EXHIBIT 10.7
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of May 24, 1999,
is by and among Corporate Tours and Travel, Inc, a Nevada corporation ("CTOR"),
Xxxxx Xxxxxx, a principal of CTOR (the "CTOR Principal"), Absolut Future Tech,
Inc, a Nevada Corporation ("Absolut"), and the persons Identified in Schedule 1,
representing 100% of the shareholders of Absolut (the "Absolut Shareholders").
WITNESSETH:
WHEREAS, the Absolut Shareholders own all of the issued and outstanding
registered shares of Absolut and desire to sell to CTOR, and CTOR desires to
purchase, all of the registered shares of Absolut.
NOW, THEREFORE, in consideration of the promises, the mutual covenants set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
I. TRANSFER OF SHARES
1.1 Transfer of Shares; Closing. In accordance with the terms and
conditions set forth herein, on the Closing Date (as hereinafter defined), the
Absolut Shareholders shall transfer, convey, assign and deliver, and CTOR shall
purchase, all of the issued and outstanding registered shares (the "Absolut
Shares") of Absolut, $0.0001 par value per share (the "Absolut Stock"), free and
clear of any and all liens, claims and encumbrances whatsoever.
1.2 Consideration, Exchange of Certificates. As of the Closing Date (as
hereinafter defined) and subject to the provisions of Sections 6 and 7, in
exchange for certificates representing the Absolut Shares, the Absolut
Shareholders will receive from CTOR an aggregate consideration of 3,000,000
restricted Common Stock shares of CTOR, $.0001 par value per share (the "CTOR
Shares"). The CTOR Shares shall rank pari passu with the issued and outstanding
shares of CTOR Common Stock.
1.3 The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing"), upon the satisfaction of all of the conditions set
forth in Sections 6 and 7 hereof, or the waiver thereof, shall occur May
,1999 (the "Closing Date").
1.4 Deliveries at Closing. At the Closing, the Absolut Shareholders shall
deliver to CTOR the various certificates, including without limitation stock
certificates representing the Absolut Shares, together with accompanying stock
transfer powers or instruments of assignment, duly endorsed in blank. At the
Closing, CTOR shall deliver to Absolut and the Absolut Shareholders the various
certificates, including without limitation stock certificates representing CTOR
Shares.
II. REPRESENTATIONS AND WARRANTIES OF ABSOLUT
AND THE ABSOLUT SHAREHOLDERS
Absolut and the Absolut Shareholders, jointly and severally, hereby
represent and warrant to CTOR and the CTOR Principal as follows:
2.1 Organization. Absolut and its officers and directors, but not the
Absolut Shareholders represent and warrant to CTOR and CTOR Principal that
Absolut is a corporation duly organized, validly existing and in good standing
under the laws of Nevada. Absolut and the Absolut Shareholders have the power
and authority to enter into and perform the purchase of the CTOR Shares, the
sale of Absolut Stock, and to consummate the transactions contemplated by this
Agreement.
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2.2 Authority. Absolut and the Absolut Shareholders have full power and
authority to enter into this Agreement and to consummate the transactions
provided for herein, and the execution and delivery of this Agreement, and the
other documents and instruments specified herein, and the consummation of the
transactions provided for herein by Absolut and the Absolut Shareholders have
been duly and validly authorized by all necessary action on the part of Absolut
and the Absolut Shareholders and are in compliance with applicable law. This
Agreement constitutes the valid and binding agreement on the part of Absolut and
the Absolut Shareholders, enforceable against them in accordance with its terms.
2.3 Absence of Violations or Conflicts. The execution and delivery of this
Agreement and the consummation by Absolut and the Absolut Shareholders of the
transactions contemplated hereto (a) will not constitute a violation of, be in
conflict with, constitute a default under or result in the creation or
imposition of any security interest, lien or other encumbrance or adverse claim
upon any of Absolut's assets under (i) any contract, agreement, commitment or
understanding to which Absolut or the Absolut Shareholders is a party, to which
either of them is subject or by which either of them is bound, (ii) any
applicable judgment, decree or order of any court or governmental agency or
(iii) any applicable statute, law, rule, regulation, release or other official
pronouncement and (b) will not create, or cause the acceleration of the maturity
of, any debt, obligation or liability of Absolut or the Absolut Shareholders.
2.4 Capital Stock. Absolut and its officers and directors, but not the
Absolut Shareholders, represent and warrant to CTOR and CTOR Principal that the
authorized capital stock of Absolut consists of 50,000,000 shares of Common
Stock, par value U. S. $0.0001 per share, of which, as of May , 1999,
10,000,000 shares of Absolut Common Stock were duly authorized and validly
issued and outstanding, fully paid and nonassessable, and no shares of Absolut
Common Stock were held in the
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treasury of Absolut. Except as set forth on Schedule 2.4, the Absolut
Shareholders is and will be on the Closing Date the record and beneficial owner
and holder of the Absolut Shares, free and clear of any charge, claim, equitable
interest, lien, option, pledge, security interest, right of first refusal, or
restriction of any kind, including any restriction on use, voting, transfer,
receipt of income, or exercise of any other attribute of ownership. Other than
the Absolut Shares, no shares of Absolut Stock have been issued, and Absolut has
no commitments to issue or sell any shares of Absolut Stock or any other
securities or obligations convertible into or exchangeable for, or giving any
person any right to subscribe for or acquire from Absolut, any shares of Absolut
Stock, and no securities or obligations evidencing such rights are outstanding.
III. REPRESENTATIONS AND WARRANTIES
OF CTOR AND THE CTOR PRINCIPAL
CTOR and the CTOR Principal, jointly and severally, hereby represent and
warrant to Absolut and the Absolut Shareholders as follows:
3.1 Organization and Standing; Subsidiaries. CTOR is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and has full corporate power to carry on its business as it is now being
conducted and to own or hold under lease the assets a now owns or holds under
lease and to issue the CTOR Shares, and to consummate the transactions
contemplated by this Agreement. CTOR does not own any subsidiaries.
