EXCHANGE AGREEMENT
Between
QMNI PARKPASS, INC.,
INVVISION CAPITAL, INC. and
THE SHAREHOLDERS OF INVVISION CAPITAL, INC.
Dated April 20, 2001
TABLE OF CONTENTS
ARTICLE I REPRESENTATIONS, COVENANTS, AND WARRANTIES
OF INVVISION...................................................................1
Section 1.01 Due Organization and Qualification.............................1
Section 1.02 Authorization; Non-Contravention; Approvals....................1
Section 1.03 Capitalization.................................................2
Section 1.04 Subsidiaries and Predecessor Corporations......................2
Section 1.05 Financial Statements...........................................3
Section 1.06 Liabilities and Obligations....................................3
Section 1.07 Taxes..........................................................3
Section 1.08 Absence of Certain Changes or Events...........................3
Section 1.09 Assets.........................................................4
Section 1.10 Litigation and Compliance with Law.............................5
Section 1.11 Material Contracts.............................................5
Section 1.12 Material Contract Defaults.....................................6
Section 1.13 Labor and Employee Relations...................................6
Section 1.14 Insurance......................................................6
Section 1.15 Material Transactions or Affiliations..........................6
Section 1.16 Invvision Schedules............................................7
Section 1.17 Disclosure.....................................................7
ARTICLE II REPRESENTATIONS, COVENANTS, AND WARRANTIES OF THE
INVVISION SHAREHOLDERS.........................................................7
Section 2.01 Ownership of Invvision Shares..................................7
ARTICLE III REPRESENTATIONS, COVENANTS, AND WARRANTIES
OF OMNI PARK...................................................................8
Section 3.01 Due Organization and Qualification.............................8
Section 3.02 Authorization; Non-Contravention; Approvals....................8
Section 3.03 Capitalization.................................................8
Section 3.04 Subsidiaries and Predecessor Corporations......................9
Section 3.05 Financial Statements...........................................9
Section 3.06 Liabilities and Obligations....................................9
Section 3.07 Taxes..........................................................9
Section 3.08 Absence of Certain Changes or Events..........................10
Section 3.09 Assets........................................................11
Section 3.10 Litigation and Compliance with Law............................11
Section 3.11 Material Contracts............................................12
Section 3.12 Labor and Employee Relations..................................12
Section 3.13 Schedules.....................................................12
Section 3+14 Shareholders' Equity..........................................12
ARTICLE IV PLAN OF EXCHANGE...................................................12
Section 4.01 The Exchange..................................................12
Section 4.02 Appointment of New Directors..................................13
Section 4.03 Closing.......................................................13
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Section 4.04 Closing Events................................................13
ARTICLE V SPECIAL COVENANTS...................................................13
Section 5.01 Stockholder Meeting of Omni Park..............................13
Section 5.02 Access to Properties and Records..............................13
Section 5.03 Delivery of Books and Records.................................14
Section 5.04 Special Covenants and Representations
Regarding the Exchanged Stock.............................................14
Section 5.05 Third Party Consents and Certificates.........................14
Section 5.06 Actions Prior to Closing......................................14
Section 5.07 Indemnification...............................................15
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS
OF INVVISION AND THE INVVISION SHAREHOLDERS...................................15
Section 6.01 Accuracy of Representations...................................15
Section 6.02 Officer's Certificates........................................16
Section 6.03 No Material Adverse Change....................................16
Section 6.04 Good Standing.................................................16
Section 6.05 Board of Directors Approval...................................16
Section 6.06 Other Items.................................................. 16
ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF OMNI PARK................. 16
Section 7.01 Accuracy of Representations...................................16
Section 7.02 Stockholder Approval..........................................17
Section 7.03 Officer's Certificate.........................................17
Section 7.04 No Material Adverse Change....................................17
Section 7 O5 Good Standing.................................................17
Section 7.06 Other Items...................................................17
ARTICLE VIII MISCELLANEOUS....................................................17
Section 8.0l Brokers.......................................................17
Section 8.02 Governing Law.................................................18
Section 8.03 Notices.......................................................18
Section 8.04 Attorney's Fees...............................................18
Section 8.05 Confidentiality...............................................18
Section 8.06 Schedules; Knowledge..........................................19
Section 8.07 Third Party Beneficiaries.....................................19
Section 8.08 Entire Agreement..............................................19
Section 8.09 Survival; Termination.........................................19
Section 8.10 Counterparts..................................................19
Section 8.11 Amendment or Waiver...........................................19
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EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (hereinafter referred to as this "Agreement"),
is entered into as of this 20th day of April, 2001, by and among EWlS1ON
CAPITAL, INC., a Texas corporation ("Invvision"), those persons identified in
Schedule "A". attached hereto, who are the beneficial owners of 4,257,393 shares
of common stock of Invvision ("Common Stock"), which constitutes 100% of the
outstanding capital stock of Invvision ("Invvision Shareholders"), and OMNI
PARKPASS5 INC., a Nevada corporation ("Omni Park") which is a publicly held
company currently subject to the reporting requirements of Section 12(g) of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act."
Premises
This Agreement provides for the acquisition by Omni Park of all of the
issued and outstanding shares of Invvision solely in exchange for voting shares
of Omni Park, on the terms and conditions hereinafter provided, all for the
purpose of effecting a so-called "tax-free" reorganization pursuant to Section
36S(a)(I)(B) of the Internal Revenue Code of 1954, as amended.
