section 3.28 Registration Rights. No Person has any right to cause the
Company to effect the registration under the Securities Act of any securities of
the Company.
Section 3.29 Charter Documents. The charter documents of the Company have
not been altered since its incorporation, except as filed in the record books of
the Company and delivered to the Purchasers.
Section 3.30. Corporate Minute Books. The corporate minute books of the
Company are complete and the minutes and consents contained therein accurately
reflect the actions that were taken at a duly called and held meeting or by
consent without a meeting. All actions by the Company which required director or
shareholder approval are reflected on the corporate minute books of the Company.
The Company is not in violation or breach of, or in default with respect to, any
term of its Articles of Incorporation or by-laws.
ARTICLE 4
Representations of the Purchasers
The Purchasers each represent and warrant to the Company and the Sellers,
each only as to itself, as follows:
Section 4.1 Execution and Delivery; No Violation. The execution, delivery
and performance by the Purchasers of this Agreement are within the Purchasers'
powers and do not violate any charter or bylaw, any contractual restriction
contained in any agreement, or any order, judgment, decree, law or regulation,
which binds or affects or purports to bind or affect the Purchasers.
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Section 4.2 Binding Effect. This Agreement, when executed and delivered by
the Purchasers shall be irrevocable and will constitute the legal, valid and
binding obligations of the Purchasers enforceable against the Purchasers in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, moratorium and other laws of general application affecting
enforcement of creditors' rights generally.
Section 4.3 Investment Purpose. The Purchasers understand that no federal
or state agency has made any finding or determination regarding the fairness of
the Shares for investment, or any recommendation or endorsement of an investment
in the Shares. Each of the Purchasers hereby represents that it is purchasing
the Shares for its own account, with the intention of holding the Shares, with
no present intention of dividing or allowing others to participate in this
investment or of reselling or otherwise participating, directly or indirectly,
in a distribution of the Shares, and shall not make any sale, transfer, or
pledge thereof without registration under the Securities Act and any applicable
securities laws of any state unless an exemption from registration is available
under those laws.
Section 4.4 Investment Representation. Each Purchaser represents he, if an
individual, has adequate means of providing for his or her current needs and
personal and family contingencies and has no need for liquidity in this
investment in the Shares. Each Purchaser represents that he is an "Accredited
Investor" as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act. Each Purchaser has no reason to anticipate any material change
in his or her personal financial condition for the foreseeable future. Each
Purchaser is financially able to bear the economic risk of this investment,
including the ability to hold the Shares indefinitely or to afford a complete
loss of his, her or its investment in the Shares. Each Purchaser represents that
such Purchaser's overall commitment to investments which are not readily
marketable is not disproportionate to the Purchaser's net worth, and the
Purchaser's investment in the Shares will not cause such overall commitment to
become excessive.
Section 4.5 Opportunity to Ask Questions. Each Purchaser has had a full
and fair opportunity to make inquiries about the terms and conditions of this
Agreement, to discuss the same and all related matters with his own independent
counsel, his own accountants and tax advisers. The Purchasers have been given
the opportunity to ask questions of, and receive answers satisfactory to
Purchasers from, the Company concerning the terms and conditions of this
Agreement and to obtain such additional written information about Creative
Vistas to the extent that Company possesses such information or can acquire it
without unreasonable effort or expense. Each Purchaser further confirms that all
documents requested by it have been and remain available for inspection or
copying and that such Purchaser has been supplied with all of the additional
information concerning this investment that has been requested by such
Purchaser. Notwithstanding the foregoing, each Purchaser has had the opportunity
to conduct his/her own independent investigation. Each Purchaser acknowledges
that he has received no representations or warranties from the Company or
Creative Vistas in making this investment decision other than as expressly set
forth herein.
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ARTICLE 5
Covenants of the Company
Section 5.1 Listing of Common Stock. The Company and the Sellers shall use
their best efforts to cause the Common Stock of Creative Vistas to continue to
be approved for listing on the OTC Bulletin Board prior to the Closing.
Section 5.2 Lockup Agreement. Sellers agree not to transfer shares of
Common Stock beneficially owned by them, other than the Shares being sold
hereby, from the date hereof until a date that is sixty (60) days from the date
of the Closing.
ARTICLE 6
Covenants of the Parties
The parties hereto agree that:
Section 6.1 Public Announcements. The Company and Purchasers shall consult
with each other before issuing any press release or making any public statement
with respect to this Agreement or the transactions contemplated hereby or the
ACT Stock Purchase Agreement or the transactions contemplated thereby and,
except as may be required by applicable law, will not issue any such press
release or make any such public statement prior to such consultation and without
the consent of the other parties.