3.2 Capitalization of CTOR. CTOR's entire authorized capital stock
consists of 50,000,000 shares of CTOR Common Stock, of which 4,100,000 shares
are issued and outstanding; 10,000,000 shares of CTOR Preferred Stock, of which
none are issued or outstanding, and no shares of CTOR Common Stock are held in
the treasury of CTOR. All the issued and outstanding shares
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of CTOR Common Stock have been duly authorized and are validly issued and are
fully paid and non-assessable, free of any preemptive rights, and are owned by
those shareholders in those amounts indicated under their respective names on
Exhibit A attached hereto. Each of the CTOR shareholders has good and marketable
title to CTOR Common Stock owned by him or it, free of any liens, restrictions
or encumbrances of any kind. CTOR is not a party to or bound by any options,
calls, contracts or commitments of any character relating to any issued or
unissued stock or any other equity security issued or to be issued by CTOR. None
of the shares of CTOR Common Stock was issued in violation of the Securities Act
of 1933, as amended, or any regulation or rule promulgated thereunder, or any
other federal or state law relating to the sale and issuance of securities. All
of the shares of CTOR Common Stock were issued pursuant to Rule 504 of the
Securities Act of 1933, as amended (the "1933 Act"), and are thus freely
tradeable securities. None of the shares of CTOR Common Stock are "restricted
securities" within the meaning of Rule 144 of the 1933 Act. As of the Closing,
the CTOR Shares will be duly and validly authorized and issued, fully paid and
nonassessable, and free of any preemptive rights. The sale and issuance of CTOR
Shares will not violate the 1933 Act or any regulation or rule promulgated
thereunder, or any other federal or state law relating to the sale and issuance
of the CTOR Shares. The CTOR Common Stock is not subject to the provisions of
Nevada Revised Statute 78.378 through 78.3793 (the Acquisition of Controlling
Interest Statute).
3.3 Financial Statements. CTOR has delivered to Absolut copies of CTOR's
audited consolidated financial statements for the fiscal years 1996, 1997 and
1998. These financial statements are true and complete in all respects, have
been prepared in accordance with generally accepted accounting principles
consistently followed throughout the period covered by such statements (except
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as may be stated in the explanatory notes to such statements), and present
fairly the consolidated financial position and results of operations of CTOR at
the dates of such statements and for the periods covered thereby.
3.4 No Undisclosed Liabilities. Except as and to the extent reflected or
reserved against in the consolidated balance sheets included within CTOR's
consolidated financial statements referred to in Section 3.3 of this Agreement,
at the date of such statements, CTOR had no liabilities or obligations (whether
accrued, absolute or contingent), of the character which, under generally
accepted accounting principles, should be shown, disclosed or indicated in a
consolidated balance sheet of CTOR or explanatory notes or information
supplementary thereto, including, without limitation, any liabilities resulting
from failure to comply with any law or any federal, state or local tax
liabilities due or to become due whether (a) incurred in respect of or
measured by income for any period prior to the close of business on such dates,
or (b) arising out of transactions entered into, or any state of facts existing
prior thereto.
3.5 Absence of Certain Changes, Events or Conditions. Since December 31,
1998, there has not been any change in CTOR's consolidated financial position,
results of operations, assets, liabilities, net worth or business, other than
changes in the ordinary course of business which have not been materially
adverse. Since December 31, 1998, CTOR has not experienced any event or
condition of any character (whether or not covered by insurance) which has
adversely affected or will or might so affect its respective properties,
businesses, financial positions, results of operations, or net worth.
3.6 Title to Leasehold. The leases and other agreements or instruments
under which CTOR holds, leases or is entitled to the use of any real property or
personal property, are set forth
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in Schedule 3.6, and are in full force and effect and all rentals, royalties or
other payments payable thereunder prior to the date hereof have been duly paid.
All "buy-out" prices under operating or capital leases are shown on Schedule
3.6, regardless as to whether the lessee has any obligation to purchase such
property. True and correct copies of such leases and agreements, together with
all amendments, are attached to this Agreement as part of Schedule 3.6. No
default or event of default exists, and no event which, with notice or lapse of
time or both, would constitute a default, has occurred and is continuing, under
the terms or provisions, express or implied, of any of such lease, agreement or
other instrument or under the terms or provisions of any agreement to which any
of such properties is subject, nor has CTOR received notice of any claim of such
default (whether material or not), nor, has CTOR failed to comply in any respect
with any provision or condition of any such lease, agreement or other
instrument. CTOR has not received a notice of violation of any applicable law,
ordinance, regulation, order or requirement relating to its operations or its
owned or leased properties.
3.7 Title to Assets. CTOR owns and has good, marketable and insurable
title to all of its assets, none of which are subject to any mortgage, pledge,
lien, security interest or other encumbrance.
3.8 Litigation. Except as described on Schedule 3.8, there is no claim,
controversy, legal action, mediation, arbitration, non-insured workers'
compensation claim, litigation, proceeding or governmental investigation pending
or, threatened or in prospect, against or relating to CTOR, its respective
properties or business, or the transactions contemplated by this Agreement. All
litigation and claims identified on Schedule 3.8 are covered by CTOR's insurance
and are being defended by and at the cost of CTOR's insurance carrier. Except as
disclosed on Schedule 3.8, CTOR is not
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subject to or bound by any order of any court, regulatory commission, board or
administrative body entered in any proceeding to which it is a party or of which
CTOR has knowledge.