Agreement
NOW THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTEONS, COVENANTS, AND WARRANTIES
OF INVVISION
As an inducement to, and to obtain the reliance of Omni Park, Invvision
represents and warrants as follows:
Section 1,01 Due Organization and Qualification. Invvision is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Texas and is duly authorized and qualified to do business
under all applicable laws, regulations, ordinances and orders of public
authorities and to carry on its business in the places and in the manner as now
conducted Invvision has the requisite power and authority to own, lease and
operate its assets and properties and to carry on its business as such business
is currently being conducted. Schedule 1.01, attached hereto, includes true,
complete and correct copies of the Articles/Certificate of Incorporation, (as
amended?), and Bylaws of Invvision as in effect on the date hereof.
Section 1.02 Authorization; Non-Contravention: Approvals.
(a) lnvvision has the requisite power and authority to enter
into this Agreement. The board of directors of Invvision has authorized
the execution, delivery and performance of this Agreement and has
approved the transactions contemplated hereby, and approved the
submission of this Agreement and the transactions contemplated hereby
to the shareholders of Invvision for their approval with the
recommendation that the reorganization be accepted. No additional
corporate proceedings on the part of Invvision is necessary to
authorize the execution and
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delivery of this Agreement and the consummation by Invvision of the
transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by Invvision, and assuming due
authorization, execution and delivery hereof by Omni Park, constitutes
a valid and binding agreement of lnvvision enforceable against it in
accordance with its terms.
(b) The execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated by this Agreement in
accordance with he terms hereof will not, violate or result in a breach
of any provision of or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance required
by, or result in a right of termination or acceleration under, or
result in the creation of any encumbrance upon any of the properties or
assets of Invvision under any of the terms, conditions or provisions of
(i) the Articles of Incorporation or Bylaws of Invvision, (ii) any laws
applicable to Invvision or any of the properties or assets of
lnvvision, or (iii) any material note, bond, indenture, mortgage, deed
of trust, license, ftanchise9 permit, concession, lease or other
material instrument, obligation or agreement of any kind to which
lnvvision is now a party or by which any of their properties or assets
may be bound or affected.
(c) lnvvision has all licenses, franchises, permits, and other
governmental authorizations that are legally required to enable them to
conduct their business in all material respects as conducted on the
date hereof. Except for compliance with federal and state securities
and corporation laws, as hereinafter provided, no declaration, filing
or registration with, or notice to, or authorization, consent, approval
or order of any governmental authority or third party is necessary for
the execution and delivery of this Agreement by Invvision or the
consummation by Invvision of the transactions contemplated hereby.
Except as set forth in Schedule I .02(c). attached hereto, none of the
contracts or agreements with material customers or contracts providing
for purchases or services or other material agreements, licenses or
permits to which Invvision is a party requires notice to, or the
consent or approval of; any third party for the execution and delivery
of this Agreement by lnvvision and the consummation of the transactions
contemplated hereby.
Section 1.03 Capitalization- The authorized capitalization of Invvision
consists of 20,000,000 shares of common stock, $0.01 par value per share, of
which 4,257,393 shares are currently issued and outstanding. All of the issued
and outstanding shares of Invvision are owned beneficially and of record by the
shareholders set forth in Schedule .03. attached hereto. All of the issued and
outstanding shares of Invvision have been duly authorized and validly issued,
are fully paid and nonassessable, and were offered, issued, sold and delivered
by Invvision in compliance with all applicable laws, including, without
limitation, those laws concerning the issuance of securities. None of such
shares were issued in violation of the pre-emptive rights of any past or present
shareholder- No subscription, option, warrant, call, convertible or exchangeable
security, other conversion right or commitment of any kind exists which
obligates Invvision to issue any of its outstanding capital stock or to purchase
any capital stock of Invvision.
Section 1.04 Subsidiaries and Predecessor Corporations. Other than as
set forth in Schedule 1.04 attached hereto, Invvision does not own, of record or
beneficially, or control, directly or indirectly. any capital stock, securities
convertible into or exchangeable for capital stock of any other equity flit
crest in any corporation. association or other business entity. Invvision is not
directly or indirectly, a participant in any joint venture, limited liability
company partnership or other noncorporate entity.
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Section 1.05 Financial Statements.
(a) Schedule 1.05(a). attached hereto, includes a list of the
assets of Invvision as of the closing date. Invvision will prepare and
file with the U.S. Securities & Exchange Commission an audited
statement within sixty (60) days.
(b) All such financial statements have been prepared in
accordance with generally accepted accounting principles. The audited
balance sheet presents fairly, as of its date, the financial condition
of Invvision. The statements of income, stockholders' equity and
changes in financial condition of Invvision reflect fairly the
information required to be set forth therein by generally accepted
accounting principles. The books of account of Invvision have been kept
accurately in all material respects in the ordinary course of business,
the transaction entered therein represent bona fide transactions, and
the revenues, expenses, assets and liabilities of Invvision have been
property recorded therein in all material respects.
Section 1.06 Liabilities and Obligations. Invvision did not have, as of
the date of its balance sheet, nor has incurred since that date, except as and
to the extent reflected or reserved against therein, any liabilities or
obligations (whether absolute, accrued, contingent or otherwise) of any nature
which should be reflected in a balance shed or the notes thereto, prepared in
accordance with generally accepted accounting principles.
