1 (EX 1.1)
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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(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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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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(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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(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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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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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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