3.9 Intangible Property. Except as described on Schedule 3.9, CTOR owns
all of the rights in and to all trademarks, service marks, trade names, logos,
processes, systems, inventions, writings, or methods, whether or not patentable
or copyrightable, which are set forth on Schedule 3.9, free of any obligations
to any third parties, free from any security interest or other lien or
encumbrance, and free of the rightful claims of any third party by way of
infringement CTOR has no knowledge of any facts which negatively impacts the
ability of Absolut from obtaining copyrights or trademarks on all otherwise
copyrightable material or the ability of Absolut to obtain worldwide trademark
rights in its products. The conduct of the business of CTOR as now conducted
does not and will not conflict with patents, patent rights, licenses,
trademarks, trademark rights, trade names, trade name rights, service marks,
service xxxx rights, copyrights or trade dress of others in any way likely to
affect adversely the business, assets or condition, financial or otherwise, of
CTOR. Except as described on Schedule 3.9, no other person or entity has
heretofore used or now uses any trademark, trade name or other intangible
property owned by or licensed to CTOR, except as duly licensed by CTOR under an
agreement disclosed in Schedule 3.9. No material infringement of any proprietary
right owned by, or licensed by or to, CTOR known to CTOR.
3.10 [Open]
3.11 Government and Other Consents. No consent, authorization or approval
of, or exemption by, or filing with any governmental, public or self-regulating
body or authority is required by CTOR, the CTOR Principal or any shareholder of
CTOR for consummation of this Agreement or
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any of the instruments or agreements herein referred to, or the taking of any
action herein contemplated.
3.12 Compliance. CTOR has all governmental licenses, permits, approvals
and other authorizations, and have made all filings and registrations, which are
necessary in order to enable them to conduct its business in all respects. CTOR
heretofore has delivered to Absolut Schedule 3.13 which fairly and accurately
summarizes or lists all material licenses, permits, approvals, authorizations
and regulatory matters relating to the business of CTOR. CTOR has complied with,
and is in compliance with, all laws, regulations and ordinances which are
applicable to its business.
3.13 Labor Relations. CTOR has been and is in compliance with all federal
and state laws respecting employment and employment practices, terms and
conditions of employment and wages and hours, and have not engaged in, and are
not engaging in, any unfair labor practice. There is no collective bargaining
agreement which is binding on CTOR, and CTOR has not experienced, and is not
experiencing, any material labor stoppage, concerted activity or other labor
difficulty, and CTOR has no employment or consulting agreements.
3.14 No Conflict with Other Documents. Except as described in Schedule
3.14, neither the execution and delivery of this Agreement nor the carrying out
of the transactions contemplated hereby will result in any violation,
termination or modification of, or be in conflict with, CTOR's charter or
organizational documents or bylaws, any terms of any contract or other
instrument to which CTOR or is a party, or any judgment, decree or order
applicable to CTOR or result in the creation of any lien, charge or encumbrance
upon any of the properties or assets of CTOR.
3.15 Company Authority. The execution, delivery and performance of this
Agreement by CTOR and by the CTOR Principal have been duly authorized and
approved by the Board of
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Directors and shareholders of CTOR and this Agreement is a valid, legally
binding and enforceable obligation of CTOR and the CTOR Principal. This
Agreement, the issuance of the CTOR Common Stock, the purchase of the Absolut
Common Stock and the other transactions contemplated hereunder have been
approved by the Board of Directors and shareholders of CTOR, and all corporate
authorizations required for consummation of the transactions contemplated by
this Agreement have been received and continue to be in full force and effect.
Upon satisfaction of all conditions contained herein, this Agreement will result
in the valid, legally binding and enforceable obligation of CTOR and the CTOR
Principal.
3.16 Contracts. Except as shown on Schedule 3.16, CTOR is not a party to
or subject to: (a) any employment contract with any officer, consultant,
director or employee; (b) any plan or contract or arrangement providing for
bonuses, pensions, options, deferred compensation, retirement payments, profit
sharing, or the like; (c) any contract or agreement with any labor union; (d)
any lease of real or personal property; (e) any agreement for the purchase, sale
or other disposition of any materials, equipment, supplies or inventory; (f) any
instrument creating a lien or evidencing or related to indebtedness for borrowed
money; (g) any franchise, manufacturer's representative, distributorship or
similar agreement; (h) any contract containing covenants not to enter into or
consummate the transactions contemplated hereby or which will be terminated or
modified by the carrying out of such transactions; or (i) any other contract or
agreement not of the type covered by any of the other specific items of this
section. Each of the contracts, instruments, and other documents described on
Schedule 3.16 is valid and in full force and effect, and a true and complete
copy thereof heretofore has been delivered to Absolut. CTOR is not in default,
or alleged to be in default, in any respect under any of the contracts,
instruments, obligations or other documents to which it is a party or by
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which it is bound. Except as shown on Schedule 3.16, the issuance of CTOR Common
Stock and the transactions contemplated by this Agreement will not cause a
default under, or provide any right of termination with respect to, any
contract, instrument, obligation or other document to which CTOR is a party or
by which CTOR is bound. No party with whom CTOR has an agreement is in default
thereunder in any respect.
3.17 Tax Matters. The provisions made for taxes on the consolidated
balance sheet of CTOR contained in the 1998 financial statements referred to in
Section 3.3 of this Agreement are sufficient for the payment of all unpaid
federal, state, county, local and other taxes of CTOR, whether or not disputed.
The consolidated federal income tax returns of CTOR has been audited by the
Internal Revenue Service (or are no longer subject to audit) for all open years
to and including 1998. There are no proposed additional taxes, interest or
penalties with respect to any year examined or not yet examined. CTOR has
provided to Absolut true and complete copies of the consolidated federal and
state income tax returns of CTOR for the year ended 1998, together with true and
complete copies as filed of all reports of any taxing authority relating to
examinations thereof which have been delivered to CTOR. Each such tax return was
prepared in accordance with applicable law and properly reflect the liability
for taxes of CTOR to the jurisdiction to which such return is made for the
period covered thereby CTOR has not entered into any agreements extending the
statute of limitations with respect to any federal or state taxes.