Section 1.07 Taxes. Invvision has timely filed all requisite federal,
state, local and other tax returns for all fiscal periods ended on or before the
date hereof, and has duly paid in flail or made adequate provision in the
financial statements for the payment of all taxes for all periods ending at or
prior to the date hereof. Schedule I .07 attached hereto, includes true and
correct copies of the federal income tax returns of Invvision filed since its
date of inception. To Invvision's actual knowledge, there are no examinations in
progress or claims against Invvision relating to taxes for any period prior to
and including the balance sheet date and no written notice of any claim for
taxes, whether pending or threatened, has been received. Each of such income tax
returns reflects the taxes due for the period covered thereby, except for
amounts which, in the aggregate, are immaterial. Invvision owe any unpaid
federal, state, county, local or other taxes (including any deficiencies,
interest or penalties) through the date hereof, for which Invvision may be
liable in its own right or as a transferee of the assets of, or as a successor
to, any other corporation or entity. Furthermore, except as accruing in the
normal course of business, Invvision does not owe any accrued and unpaid taxes
to date of this Agreement.
Section 1.08 Absence of Certain Changes or Events. Since March 31,
2001, except as set forth in this Agreement or in Schedule E .08 attached
hereto, Invvision has conducted its operations in the ordinary course of
business and there has not been
(a) any material adverse change in the business, operations,
properties, condition (financial or otherwise), assets, liabilities
(contingent or otherwise), results of operations or prospects of
Invvision;
(b) any damage, destruction or loss (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets or condition of Invvision;
(c). any change in the authorized capital stock of Invvision
or in its outstanding securities or any change in the Invvision
Shareholders' ownership interests in Invvision or any grant of any
options, warrants, calls, conversion rights or commitments;
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(d) any declaration or payment of any dividend or distribution
in respect of the capital stock or any direct or indirect redemption,
purchase or other acquisition or any of the capital stock of Invvision;
(e) any increase in the compensation payable or to become
payable by Invvision, including any increase in any profit sharing,
bonus, deferred compensation, insurance, pension, retirement, or other
ernployee benefit plan, payment, or arrangement, to any of their
respective officers, directors, employees, consultants or agents,
except for ordinary and customary bonuses and salary increases for
employees, which bonuses and salary increases are set forth in Schedule
1 .08(e), attached hereto;
(f) any significant work interruptions, labor grievances or
claims filed;
(g) except for the Agreement, any sale or transfer, or any
agreement to sell or transfer any material assets, properties or rights
of lnvvision to any person, including, without limitation, the
Invvision shareholders, except assets, properties or rights not used or
useful in its business which, in the aggregate have a value of less
than $1,000;
(h) any cancellation, or agreement to cancel, any indebtedness
or other obligation owing to Invvision, except debts or claims which in
the aggregate are of a value less than $1,000;
(i) any increase in the indebtedness of lnvvision, other than
accounts payable incurred in the ordinary course of business or
incurred in connection with the transactions contemplated by this
Agreement;
(j) any plan, agreement or arrangement granting any
preferential rights to purchase or acquire any interest in any of the
assets, property or rights of Invvision or requiring consent of any
party to the transfer and assignment of such assets, property or
rights;
(k) any purchase or acquisition of; or agreement, plan or
arrangement to purchase or acquire, any property, rights or assets
outside of the ordinary course of Invvision's business;
(l) any waiver of any material rights or claims of lnvvision;
(m) any material breach, amendment or termination of any
material contract, agreement, permit or other right to which lnvvision
is a party or any of their property is subject;
(n) any material change in Invvision's method of management,
operation or accounting; or
(o) any other material transaction by Invvision outside the
ordinary course of business.
Section 1.09 Assets. lnvvision has good and indefeasible title to all
of its properties. inventory, interests in properties, and assets, both real and
personal, which are reflected in the most recent audited balance sheet or
acquired after that date (except properties, interests in properties, and assets
sold or otherwise disposed of since such date in the ordinary course of
business), free and clear of all hens, pledges, charges, or encumbrances except
(a) statutory liens or claims not yet delinquent; (b) such imperfections of
title and easements as do not and will not materially detract from or interfere
with the
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present or proposed use of the properties subject thereto or affected thereby or
otherwise materially impair present business operations on such properties; and
(c) as described in Schedule I .09. attached hereto. Except as set forth in
Schedule 1.09, attached hereto, Invvision owns free and clear of any liens,
claims, encumbrances, royalty interests, or other restrictions or limitations of
any nature whatsoever, any and all products they are currently manufacturing,
including the underlying technology and data, and all procedures, techniques,
marketing plans, business plans, methods of management, or other information
utilized in connection with Invvison's business. Except as set forth in Schedule
I .09. attached hereto, no third party has any right to, and Invvision has not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
proprietary techniques, trademarks, service marks, trade names or copyrights
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse affect on the business,
operations, financial condition, income or business prospects of Invvision or
any material portion of their properties, assets, or rights.
Section 1.10 Litigation and Compliance with Law. There are no claims,
actions, suits, proceedings or investigations pending or1 to the knowledge of
Invvision, threatened against or affecting Invvision, at law or in equity, or
before or by any court or other governmental agency or instrumentality, domestic
or foreign, or before any arbitrator of any kind. No written notice of any
claim, action, suit, proceeding or investigation, whether pending or threatened,
has been received by Invvision and, to Invvision's knowledge, there is no basis
therefore. Invvision does not have any knowledge of any default on their part
with respect to any judgment, order, writ, injunction, decree, award, rule, or
regulation of any court, arbitrator, or governmental agency or instrumentality
or of any circumstances which, after reasonable investigation would result in
the discovery of such a default. lnvvision has conducted and is conducting its
business in compliance with all laws applicable to them, their assets or the
operation of their business, except to the extent that noncompliance would not
materially and adversely affect the business, operations, assets or condition of
Invvision or except to the extent that noncompliance would not result in the
incurrence of any material liability for lnvvision.
Section 1.11 Material Contracts.