Section 6.2 Notices of Certain Events. In addition to any other notice
required to be given by the terms of this Agreement, each of the parties shall
promptly notify the other parties hereto of:
(a) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with any of the
transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge threatened against, relating to or involving or
otherwise affecting such party or that relate to the consummation of the
transactions contemplated by this Agreement.
Section 6.3 Access to Information. Following the date hereof, until
consummation of all transactions contemplated hereby, the Company and the
Sellers will give to the Purchasers, their counsel, financial advisers, auditors
and other authorized representatives reasonable access to the offices,
properties, books and records, financial and other data and information of the
Company as Purchasers and their representatives may reasonably request.
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ARTICLE 7
Conditions Precedent
Section 7.1 Conditions of Obligations of the Purchasers. The obligations
of the Purchasers pursuant to this Agreement are subject to the satisfaction of
the following conditions, any or all of which may be waived in whole or in part
by the Purchasers:
(a) Representations and Warranties. Each of the representations and
warranties of the Company and the Sellers set forth in this Agreement shall be
true and correct in all material respects as of the date of this Agreement and
(except to the extent such representations and warranties speak as of an earlier
date) as of the Closing Date as though made on and as of the Closing Date;
(b) Secretary's Certificate. The Secretary of Creative Vistas shall
deliver to the Purchasers at the Closing a certificate certifying: (i) that
attached thereto is a true and complete copy of Creative Vistas' Articles of
Incorporation, as amended, as in effect at the Closing; and (ii) that attached
thereto is a true and complete copy of its By-laws as in effect at the Closing;
(c) Good Standing Certificates. The Company shall have furnished the
Purchasers with a good standing and existence certificate for Creative Vistas in
its jurisdiction of incorporation and any jurisdictions in which it is qualified
to do business as the Purchasers reasonably request;
(d) Certified List of Record Holders. The Purchasers shall have
received a current certified list from the Creative Vistas' transfer agent of
the holders of record of Creative Vistas' Common Stock;
(e) Board of Directors Resolutions. Delivery of resolutions of the
Board of Directors of Creative Vistas approving the transactions contemplated
herein; and
(f) The closing of the ACT Stock Purchase Agreement shall have
occurred.
Section 7.2 Conditions of Obligations of the Sellers. The obligations of
the Sellers pursuant to this Agreement are subject to the satisfaction of the
following conditions, which may be waived in whole or in part by Company:
(a) Each of the representations and warranties of the Purchasers set
forth in this Agreement shall be true and correct in all material respects as of
the date of this Agreement and (except to the extent such representations and
warranties speak as of an earlier date) as of the Closing Date as though made on
and as of the Closing Date;
(b) The Purchasers shall have furnished Sellers with certified
copies of all necessary corporate actions, if applicable, approving the
execution, delivery and performance of this Agreement by Purchasers;
11
(c) The Sellers shall have received the Purchase Price in accordance
with Section 2.2(b); and
(d) The closing of the ACT Stock Purchase Agreement shall have
occurred.
ARTICLE 8
Termination
Section 8.1 Termination. This Agreement may be terminated and the sale of
Shares may be abandoned at any time prior to the Closing:
(a) by mutual written consent of the parties hereto;
(b) by either the Sellers or Purchasers if the Closing shall not
have occurred on or before September 30, 2004 (unless the failure to consummate
the transactions by such date shall be due to the action or failure to act of
the party seeking to terminate this Agreement);
(c) by the Purchasers if: (i) Company or any Seller shall have
failed to comply in any material respect with any of the covenants or agreements
contained in this Agreement to be complied with or performed by Company or such
Seller; or (ii) any representations and warranties of Company or any Seller
contained in this Agreement shall not have been true when made or on and as of
the Closing Date as if made on and as of Closing Date (except to the extent it
relates to a particular date); or
(d) by the Company or the Sellers if: (i) the Purchasers shall have
failed to comply in any material respect with any of the covenants or agreements
contained in this Agreement to be complied with or performed by them; or (ii)
any representations and warranties of the Purchasers contained in this Agreement
shall not have been true when made or on and as of the Closing Date.
Section 8.2 Effect of Termination. In the event of the termination of this
Agreement pursuant to this Article 8, all further obligations of the parties
under this Agreement shall forthwith be terminated without any further liability
of any party hereto to the other parties hereto. Nothing contained in this
Section 8.2 shall relieve any party hereto from liability for any breach of this
Agreement.