3.18 Title to Real and Personal Properties; Absence of Liens and
Encumbrances, Etc. CTOR has good, marketable and insurable title to all its
properties and assets, real and personal (including those properties and assets
reflected in the consolidated balance sheets contained in the 1998 financial
statements referred to in Section 3.3 of this Agreement except as sold or
otherwise
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disposed of in the ordinary course of business since the date thereof), in each
case free and clear of all liens and encumbrances, except those reflected in
such financial statements or in the notes to such financial statements, the lien
of current taxes not yet due and payable and such imperfections of title,
easements and encumbrances, if any, as are not substantial in character, amount
or extent, and do not detract from the value, or interfere with the present or
anticipated business use, of the properties subject thereto or affected thereby,
or impair business operations. CTOR is not in violation of any laws, judgment,
order, decree, regulation or rule of any court or governmental authority
applicable to any of them, and the business operations of CTOR are in compliance
with all applicable building codes, environmental, zoning and land use laws, and
other local, state and federal licensing and permitting requirements CTOR has
not received any notice of violation of any applicable zoning laws, orders,
regulations, or requirements relating to its operations or its properties which
has not been complied with, nor any proposed changes in any such laws, orders or
regulations which might have an adverse effect on its business. There is no
threatened or impending condemnation of any of the assets of CTOR or any other
properties of CTOR by any governmental authority.
3.19 Condition of Facilities. The structures and equipment comprising the
business of CTOR and owned, operated or leased by CTOR are presently adequate
for the operations for which they are being used, such facilities, structures
and equipment are structurally sound and in good repair and operating condition,
normal wear and tear excepted, and CTOR is not in violation of any applicable
building, zoning, antipollution, environmental, health, safety, manufacturing or
other laws, ordinance or regulation in respect of such facilities, structures or
equipment, and CTOR has not received any notice alleging such a violation. There
are no pending or contemplated eminent domain proceeding affecting such
facilities, structures or equipment or any part thereof and CTOR has not
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received notice of any such eminent domain proceeding. CTOR has not received
notice of any pending or contemplated proceedings or public improvements which
could or might result in the levy of any special tax or assessment against
facilities, structures or equipment. There are no outstanding requirements or
recommendations by fire underwriters, rating boards or insurance companies
requiring or recommending any repairs or work to be done with reference to such
facilities, structures or equipment.
3.20 Environmental Matters. During the period of time that CTOR or any
entity controlled or affiliated with CTOR has owned or controlled the business
operations, and the properties on which the business operations of CTOR are
conducted has not been used prior to the Closing Date for the disposal of any
toxic or hazardous waste, material or substance as the terms "hazardous waste,"
"hazardous substance," "hazardous material" or "toxic substance" are defined in
the Comprehensive Environmental Response, Compensation and Liability Act, the
Hazardous Materials Transportation Act, the Resource Conservation and Recovery
Act, any applicable state law or any other applicable environmental law or rules
and regulations promulgated thereunder nor has any "release" of such substances
occurred on or about any premises of CTOR in violation of, or requiring
"remedial action" under such laws, rules and regulations, as those terms are
defined therein.
3.21 Pension and Employee Benefit Plans. There are no plans in effect for
pension, profit sharing, deferred compensation, severance pay, bonuses, stock
options, stock purchases, or any other form of retirement or deferred benefit,
or for any health, accident or other welfare plan, in which any employee of CTOR
is entitled to participate.
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3.22 Insurance. Schedule 3.22 summarizes the insurance currently carried
by CTOR in respect of its respective properties and operations, as well as the
assets of CTOR. Including, without limitation, information as to limits of
coverage, deductibles, annual premium requirements and expiration dates with
respect to product liability, general liability, umbrella liability, contractual
liability, employers' liability, automobile liability, workers' compensation,
property and casualty, business interruption and other insurance carried by
CTOR. All such insurance continues to be in full force and effect, and CTOR is
in compliance with all requirements and provisions thereof. Except as set forth
on Schedule 3.22, none of the insurance carried by CTOR is subject to any
retroactive rate or audit adjustments, or co-insurance arrangements. True and
correct copies of all insurance policies relating to such coverage have been
provided by CTOR, to Absolut. There is no reason to believe that any such
insurance coverage will not be renewed upon the expiration thereof at premiums
substantially equivalent to those currently being paid by CTOR. The insurance
coverages heretofore and currently carried by CTOR were and are consistent with
types and amounts of coverages customarily carried by similarly situated
companies.
3.23 No Pending Transactions. Except for the transactions contemplated by
this Agreement CTOR is not a party to or bound by or the subject of any
agreement, undertaking or commitment (i) to merge or consolidate with, or
acquire all or substantially all of the property and assets of, any other
corporation or person, or (ii) to sell, lease or exchange all or substantially
all of its property, and assets to any other corporation or person, or (iii) to
sell, transfer or issue any CTOR Common Stock.
3.24 Disclosure. No representation or warranty made by CTOR or the CTOR
Principal in this Agreement and no statement contained in a certificate,
schedule, list or other instrument or
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document specified in or delivered pursuant to this Agreement, whether
heretofore furnished to Absolut or hereafter required to be furnished to
Absolut, contains or will contain any untrue statement of a fact or omits or
will omit to state any fact necessary to make the statements contained herein or
therein not misleading. All information relating to the historical and
prospective financial position, results of operations, assets and business of
CTOR which is or would be material to the issuance of CTOR Common Stock to
Absolut has been provided by CTOR to Absolut.