(a) Except as included or described in Schedule 1.11 attached
hereto, there are no material contracts, agreements, franchises,
license agreements or other commitments to which Invvision is a party
or by which they or any of their assets, products, technology or
properties are bound;
(b) Alt contracts. agreements, franchises, license agreements
and other commitments to which Invvision is a party, or by which its
properties are bound, and which are material to the operations of
Invvision taken as a whole are valid and enforceable by Invvision in
all respects, except as limited by bankruptcy and insolvency laws and
by other laws affecting the rights of creditors generally;
(c) lnvvision is not a party to or bound by, and the
properties of Invvision are not subject to, any contract, agreement
other commitment or instrument; any charter or other corporate
restriction; or any judgment, order, writ, injunction, decree or award
which materially and adversely affects, or in the future may be
foreseeable to materially and adversely affect, the business,
operations, properties, assets or condition of Invvision; and
(d) Except as included or described in Schedule 1.11 attached
hereto, or reflected in the most recent balance sheet, Invvision is not
a party to any oral or written (i) agreement,
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contract or indenture relating to the borrowing of money; (ii) guaranty
of any obligation, other than one on which Invvision is a primary
obligor, for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties of obligations,
which, in the aggregate do not exceed wore than one year or providing
for payments in excess of $1,000 in the aggregate; or (iii) contract,
agreement or other commitment involving payments by it of more than
$1,000 in the aggregate.
Section l .12 Material Contract Defaults. Invvision is not in default
in any material respect under the terms of any outstanding contract, agreement,
lease or other commitment which is material to the business, operations,
properties, assets or condition of Invvision, and there is no event of default
in any material respect under any such contract, agreement) lease1 or other
commitment in respect of which Invvision, has not taken adequate steps to
prevent such a default from occurring.
Section 1.13 Labor and Employee Relations, Invvision is not bound by or
subject to any oral or written (1) contract for the employment of any officer or
employee; (ii) profit sharing, bonus, deferred compensation, stock option,
severance pay, pension benefit or retirement plan, agreement, or arrangement
covered by Title IV of the Employee Retirement Income Security Act, as amended
("ERISA'5); (iii) collective bargaining agreement; or (iv) agreement with any
present or former officer or director of Invvision. There is no pending or, to
Invvision's knowledge, threatened labor dispute involving Invvision and any
group of its employees nor has Invvision experienced any significant labor
interruptions over the past five years. Invvision is not bound by or subject to
any arrangement with any labor union. No employees of Invvision are represented
by any labor union or covered by any collective bargaining agreement nor, to
lnvvision's knowledge, is any campaign to establish such representation in
progress. Invvision has no knowledge of any significant issues or problems in
connection with the relationship with its employees.
Section 1.14 Insurance. All the insurable properties of Invvision is
insured for its full replacement value against all risks customarily insured
against by persons operating similar properties in localities where such
properties are located and under valid and enforceable policies by insurers of
recognized responsibility. Such policy or policies containing substantially
equivalent coverage will be outstanding on the date of consummation of the
transactions contemplated by this Agreement.
Section 1.15 Material Transactions or Affiliations. Set forth in
Schedule 1.15, attached hereto, is a description of every material contract,
agreement1 or arrangement between Invvision arid any predecessor and any person
who was at the time of such contract, agreement, or arrangement an officer,
director, or person owning of record, or known by Invvision to own beneficially,
five percent (5%) or more of the issued and outstanding common stock of
Invvision and which is to be performed in whole or in part after the date hereof
or which was entered into not more than three years prior to the date hereof In
all of such transactions, the amount paid or received, whether in cash, in
services, or in kind, is, had been during the lull term thereof, and is required
to be during the unexpired portion of the term thereof, no less favorable to
Invvision than terms available from otherwise unrelated patties in arm's length
transactions. Except as disclosed in Schedule t .15. attached hereto, or
otherwise disclosed herein, no officer, director, or five percent (5%)
shareholder of lnvvision has had any interest, direct or indirect, in any
material transaction with Invvision. There are no commitments by Invvision,
whether written or oral, to lend any funds to, borrow any money from, or enter
into any other material transaction with, any such affiliated person.
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Section I 16 Invvision Schedules. Invvision has delivered to Omni Park
as a part of this Agreement the following additional schedules all certified by
the president of Invvision as complete, true, and correct:
(a) Schedule 1.16(a). attached hereto, containing a
description of all real property owned by Invvision, together with a
description of every mortgage, deed of trust, pledge, lien, agreement,
encumbrance, claim, or equity interest of any nature whatsoever in such
real property;
(b) Schedule ii 6(b). attached hereto, listing the accounts
receivable and notes and other obligations receivable of Invvision as
of April 20, 2001, or that arose thereafter other than in the ordinary
course of business of Invvision, indicating the debtor and amount, and
classifying the accounts to show in reasonable detail the length of
time, if any, overdue, and stating the nature and amount of any
refunds, set offs, reimbursements, discounts, or other adjustments
which are in the aggregate material and due to or claimed by such
creditor;
(c) Schedule 1.l6(c), attached hereto, listing the accounts
payable and notes and other obligations payable of lnvvision as of
April 20, 2001, or that arose thereafter other than in the ordinary
course of the business of Invvision, indicating the creditor and
amount, classifying the accounts to show in reasonable detail the
length of time, if any, overdue, and stating the nature and amount of
any refunds, set-offs, reimbursements, discounts, or other adjustments,
which in the aggregate are material and due or payable to Invvision
respecting such obligations;
(d) Schedule I .16(d), attached hereto, containing a copy of
the board of directors' and shareholders' minutes of Invvision since
inception
Section 1.17 Disclosure. The information set forth in this Agreement
and m the Schedules attached hereto is complete and accurate in all material
respects and does not contain any untrue statement of a material fact or omit to
state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
ARTICLE H
REPRESENTATIONS, COVENANTS, AND WARRANTIES
OFP. 1[E INVVISION SELAREHOLDERS
As an inducement to, and to obtain reliance of Omni Park, the Invvision
Shareholders represent and warrant as follows:
Section 2.01 Ownership of Invvision Shares. Each Invvision Shareholder
hereby represents and warrants with respect to itself that it is the legal and
beneficial owner of the number of Invvision shares set forth opposite its name
at the foot of this agreement, free and clear of any claims, charges, equities,
liens, security interests, and encumbrances whatsoever, and each such
shareholder has till right, power, and authority to transfer, assign, convey,
and deliver its Invvision shares; and delivery of such shares at the closing
will convey to Omni Park good and marketable title to such shares fret and clear
of any claims, charges, equities, liens, security interests, and encumbrances
whatsoever-
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AECLE III
REPRENTATIONS, COVENANTS, AND WARRANTIES
OF OMNI PARK
As an inducement to, and to obtain the reliance of Invvision and the
Invvision Shareholders, Omni Park represents and warrants as follows:
Section 3.01 Due Organization and Qualification. Omni Park is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Nevada and is duty authorized and qualified to do business
under all applicable laws, regulations, ordinances and orders of public
authorities and to carry on its business in the places and in the manner as now
conducted. Omni Park has the requisite power and authority to own, lease and
operate its assets and properties and to carry on its business as such business
is currently being conducted. Schedule 3.01 attached hereto, includes true,
complete and correct copies of the Articles/Certificate of Incorporation, as
amended, and Bylaws of Omni Park as in effect on the date hereof.