ARTICLE 9
Miscellaneous
Section 9.1 Notices. All notices, requests and other communications to any
party hereunder shall be in writing and either delivered personally, telecopied
or sent by certified or registered mail, postage prepaid:
12
If to the Company or Sellers: c/x Xxxxxx Capital Corporation
0000 Xxxx XxXxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxx
With a copy to: Squire, Xxxxxxx & Xxxxxxx L.L.P.
Two Renaissance Square
Suite 2700
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxxxxxx X. Xxxxxxx
If to the Purchasers: As setforth opposite such
Purchasers' names on the
signature pages hereto.
With a copy to: Xxxxxxx Xxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx
or such other address or fax number as such party may hereafter specify for the
purpose by notice to the other parties hereto. All such notices, requests and
other communications shall be deemed received on the date delivered personally,
telecopied or, if mailed, five business days after the date of mailing if
received prior to 5 p.m. in the place of receipt and such day is a business day
in the place of receipt. Otherwise, any such notice, request or communication
shall be deemed not to have been received until the next succeeding business day
in the place of receipt.
Section 9.2 Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed, in the case of an
amendment, by the Company, the Sellers and Purchasers; or in the case of a
waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 9.3 Fees and Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
13
Section 9.4 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto, but any such transfer or
assignment will not relieve the appropriate party of its obligations hereunder.
Section 9.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the principles of conflicts of law thereof.
Section 9.6 Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in
any federal or state court located in the City of New York, Borough of
Manhattan, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 9.1. shall be deemed
effective service of process on such party.
Section 9.7 Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto. No provision of
this Agreement is intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder.
Section 9.8 Entire Agreement. This Agreement and any Annexes and Schedules
hereto constitute the entire agreement between the parties with respect to the
subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter hereof.
Section 9.9 Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
Section 9.10 Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any parties. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
14
Section 9.11 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof in addition to any other
remedy to which they are entitled at law or in equity.
Section 9.12 Definition and Usage.
For purposes of this Agreement:
"Affiliate" means, with respect to any Person, any other Person, or
indirectly controlling, controlled by, or under common control with such Person.
"Material Adverse Effect" means any effect or change that is or
would be materially adverse to the business, operations, assets, prospects,
condition (financial or otherwise) or results of operations of an entity and any
of its Subsidiaries, taken as a whole.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Subsidiary" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at any time directly or indirectly owned by such Person.
"Taxes" means any and all federal, state, local, foreign or other
taxes of any kind (together with any and all interest, penalties, additions to
tax and additional amounts imposed with respect thereto) imposed by any taxing
authority, including, without limitation, taxes or other charges on or with
respect to income, franchises, windfall or other profits, gross receipts, sales,
use, capital stock, payroll, employment, social security, workers' compensation,
unemployment compensation, or net worth, and taxes or other charges in the
nature of excise, withholding, ad valorem or value added.
Section 9.13 Survival. The representations and warranties herein shall
survive the Closing and delivery of the Shares.
Section 9.14 Further Assurances. From time to time, each party hereto will
execute such additional instruments and take such actions as may be reasonably
required to carry out the intent and purposes of this Agreement.
Section 9.15 Review of Agreement. Each party hereto acknowledges that it
has had time to review this Agreement and, as desired, consult with counsel. In
the interpretation of this Agreement, no adverse presumption shall be made
against any party on the basis that it has prepared, or participated in the
preparation of, this Agreement.
[SIGNATURE PAGE FOLLOWS]
15
IN WITNESS WHEREOF, each of the following individuals has caused this
Agreement to be signed, and each party that is not an individual has caused this
Agreement to be duly executed under seal by its respective authorized officers,
all as of the day and year first above written.