3.25 Transactions with Affiliates. Except as disclosed on Schedule 3.25,
CTOR is not a party to any transaction with any (i) current or former officer or
director of CTOR, or (ii) any parent, spouse, child, brother, sister or other
family relation of any such officer or director or (iii) any corporation or
partnership of which any such officer or director or any such family relation is
an officer, director, partner or greater than 10% shareholder (based on
percentage ownership of voting stock) or (iv) any "affiliate" or "associate" of
any such persons or entities (as such terms are defined in the rules and
regulations promulgated under the 1933 Act, including, without limitation, any
transaction involving a contract, agreement or other arrangement providing for
the employment of, furnishing of materials, products or services by, rental of
real or personal property from, or otherwise requiring payments to, any such
person or entity.
3.26 SEC Documents. All documents and forms have been filed with the
Securities and Exchange Commission (the "SEC") that were required to be filed
with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act")
3.27 OTC Bulletin Board. The CTOR Common Stock is posted on the OTC
Bulletin Board, and trading of the CTOR Common Stock has not been suspended or
terminated since the
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commencement of the posting of CTOR Common Stock on the OTC Bulletin Board. The
OTC Bulletin Board Market Maker for the CTOR Common Stock is X. Xxxxxxxxx
Securities.
3.28 Registration Rights. No corporation, general or limited partnership,
limited liability company, joint venture, trust, association, natural person or
entity of any kind has any right to require the registration of any shares of
CTOR Common Stock or any other securities of CTOR.
3.29 Directors and Officers
No director or officer of CTOR has (1) filed a registration statement with
the SEC which is the subject of any pending proceeding or examination under the
1933 Act or is the subject of any refusal order or stop order thereunder five
years prior to the date of this Agreement; (2) been convicted within five years
prior to the date of this Agreement of any felony or misdemeanor in connection
with the purchase or sale of any security or involving the making of any false
filing with the SEC; (3) been subject to any order, judgment or decree of any
court of competent jurisdiction temporarily or preliminary restraining or
enjoining, or been subject to any order, judgment or decree of any court of
competent jurisdiction, entered within five years prior to the date of this
Agreement, permanently restraining or enjoining such person from engaging in or
continuing any conduct or practice in connection with the purchase or sale of
any security or involving the making of any false filing with the SEC; (4) been
convicted within ten years prior to the date of this Agreement of any felony or
misdemeanor in connection with the purchase or sale of any security, involving
the making of a false filing with the SEC or arising out of the conduct of the
business of an underwriter, broker, dealer, municipal securities dealer or
investment advisor; (5) been subject to any order, judgment or decree of any
court of competent jurisdiction temporarily or preliminarily enjoining or
restraining or been subject to any order, judgment or decree of any court of
competent jurisdiction entered within
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five years of the date of this Agreement, permanently enjoining or restraining
such person from engaging in or continuing any conduct or practice in connection
with the purchase or sale of any security, involving the making of a false
filing with the SEC or arising out of the conduct of the business of any
underwriter, broker, dealer, municipal securities dealer or investment advisor;
(6) been suspended or expelled from membership in, or suspended or barred from
association with a member of an exchange registered as a National Securities
Exchange pursuant to Section 6 of the Securities Exchange Act of 1934, an
association registration as a National Securities Association under Xxxxxxx 00X
0000 Xxx or Canadian securities exchange or association for any act or omission
to act constituting conduct inconsistent with just and equitable principles of
trade.
IV. COVENANTS OF ABSOLUT
AND THE ABSOLUT SHAREHOLDERS
Absolut and the Absolut Shareholders covenant that, except as otherwise
consented to in writing by CTOR and the CTOR. Principal after the date of this
Agreement.
4.1 Consents. Absolut and the Absolut Shareholders will take all necessary
corporate or other action and use their best efforts to obtain all consents and
approvals required for consummation of the transactions contemplated by this
Agreement.
4.2 Cause Conditions to be Satisfied. Absolut and the Absolut Shareholders
will use their best efforts to cause all of the conditions described in Article
VII of this Agreement to be satisfied (to the extent such matters reasonably are
within its control).
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V. COVENANTS OF CTOR AND THE CTOR
PRINCIPAL
CTOR and the CTOR Principal covenant to Absolut and the Absolut
Shareholders that, except as otherwise consented to in writing by Absolut and
the Absolut Shareholders after the date of this Agreement:
5.1 Conduct of Business. Except as otherwise provided in this Agreement,
after the date of this Agreement and on or prior to the Closing Date, with
respect to CTOR (a) its business will be conducted only in the ordinary course;
(b) it will not enter into, adopt or amend any employee pension, profit-sharing,
retirement, insurance, incentive compensation, severance or similar plan,
agreement or arrangement, enter into or amend any employment contacts, or
increase the salaries or compensation of its executive officers or, other than
ordinary increases in salaries in accordance with past practices, of other
employees; (c) it shall not incur any liability for borrowed money, encumber any
of its assets or enter into any agreement relating to the incurrence of
additional debt (other than short term unsecured bank credit in the ordinary
course of operations in accordance with past practices), except in accordance
with Section 6.12 of this Agreement; (d) it will use its best efforts to
preserve its business organization intact, to keep available the service of its
officers and employees and to preserve the goodwill of suppliers, customers and
others doing business with it; (e) it will not acquire or agree to acquire by
merging or consolidating with, purchasing substantially all of the assets of, or
otherwise, any business or any corporation, partnership, association or other
business organization or division thereof; (f) it will not enter into or amend
any contract or agreement with any labor union or any lease of real estate or
personal property; (g) it will not enter into any agreement for the purchase,
sale or other disposition, or purchase, sell or dispose of, any equipment,
18
supplies, inventory, investments or other assets (other than sales of inventory
and purchases of material and supplies in the ordinary course of business and in
accordance with past practices), (h) it will not compromise or write off any
material account receivable other than by collection of the full recorded amount
thereof. (i) no change shall be made in its charter documents or bylaws. (j) no
change shall be made in the number of shares or terms of its authorized, issued
or outstanding capital stock, nor shall it enter into or grant any options,
calls, contracts or commitments of any character relating to any issued or
unissued capital stock, and (k) no dividend or other distribution or payment
shall be declared or paid in respect of its capital stock.