Section 3.02 Authorization: Non-Contravention; Approvals
(a) Omni Park has the requisite power and authority to enter
into this Agreement. The board of directors of Omni Park has authorized
the execution, delivery and performance of this Agreement and has
approved the transactions contemplated hereby. No additional corporate
proceedings on the part of Omni Park is necessary to authorize the
execution and delivery of this Agreement and the consummation by Omni
Park of the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by Omni Park, and, assuming due
authorization, execution and delivery hereof by Invvision and the
Invvision Shareholders, constitutes a valid and binding agreement of
Omni Park, enforceable against each of them in accordance with its
terms.
(b) The execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated by this Agreement in
accordance with the terms hereof will not, violate or result in a
breach of any provision of; or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default)
under, or result in the termination of, or accelerate the performance
required by) or result in a right of termination or acceleration under,
or result in the creation of any encumbrance upon any of the properties
or assets of Omni Park under any of the terms, conditions or provisions
of (I) the Articles/Certificate of Incorporation or Bylaws, (ii) any
laws applicable to Omni Park or any of the properties or assets of Omni
Park, or (iii) any material note, bond, indenture, mortgage, deed of
trust, license, franchise, permit, concession, lease or other material
instrument, obligation or agreement of any kind to which Omni Park is
now a xxxxx or by which any of its properties or assets may be hound or
affected.
(c) Omni Park does not and never has conducted any business of
any kind and as of the Closing will not have conducted any business.
Section 3.03 Capitalization The authorized capitalization of Omni Park
consists of fifty million (50,000,000) shares of common stock, $O.00E par value
per share, of which eight million, seven hundred xxxxx seven thousand? two
hundred forty four (8,737,244) shares are currently issued and outstanding and
zero shares of preferred stock are authorized. At the signing of this Agreement,
Omi Park shall cause to be effected a one for eight (1 for 8) reverse stock
split, with the capitalization to
8
remain at 50,000,000 common shares authorized, the par value to remain at
$0.001, and fractional shares to be rounded up. After such reverse split, the
outstanding shares of Omni Park (without effect of the rounding adjustment)
shall be one million, ninety two thousand, one hundred and fifty six (1,092,l56)
shares. All of the issued and outstanding shares of Omni Park are owned
beneficially and of record by the shareholders set forth hi Schedule 3.03
attached hereto. All of the issued and outstanding shares of Omni Park have been
duly authorized and validly issued, are fishy paid and nonassessable, and were
offered, issued, sold and delivered by Omni Park in compliance with all
applicable laws, including. without limitation, those laws concerning the
issuance of securities. None of such shares were issued in violation of the
preemptive rights of any past or present shareholder. No subscription, option,
warrant, call, convertible or exchangeable security, other conversion right or
commitment of any kind exists which obligates Omni Park to issue any of its
outstanding capital stock or to purchase any capital stock of Omni Park.
Section 3.04 Subsidiaries and Predecessor Corporations. Omni Park does
not own, of record or beneficially, or control, directly or indirectly, any
capital stock, securities convertible into or exchangeable for capital stock of
any other equity interest in any corporation, association or other business
entity- Omni Park is not, directly or indirectly, a participant in any joint
venture, limited liability company, partnership or other noncorporate entity.
Section 3.05 Financial Statements.
(a) Schedule 3.05(E- attached hereto, includes the audited
balance sheet of Omni Park as or December 31, 2000, together with an
audited statement of operations and cash flow for the fiscal year ended
December 317 2000.
(b) All such financial statements have been prepared in
accordance with generally accepted accounting principles. The audited
balance sheet presents fairly, as of its date, the financial condition
of Omni Park. The statements of income, stockholders1 equity, and
changes in financial condition reflect Fairly the information required
to be set forth therein by generally accepted accounting principles.
The books of account of Omni Park have been kept accurately in all
material respects in the ordinary course of business, the transaction
entered therein represent bona fide transactions, and the revenues,
expenses, assets and liabilities of Omni Park have been properly
recorded therein in all material respects.