PURCHASERS:
/s/ Xxxxx Xxxxxxxxxx Address for notice:
----------------------------------- 735-125 Omni Drive
Xxxxx Xxxxxxxxxx Toronto, Ontario,
X0X 0X0, Xxxxxx
/s/ Xxxxxxx Xxxxx
----------------------------------- Address for notice:
Xxxxxxx Xxxxx 00 Xxxxxxxx Xxxxxx
Xxxxxxx Xx X0X 0X0
Xxxxxx
/s/ Xxxxx Xxxxx
----------------------------------- Address for notice:
Xxxxx Xxxxx 000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Malar Trust Inc. Address for notice:
X.X. XXX # 00000
000 Xxxxxxx Xxxxx
By: /s/ Xxxxx Xxxxxxxxxx Scarborough, Ontario
-------------------------------- X0X 0X0, Xxxxxx
Name: Xxxxx Xxxxxxxxxx
Title:
16
SELLERS:
Xxxxxx Capital Corporation
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman, President & CEO
Tudor Investments LTD
Profit Sharing Plan
By: /s/ Xxxxxx Warinke
--------------------------------
Name: Xxxxxx Warinke
Title: Trustee
CREATIVE VISTAS, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: President
17
ANNEX A
PURCHASERS AND ALLOCATION OF
PURCHASE PRICE AND SHARES
NUMBER OF
PURCHASER: SHARES ALLOCATED: PURCHASE PRICE ALLOCATED:
Xxxxx Xxxxxxxxxx 3,694,034 $116,653.71
Xxxxxxx Xxxxx 3,694,034 $116,653.71
Xxxxx Xxxxx 177,313 $5,599.36
Malar Trust Inc. 1,934,619 $61,093.23
--------- ----------
TOTAL: 9,500,000 $300,000
18
ANNEX B
PURCHASE PRICE AND SHARES
PURCHASE PRICE PAYABLE AT
NUMBER OF SHARES CLOSING (NOT INCLUDING ESCROW
SELLER: TO BE SURRENDERED: DEPOSIT):
------ ----------------- --------
Xxxxxx Capital Corporation 4,890,822 $137,500
Tudor Investments LTD Profit 4,609,178 $137,500
--------- --------
Sharing Plan
TOTAL: 9,500,000 $275,000
19
SCHEDULE 3.6(B)
MATERIAL CHANGES
1. On September 27, 2004, the shareholders of the Company approved at a
special meeting of shareholders an amendment to the Articles of
Incorporation of Creative Vistas to eliminate preemptive rights of holders
of the Company's common stock. The amendment was filed with the Arizona
Corporation Commission on September 30, 2004 and is effective as of such
date.
2. During the quarter ended September 30, 2004, Xxxxxx Capital Corporation and
Tudor Investments LTD Profit Sharing Plan, which are the principal
shareholders of Creative Vistas and which funded all the costs and expenses
associated with maintaining the Company, will forgive certain non-interest
bearing promissory notes issued by the Company to such shareholders in the
principal amount of $28,350.
3. During the quarter ended September 30, 2004, the remaining assets of
Creative Vistas in the form of cash will be used to pay legal expenses
incurred in connection with this Agreement.
4. On September 29, 2004, Creative Vistas entered into a Stock Purchase
Agreement by and among the Company, A.C. Acquisition Corp., AC Technical
Systems, Ltd. and the shareholders of AC Technical Systems, Ltd.
20
SCHEDULE 3.7
ADVERSE CHANGES
1. During the quarter ended September 30, 2004, Xxxxxx Capital Corporation and
Tudor Investments LTD Profit Sharing Plan, which are the principal
shareholders of Creative Vistas and which funded all the costs and expenses
associated with maintaining the Company, will forgive certain non-interest
bearing promissory notes issued by the Company to such shareholders in the
principal amount of $28,350.
2. During the quarter ended September 30, 2004, the remaining assets of
Creative Vistas in the form of cash will be used to pay legal expenses
incurred in connection with this Agreement.
SCHEDULE 3.8
LIABILITIES
1. During the quarter ended September 30, 2004, Xxxxxx Capital Corporation and
Tudor Investments LTD Profit Sharing Plan, which are the principal
shareholders of Creative Vistas and which funded all the costs and expenses
associated with maintaining the Company, will forgive certain non-interest
bearing promissory notes issued by the Company to such shareholders in the
principal amount of $28,350.
SCHEDULE 3.11
CONTRACTS
1. During the quarter ended September 30, 2004, Xxxxxx Capital Corporation and
Tudor Investments LTD Profit Sharing Plan, which are the principal
shareholders of Creative Vistas and which funded all the costs and expenses
associated with maintaining the Company, will forgive certain non-interest
bearing promissory notes issued by the Company to such shareholders in the
principal amount of $28,350.
SCHEDULE 3.18
RELATED PARTY TRANSACTIONS
1. During the quarter ended September 30, 2004, Xxxxxx Capital Corporation and
Tudor Investments LTD Profit Sharing Plan, which are the principal
shareholders of Creative Vistas and which funded all the costs and expenses
associated with maintaining the Company, will forgive certain non-interest
bearing promissory notes issued by the Company to such shareholders in the
principal amount of $28,350.
2. During the quarter ended September 30, 2004, the remaining assets of
Creative Vistas in the form of cash will be used to pay legal expenses
incurred in connection with this Agreement.