5.2 Consents. CTOR and the CTOR Principal agree to take all necessary
corporate or other action and to use their best efforts to complete all filings
and obtain all governmental and other consents, permits licenses and approvals
required for consummation of the transactions contemplated by this Agreement.
5.3 Notice of Litigation. CTOR will provide written notice to Absolut of
any litigation, proceeding or governmental investigation which arises or is
threatened or in prospect, after the date of this Agreement and prior to the
Closing, against or relating to CTOR, its respective assets, properties or
businesses, or the transactions contemplated by this Agreement, setting forth in
such notice the facts and circumstances currently available to CTOR with respect
to such litigation, proceeding or investigation.
5.4 Corporate Transactions. CTOR will not seek, and the CTOR Principal
will cause CTOR not to seek, the affiliation of CTOR with any entity other than
Absolut and neither will negotiate or entertain any offer with respect to the
issuance of CTOR Common Stock or the sale of part or, all of the CTOR Common
Stock or substantially all of CTOR's assets CTOR will not
19
authorize or permit any officer, director or employee of CTOR to, or any
investment banker, attorney, accountant or other representative retained by CTOR
to, solicit or encourage (including by way of furnishing information) any
inquiries or the making of any proposal that is reasonably expected may lead to
the acquisition of part or all of the CTOR Common Stock or substantially all of
its assets by any person other than Absolut. CTOR promptly will advise Absolut
orally, followed by written confirmation, of any such inquiries or proposals.
5.5 Cause Conditions to be Satisfied. CTOR will use its best efforts to
cause all of the conditions described in Article VI of this Agreement to be
satisfied (to the extent such matters reasonably are within their control).
VI. CONDITIONS TO ABSOLUT AND THE
ABSOLUT SHAREHOLDERS' OBLIGATIONS
Unless waived by Absolut and the Absolut Shareholders in writing in their
sole discretion, all obligations of Absolut and the Absolut Shareholders under
this Agreement are subject to the fulfillment, prior to or at the Closing, of
each of the following conditions by CTOR and the CTOR Principal:
6.1 Representations, Warranties and Covenants. The representations and
warranties of CTOR and the CTOR Principal contained in Section 3 of this
Agreement shall be true at and as of the Closing Date, shall be deemed made
again at and as of such date and be true as so made again, CTOR and the CTOR
Principal shall have performed all obligations and complied with all covenants
required by this Agreement to be performed or complied with by them prior to the
Closing, and Absolut shall have received from CTOR and the CTOR Principal a
certificate or certificates in such
20
reasonable detail as Absolut may reasonably request, signed by the Chairman of
the Board or President of CTOR and by the CTOR principal and dated the date of
Closing, to the foregoing effect.
6.2 Opinion of Counsel. CTOR and the CTOR Principal shall have delivered
to Absolut and the Absolut Shareholders a favorable opinion of its counsel,
Xxxxxxx X. Xxxxxxxx, dated the Closing Date, in form and substance satisfactory
to Absolut and its counsel.
6.3 Approvals of Governmental Authorities. All consents and approvals
necessary or advisable in the opinion of Absolut's counsel to consummate the
transactions contemplated by this Agreement shall have been received and shall
not contain any provision which, in the judgment of Absolut, is unduly
burdensome.
6.4 No Adverse Proceedings or Events. No suit, action or other proceeding
against CTOR or Absolut, or their respective officers or directors, or any
shareholders of CTOR or Absolut shall be threatened or pending before any court
or governmental agency in which it will be, or it is, sought to restrain or
prohibit any of the transactions contemplated by this Agreement or to obtain
damages or other relief in connection with this Agreement or the transactions
contemplated hereby.
6.5 Consents and Actions: Contracts. All requisite consents of any third
parties and other actions which CTOR has covenanted to use its best efforts to
obtain and take shall have been obtained and completed. All contracts and
agreements of CTOR relating to its assets and business, including, without
limitation, all contracts and agreements listed on Schedule 6.5, shall be in
full force and effect and shall not be affected by the consummation of the
transactions contemplated hereby. CTOR shall also have been removed and
discharged from all guaranties, contracts, agreements and Commitments relating
to any matter other than the assets and the business specifically and not by way
of limitation the lease with respect to the corporate offices of CTOR shall have
been terminated.
21
6.6 No Adverse Change. No adverse change in the financial condition,
results of operations, assets, liabilities, business or prospects (including any
change resulting from governmental regulations or the loss of any permits,
licenses or franchises) of the business of CTOR shall have occurred between the
date hereof and the Closing Date.
6.7 No Prohibition. No federal, state or local governmental unit, agency,
body or authority with competent jurisdiction over the subject matter shall have
given official written notice of its intention to institute proceedings to
prohibit the transactions contemplated by this Agreement.
6.8 All Approvals. Absolut shall have obtained all federal, city, county
and state approvals, licenses and permits required for the operation of the
facilities included in the assets by Absolut and no such approval shall have
been conditioned upon any structural changes being made to the business or
assets of CTOR or shall have required the expenditure of more than $1,000.
6.9 All Transfers of Intellectual Property. CTOR shall have executed and
delivered to Absolut any and all necessary documents transferring all
intellectual property of CTOR to Absolut, including without limitation, all
trade names, trade marks, logos and copyrighted materials by Absolut.
6.10 Resignations. The officers and directors of CTOR, excluding the CTOR
Principal, shall have resigned effective as of the Closing Date. The CTOR
Principal shall resign as an officer and director immediately following the
Closing Date.