Section 3.06 Liabilities and Obligations. Omni Park did not have, as of
the date of such balance sheet, nor has incurred since that date, except as and
to the extent reflected or reserved against therein, any liabilities or
obligations (whether absolute, accrued, contingent or otherwise) of any nature
which should be reflected in a balance sheet or the notes thereto, prepared in
accordance with generally accepted accounting principles.
Section 3.07 Taxes. Omni Park has timely filed al requisite federal,
state, local and other tax returns for all fiscal periods ended on or before the
date hereof, and has duly paid in full or made adequate provision in the
financial statements for the payment of all taxes for all periods ending at or
prior to the date hereof, except that the federal income tax return for the year
ended Dec ember 31, 2000 has not been filed. Omni Park will file it within
twenty one days from the date of this agreement and warrants that no tax is due.
Schedule 3.07, attached hereto7 includes true and correct copies of the federal
income tax returns of Omni Park filed since its date of inception. There are no
examinations in progress or claims against Omni Park relating to taxes for any
period prior to and including the balance sheet date and no written notice of
any claim for taxes, whether pending or threatened, has been received. Each of
such
9
income tax returns reflects the taxes due for the period covered thereby, except
for amounts which, in the aggregate, are immaterial. Omni Park does not owe any
unpaid federal, state, county, local, or other taxes (including any
deficiencies, interest, or penalties) through the date hereof, for which Omni
Park may be liable in its own right or as a transferee of the assets of; or as a
successor to7 any other corporation or entity. Furthermore, except as accruing
in the normal course of business, Omni Park does not owe any accrued and unpaid
taxes to date of this Agreement-
Section 3.08 Absence of Certain Changes or Events. Since December 31,
2000, except as set forth in this Agreement or in Schedule 3 EO8 attached
hereto, Omni Park has conducted its operations in the ordinary course of
business and there has not been:
(a) any material adverse change in the business, operations,
properties, condition (financial or otherwise), assets, liabilities
(contingent or otherwise), results of operations or prospects of Omni
Park;
(b) any damage, destruction, or loss (whether or not covered
by insurance) materially adversely affecting the business, operations,
properties, assets or condition of Omni Park;
(c) any change in the authorized capital stock of Omni Park or
in its outstanding securities or any change in the shareholders'
ownership interests in Omni Park or any grant of any options, warrants,
calls, conversion rights or commitments;
(d) any declaration or payment of any dividend or distribution
in respect of the stock or any direct or indirect redemption, purchase
or other acquisition of any of the stock of Omni Park;
(e) any increase in the compensation payable or to become
payable by Omni Park, including any increase in any profit sharing,
bonus, deferred compensation, insurance5 pension, retirement, or other
employee benefit plan, payment, or arrangement, to any of its
respective officers, directors, employees, consultants or agents,
except for ordinary and customary bonuses and salary increases for
employees in accordance with past practice, which bonuses and salary
increases are set forth in Schedule 3.08(e), attached hereto;
any significant work interruptions, labor grievances or claims filed;
(f) except for the Agreement, any sale or transfer, or any
agreement to sell or transfer, any material assets, properties or
rights of Omni Park to any person, including, without limitation, the
Omni Park shareholders, except assets, properties or rights no used or
useful in its business which, in the aggregate have a value of less
than $1,000;
(g) any cancellation, or agreement to cancel, any indebtedness
or other obligation owing to Omni Park, except debts or claims which in
the aggregate are of a value less than $1,000;
(h) any increase in the indebtedness of Omni Park, other than
accounts payable incurred in the ordinary course of business,
consistent with past practices or incurred in connection with the
transactions contemplated by this Agreement;
10
(i) any plan, agreement, arrangement granting any preferential
rights to purchase or interest in any of the assets, property or rights
of Omni Park or requiring consent of the transfer and assignment of
such assets, property or rights;
(j) any purchase or acquisition of; or agreement, plan or
arrangement to purchase or acquire, any property, rights or assets
outside of the ordinary course of any of Omni Park's business;
(k) any waiver of any material rights or claims of Omni Park;
(l) any material breach, amendment or termination of any
material contract, agreement, permit or other right to which Omni Park
is a xxxxx or any of its property is subject;
(m) any material change in Omni Park's method of management,
operation or accounting;
(n) any other material transaction by Omni Park outside the
ordinary course of business.
Section 3.09 Assets. Omni Park has good and indefeasible title to all
of its properties, inventory, interests in properties, and assets7 both real and
personal, which are reflected in the most recent audited balance sheet or
acquired after that date (except properties, interests in properties, and assets
sold or otherwise disposed of since such date in the ordinary course of
business), free and clear of all liens, pledges, charges, or encumbrances except
(a) statutory liens or claims not yet delinquent; (b) such imperfections of
title and easements as do not and will not materially detract from or interfere
with the present or proposed use of the properties subject thereto or affected
thereby or otherwise materially impair present business operations on such
properties; and (c) as described in Schedule 3.09 attached hereto. Except as set
forth in Schedule 3.09, attached hereto, Omni Park owns, free and clear of any
liens, claims, encumbrances, royalty interests, or other restrictions or
limitations of any nature whatsoever, any and all products it is currently
manufacturing, including the underlying technology and data, and all procedures,
techniques, marketing plans, business plans, methods of management, or other
information utilized in connection with Omni Park's business. Except as set
forth in Schedule 3.09, attached hereto, no third party has any right to, and
Omni Park has not received any notice of infringement of or conflict with
asserted rights of others with respect to any product, technology, data, trade
secrets, know-bow, proprietary techniques, trademarks, service marks, trade
names, or copyrights which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling, or finding, would have a materially adverse affect
on the business, operations, financial condition, income, or business prospects
of Omni Park or any material portion of its properties, assets, or rights.
