1 (EX 1.2)
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT ("Agreement"), dated as of September 28, 2001
by and between FUTURE EDUCATIONAL SYSTEMS, INC., a Nevada corporation
("SELLER"), and XXXXXXXX COMMERCIAL VENTURES, LIMITED, a Belize corporation
("PURCHASER").
WITNESSETH:
WHEREAS, SELLER desires to sell two million six hundred ten thousand and
eight hundred ninety (2,610,890) 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 Two Hundred Sixty One Thousand
and Eighty Nine Dollars ($261,089.00) ("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.
There are no outstanding rights to purchase any additional
shares.
c. SELLER has, or prior to the closing, will furnish to PURCHASER
audited financial statements as of December 31, 2000. All of
said financial statements, (i) are in accordance with SELLER's
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books and records, (ii) present fairly and 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,
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
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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:
(a) 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;
(b) 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
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(c) 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 September 28, 2001 at
Belize City, Belize, or in Costa Rica, 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
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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.
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 as of September 28, 2001.
FUTURE EDUCATIONAL SYSTEMS, INC.
/SIGNATURE/
By: _______________________________
Nenita Roses
President
(signatures continued on next page)
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XXXXXXXX COMMERCIAL VENTURES, LIMITED
/SIGNATURE/
By: _______________________________
Xxxx Xxxxx Dysangco Xxxxxxxx
Address: 00 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx Xxxx, Xxxxxx
I, Xxxx Xxxxx Dysangco Xxxxxxxx, solemnly and sincerely declare that I
have entered into this Stock Purchase Agreement on behalf of Xxxxxxxx
Commercial Ventures, Limited, and I make this solemn declaration
conscientiously believing the same to be true and by virtue of the Oaths and
Declarations Ordinance.
Declare at ____________________, this 28th day of September, 2001.
_______________________________
Xxxx Xxxxx Dysangco Xxxxxxxx
On this 28th day of September in the year 2001 before me,
__________________________, a justice, notary, commissioner or other person
authorized, personally appeared Xxxx Xxxxx Dysangco Xxxxxxxx, 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 28th day of September, 2001.
Before me
_____________________________
[Signature and designation]
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