6.11 Releases. CTOR, the CTOR Principal and each officer and director of
CTOR shall have executed releases concerning any claim against CTOR, including
any claims for indemnification,
22
contribution or otherwise arising with respect to this Agreement, the
representations, warranties and agreements contained herein and the transactions
contemplated hereby.
6.12 Other Evidence. Absolut shall have received from CTOR such further
certificates and documents evidencing due action in accordance with this
Agreement, including certified copies of proceedings of the board of directors
and shareholders of CTOR, as Absolut reasonably shall request.
VII. CONDITIONS TO CTOR AND THE CTOR
PRINCIPAL'S OBLIGATIONS
Unless waived by CTOR and the CTOR Principal in writing in their sole
discretion, all obligations of CTOR and the CTOR Principal under this Agreement
are subject to the fulfillment by Absolut and the Absolut Shareholders, prior to
or at the Closing, of each of the following conditions:
7.1 Representations, Warranties and Covenants. The representations and
warranties of Absolut and the Absolut Shareholders contained in Section 2 of
this Agreement shall be true at and as of the Closing Date, shall be deemed made
again at and as of such date and be true as so made again, Absolut and the
Absolut Shareholders shall have performed all obligations and complied with all
covenants required by this Agreement to be performed or complied with by it on
or prior to the Closing, and CTOR and the CTOR Principal shall have received
from Absolut and the Absolut Shareholders a certificate or certificates in such
reasonable detail as CTOR may reasonably request, signed by the President or a
Vice President of Absolut and by the Absolut Shareholders and dated the Closing
Date, to the foregoing effect.
23
7.2 No Adverse Proceedings or Events. No suit, action or other proceeding
against CTOR or Absolut, or its officers or directors, shall have been
instituted and resulted in entry of a court order (which has not subsequently
been dismissed, terminated or vacated) enjoining, either temporarily or
permanently, the consummation of the transactions contemplated by this
Agreement.
7.3 Consents and Actions. All requisite consents of any third parties and
other actions which Absolut and the Absolut Shareholders have covenanted to use
their best efforts to obtain and take under this Agreement shall have been
obtained and completed.
7.4 Other Evidences. CTOR and the CTOR Principal shall have received from
Absolut and the Absolut Shareholders such further certificates and documents
evidencing due action in accordance with this Agreement, including certified
copies of proceedings of the board of directors of Absolut, as CTOR and the CTOR
Principal reasonably shall request.
VIII INDEMNIFICATION
8.1 Survival. The parties agree that the representations and warranties
contained in this Agreement shall survive the Closing and continue to be
binding, regardless of any investigation made at any time by the parties.
8.2 Indemnification of Absolut and the Absolut Shareholders. CTOR and the
CTOR Principal, jointly and severally, hereby agree to indemnify and hold
harmless Absolut and the Absolut Shareholders, and each officer, director,
employee or agent of Absolut, their respective controlling persons, and their
respective estates, successors, and assigns (each an "Indemnified Party"), from
and against any and all claims, losses, damages, liabilities and expenses
(including, without limitation, settlement costs and any legal or other expenses
for investigating or defending any actions or threatened actions) (the "Losses")
reasonably recurred by such Indemnified Party as a result of:
24
(a) the untruth, inaccuracy or breach of any representation or
warranty made by CTOR or the CTOR Principal pursuant to Article III of this
Agreement;
(b) the nonfulfillment or breach of any covenant, agreement or
obligation of CTOR or the CTOR Principal contained in this Agreement;
(c) any and all amounts of federal, state, and/or local income,
franchise, property, and/or sales and use taxes that my be assessed against
Absolut with respect to any taxable period(s) ending on or before the date of
this Agreement for which adequate provisions therefor have not been made through
the Closing Date, as reflected on CTOR's books of account and in CTOR financial
statements as of the Closing Date; and the amount(s) of any interest and/or
penalties that may be assessed with respect to said tax assessments;
(d) any matter disclosed on any Schedule; and
(e) any claim or demand by any person asserting any interest in any
share of CTOR Common Stock or seeking dissenters' or appraisal rights or any
other claim in respect to the issuance of CTOR Common Stock.
IX. MISCELLANEOUS
9.1 Brokers and Advisors. Absolut and CTOR represent and warrant to each
other that the transactions contemplated by this Agreement have been negotiated
directly between them and their respective counsel, without the intervention of
any person as a result of any action by them in such a manner as to give rise to
a valid claim against any party hereto for a brokerage commission, finder's fee,
counseling or advisory fee, or like payment, and each agrees to indemnify the
opposite party against any such liability arising from or through it.
25
9.2 Expenses. Each party shall pay all of its own expenses relating to
this Agreement and the transactions contemplated hereby, including fees and
disbursements of its counsel, accountants, investment bankers, and financial
advisors.
9.3 Good Faith; Further Assurances; Further Cooperation. The parties to
this Agreement shall in good faith undertake to perform their obligations under
this Agreement, to satisfy all conditions and to cause the transactions
contemplated by this Agreement to be carried out promptly in accordance with the
terms of this Agreement. Upon the execution of this Agreement and thereafter,
each party shall do such things as may be reasonably requested by the party
hereto in order more effectively consummate or document the transaction
contemplated by this Agreement.
9.4 Notices. All notices, communications and delivers under this Agreement
shall be made in writing, signed by the party making the same, shall specify the
Section of this Agreement pursuant to which it is given, and shall be deemed
given on the date delivered if delivered in person or on the third business day
after mailed if mailed certified mail (with postage prepaid), return receipt
requested, as follows:
To Absolut: Absolut Future Tech, Inc.
Xxxxx 0000, 000 X Xxxxxxx Xx.