Section 3.10 Litigation and Compliance with Law There are no claims,
actions, suits, proceedings or investigations pending or, to the knowledge of
Omni Park, threatened against or affecting Omni Park, at law or in equity, or
before or by any court or other governmental agency or instrumentality, domestic
or foreign, or before any arbitrator of any kind. No written notice of any
claim, action, suit, proceeding or investigation, whether pending or threatened,
has been received by Omni Park and, to Omni Park's knowledge, there is no basis
therefor. Omni Park does not have any knowledge of any default on its part with
respect to any judgment, order, writ, injunction, decree, award, rule, or
regulation of any court, arbitrator, or governmental agency or instrumentality
or of any circumstances which, after reasonable investigation, would result in
the discovery of such a default. Omni Park has conducted and is conducting its
business in compliance with all laws applicable to it, it assets or the
operation of its
11
business, except to the extent that noncompliance would not materially and
adversely affect the business, operations, assets or condition of Omni Park or
except to the extent that noncompliance would not result in the incurrence of
any material liability for Omni Park.
Section 3.11 Material Contracts
Except for this Agreement, Omni Park has not entered into any contract
with any other party.
Section 3.12 Labor and Employee Relations. Omni Park does not have any
employees.
Section 3.13 Schedules. Omni Park has delivered to Invvision as a part
of this Agreement the following additional schedules, all certified by the chief
executive officer of Omni Park as complete, true, and correct:
(a) Schedule 3.l3 (a), attached hereto, containing a statement
of cash on hand;
(b) Schedule 3.13(c), attached hereto, listing the accounts
payable and notes and other obligations payable of Omni Park as of
March 31, 2001, or that arose thereafter other than in the ordinary
course of the business of Omni Park, indicating the creditor and
amount, classifying the accounts to show in reasonable detail the
length of time, if any, overdue, and stating the nature and amount of
any refunds, set-offs, reimbursements) discounts, or other adjustments,
which in the aggregate are material and due or payable to Omni Park
respecting such obligations;
(c) Schedule 3.13(d), attached hereto containing a copy of the
board of directors' and shareholders' minutes approving the transaction
associated with this Agreement.
Section 3.14 Shareholders' Equity. At or prior to Closing, there shall
be at least $100.00 of cash in Omni Park and liabilities as set forth in the
Exhibit attached.
ARTICLE V
PLAN OF EXCHANGE
Section 4.0l The Exchange. On the terms and subject to the conditions
set forth in this Agreement, on the Closing Date (as defined in Section 4.05),
each of the Invvision Shareholders hereby agrees to assign, transfer, and
deliver to Omni Park, free and clear of all liens, pledges, encumbrances,
charges, restrictions, or known claims of any kind, nature, or description, the
number of shares of common stock of lnvvision set after his signature at the
foot of this Agreement, in the aggregate consisting all of the issued and
outstanding shares of common stock of Invvision, or four million, two hundred
fifty seven. three hundred ninety three (4,257,393) post split shares3 and Omni
Park agrees to acquire such shares on such date by issuing and delivering in
exchange therefore solely shares of Omni Park restricted common stock, par value
$0.00 I per share, in the amount of one post split share of Omni park for each
outstanding share of lnvvision, or an aggregate amount of four million, two
hundred fifty seven, three hundred ninety three (4,257,393) shares of Omni Park
common stock, or approximately seventy nine and a half percent (79.58%) of the
outstanding shares of Omni Park common stock (the "Exchanged Omni Park Stock").
At the Closing, each of the Invvision Shareholders shall, on surrender of his
certificate or certificates representing such Invvision shares to the registrar
and transfer agent, be entitled to receive a certificate or certificates
evidencing shares of the Exchanged Omni Park Stock as
12
provided herein. Upon the consummation of the transaction contemplated herein,
alt shares of capital stock of Invvision shall be held by Omni Park.
Section 4.02 Appointment of New Directors. In connection with the
Closing of the transactions contemplated by this Agreement, the existing
directors of Omni Park shall resign or be removed, seriatim, and shall appoint
Xxxxxx X. Xxx, Xxxx Xxxxxx Xxx and X.X. Xxxxx as directors to fill the vacancies
created thereby, to serve until the next annual stockholders' meeting of Omni
Park and their successors shall have been elected and qualified.
Section 4.03 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date and at such time as the
parties may agree ("Closing date"), within the ten- day period commencing with
the last to occur of the following: the Omni Park shareholders' meeting or such
date as way be prescribed by any federal or state regulatory agency or authority
prior to which the transactions contemplated hereby may not be effectuated. Such
Closing shall take place on April 20, 2001, at 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxx 00000.
Section 4.04 Closing Events. At the Closing, each of the respective
parties hereto shall execute, acknowledge, and deliver (or shall cause to be
executed, acknowledged, and delivered) any and all certificates, opinions,
financial statements, schedules, agreements, resolutions, rulings, or other
instruments required by this Agreement to be so delivered at or prior to the
Closing, together with such other items as may be reasonably requested by the
parties hereto and their respective legal counsel in order to effectuate or
evidence the transactions contemplated hereby.
ARTICLE V
SPECIAL COVENANTS
Section 5.01 Stockholder Meeting of Omni Park As soon as practicable
following the execution of this Agreement, and prior to the Closing, a majority
interest of the Omni Park shareholders shall approve the following proposals:
(a) the authorization and approval of this Agreement and the
transactions contemplated thereby;
(b) the election of Xxxxxx X. Xxx, Xxxx Xxxxxx Xxx and X.X.