-----------------------------
Xxxxxxxxx, X.X. X0X 0X0
-----------------------------
Xxxxxx
-----------------------------
Fax: (000) 000-0000
-----------------------------
Attn: Xxxxxx Xxxxxxx
-----------------------------
26
With a copy to:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
To the Absolut
Shareholders: AFT Shareholders
-------------------------------
-------------------------------
-------------------------------
-------------------------------
With a copy to:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
To CTOR: CTOR Consulting, Inc.
0000 Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxx
27
With a copy to: Xxxxxxx X. Xxxxxxxx, Esquire
0000 Xxxxx Xxxx Xxxxx
Xxxxx 000
Xxxx, XX 00000
Facsimile (000) 000-0000
To the CTOR
Principal: Xxxxx Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Xxx Xxxxx Xxxxxx
With a copy to Xxxxxxx X. Xxxxxxxx, Esquire
0000 Xxxxx Xxxx Xxxxx
Xxxxx 000
Xxxx, XX 00000
Facsimile (000) 000-0000
or to such other representative or to such other address as the parties hereto
may furnish to the other parties in writing. If notice is given pursuant to this
section of a permitted successor or assign of a party of this Agreement, then
notice shall be given as set forth above to such successor or assign of such
party. All such notices, requests, or communications shall be mailed postage
prepaid, certified mail, return receipt requested or delivered personally or by
facsimile copy, and shall be sufficient and effective when delivered to or
received at the address so specified. Any party may change the address at which
it is to receive notice by the written notice to the other.
9.5 Assignment. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, and their respective legal representatives,
heirs, successors and permitted assigns. Absolut shall have the absolute right
to assign its rights and obligations hereunder to an entity owned or controlled
by Absolut without the prior consent of CTOR or the CTOR Shareholder.
28
9.6 Captions; Definitions. The titles or caption of articles, sections and
subsections contained in this Agreement are inserted only as a matter of
convenience and for reference and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any provision hereof. The parties
agree to all definitions in this Agreement and in the other introductory
language to this Agreement.
9.7 Controlling Law; Jurisdiction; Amendment; Waiver; Remedies Cumulative;
Attorneys' Fees.
(a) This Agreement shall be construed and enforced in accordance with
the laws of the State of Nevada, without regard to its conflicts of laws rules.
This Agreement may not be altered or amended except in writing signed by
Absolut, the Absolut Shareholders, CTOR and the CTOR Principal. The failure of
any party hereto at any time to require performance of any provisions hereof
shall in no manner affect the right to enforce the same. No waiver by any party
hereto of any condition, or of the breach of any term, provision, warranty,
representation, agreement or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances shall be deemed or construed
as a further or continuing waiver of any such condition or breach or a waiver of
any other condition or of the breach of any other terms, provision, warranty,
representation, agreement or covenant hereto continued.
(b) Any action or proceeding against any party hereto relating in any
way to this Agreement or the obligations or any party arising from the
transactions contemplated herein or other documents delivered pursuant hereto
shall be brought and enforced only in the federal and state courts of the State
of Nevada and the parties irrevocably submit to the jurisdiction of each such
court in respect to any such action or proceeding.
29
(c) The parties hereto each irrevocably waive, to the fullest extent
permitted by applicable law, any objection that any of them may now or hereafter
have to the laying of venue of any such action or proceeding in the federal and
state courts of the State of Nevada and any claim that such action or proceeding
brought in any such court has been brought in an inconvenient forum.
(d) If any legal action or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any provisions of this Agreement, the
successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees, court costs and all expenses even if not taxable as
court costs (including, without limitation, all such fees, costs and expenses
incident to appeals), incurred in that action or proceeding, in addition to any
other relief to which such party or parties may be entitled.
9.8 Representations and Warranties. The respective representations and
warranties of each party hereto shall not be deemed to be waived or otherwise
affected by any investigation made by any other parties hereto.
9.9 Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the transactions contemplated and
supersedes all prior agreements, understandings, letter of intent and
negotiations, both written and oral, among the parties with respect thereto.
9.10 Counterparts. This Agreement may be executed by each party upon a
separate copy, and in such case one counterpart of this Agreement shall consist
of enough of such copies to reflect the signatures of all of the parties of this
Agreement. This Agreement shall become effective when one or more counterparts
have been signed by each of the parties to this Agreement and delivered to each
of the other parties to this Agreement. This Agreement may be executed in two or
more
30
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or the terms of this Agreement to
produce or account for more than one of such counterparts.
IN WITNESS WHEREOF, Absolut, CTOR, the Absolut Shareholders, and the CTOR
Principal have caused this Agreement to be duly executed and their respective
seals to be hereunto affixed as of the date first above written.
ABSOLUT FUTURE TECH, INC.
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Title: President
------------------------
CORPORATE TOURS & TRAVEL, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------
Title: President
------------------------
ATF SHAREHOLDERS
/s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxxx
------------------------------
Xxxxx Xxxxxxxxx
/s/ X.X. Xxxxxx
------------------------------
Cherryvale Limited
31
/s/ Park, Joon-Hyun /s/ Xxxx Xxxxx
------------------------------- -----------------------------
Park, Joon-Hyun Xxxx Xxxxx
/s/ Dong Joong Park /s/ SJH Xxxxxx, Trustee
------------------------------- -----------------------------
Dong Joong Park SJH Xxxxxx Childrens Trust
/s/ Jung, OK JA /s/ X. Xxxxxx, Director
------------------------------- -----------------------------
Jung, OK XX Xxxxx Investments Limited
/s/ Xxxxxx Eiendom
------------------------------- -----------------------------
Xxxxxx Eiendom A.G.
/s/ Xxxxxxx Xxxxxxxx
------------------------------- -----------------------------
Xxxxxxx Xxxxxxxx
/s/ Nadeja Oujvenko
------------------------------- -----------------------------
Nadeja Oujvenko
-------------------------------
CTOR PRINCIPAL
/s/ Xxxxx Xxxxxx
-----------------------------
Xxxxx Xxxxxx
32