Xxxxx as directors of Omni Park;
(c) the amendment to the certificate of incorporation of Omni
Park to change its name 10 INVVISION CAPITAL, INC.; and
(d) to take such other actions as the directors way determine
are appropriate.
Section 5.02 Access to Properties and Records. Omni Park and Invvision
will each afford to the officers and authorized representatives of the other
full access to the properties, books7 and records of each other as the case may
be, in order that each may have full opportunity to make such reasonable
investigation as it shall desire to make or the affairs of the other, and each
will furnish the other with such additional financial and operating data and
other informal ion as to the business and properties of each other, as the case
may be, as the other shall from time to time reasonably request.
13
Section 5.03 Delivery of Books and Records. At the Closing. each
company shall deliver each other the originals of the corporate minute books,
books of account, contracts, records, and all other books or documents now in
each company's possession or its representatives.
Section 5.04 Special Covenants and Representations Regarding the
Exchanged Stock The consummation of this Agreement and the transactions herein
contemplated, including the issuance of the Exchanged Omni Park Stock to the
shareholders of Invvision as contemplated hereby, constitutes the offer and sale
of securities under the Securities Act and applicable state statutes. Such
transaction shall be consummated in reliance on exemptions from the registration
and prospectus delivery requirements of such statutes which depend, inter alia,
upon the circumstances under which the Invvision Shareholders acquire such
securities. In connection with reliance upon exemptions from the registration
and prospectus delivery requirements for such transactions, at the Closing the
lnvvision Shareholders shall deliver to Omni Park Letters of representation in
the form attached hereto as Schedule 5.04 attached hereto.
Section 5.05 Third Party Consents and Certificates. Omni Park and
lnvvision agree to cooperate with each other in order to obtain any required
third party consents to this Agreement and the transactions herein and therein
contemplated.
Section 5.06 Actions Prior to Closing.
(a) From and after the date of this Agreement until the
Closing Date and except as the Agreement or Schedules attached hereto
or as permitted or contemplated by this Omni Park and lnvvision
respectively, will each: i) carry on its business in substantially the
same manner as it has heretofore;
ii) maintain and keep its properties in states of
good repair and condition as at present, except for
depreciation due to ordinary wear and tear and damage due to
casualty;
iii) maintain in full force and effect insurance
comparable m amount and in scope of coverage to that now
maintained by it;
iv) perform in all material respects all of its
obligation under material contracts, leases, and instruments
relating to or affecting its assets, properties, and business;
v) use its best efforts to maintain and preserve its
business organization intact, to retain its key employees, and
to maintain its relationship with its material suppliers and
customers; and
vi) fully comply with and perform in all material
respects all obligations and duties imposed on it by all
federal and state laws and all rules, regulations, and orders
imposed by federal or state governmental authorities
(b) From and after the date of this Agreement until the
Closing Date, neither Omni Park nor Invvision will:
14
i) make any change in their Articles or Certificate
of Incorporation (except as provided for in Section 5.0lE or
Bylaws;
ii) take any action described in Section 1.08 in the
case of lnvvision or in Section 3.08, in the case of Omni Park
(except as permitted therein or as disclosed in the applicable
party's schedules); or
iii) enter into or amend any contract, agreement, or other
instrument of any of the types described in such party's
schedules, except that a party may enter into or amend any
contract, agreement, or other instrument in the ordinary course
of business involving the sale of goods or services.
Section 5.07 Indemnification.
(a) Invvision hereby agrees to indemnify Omni Park each of the
officers, agents and directors of Omni Part as of the date of execution
of this Agreement against any loss, liability, claim, damage, or
expense (including, but not limited to, any and El expense whatsoever
reasonably incurred in investigating, preparing, or defending against
any litigation, commenced or threatened, or any claim whatsoever), to
which it or they may become subject arising out of or based on any
inaccuracy appearing in or misrepresentation made under Article I of
this Agreement. The indemnification provided for in this paragraph
shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement. Indemnification
shall include the right of the indemnified party to set-off with prior
notice.
(b) Omni Park hereby agree to indemnify Invvision, the
Invvision Shareholders, and each of the officers, agents and directors
of Invvision as of the date of execution of this Agreement against any
loss, liability, claim, damage, or expense (including, but not limited
to, any and all expense whatsoever reasonably incurred in
investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever), to which it or they
may become subject arising out of or based on any inaccuracy appearing
in or misrepresentation made under Article Ill of this Agreement. The
indemnification provided for in this paragraph shall survive the
Closing and consummation of the transactions contemplated hereby and
termination of this Agreement. Indemnification shall include the right
of the indemnified party to set-off with prior notice.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF INVVISION
AND THE INVVISION SHAREHOLDERS
The obligations of Invvision and the Invvision Shareholders under this
Agreement are subject to the satisfaction, at or before the Closing Date, of the
following conditions:
Section 6.01 Accuracy of Representations. The representations and
warranties xxxx by Omni Park in this Agreement were true when made and shall be
true at the Closing Date with the same force and effect as if such
representations and warranties were made at and as of the Closing Date (except
for changes therein permitted by this Agreement), and Omni Park shall have
performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by Omni Park
15
prior to or at the Closing. Invvision shall be furnished with a certificate,
signed by a duly authorized officer of Omni Park and dated the Closing Date, to
the foregoing effect.
Section 6.02 Officer's Certificates. Invvision shall have been
furnished with a certificate dated the Closing Date and signed by a duty
authorized officer of Omni Park to the effect that no litigation, proceeding,
investigation, or inquiry is pending or, to the knowledge of Omni Park
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement.
Section 6.03 No Material Adverse Change. Prior to tie Closing Date;
there shall not have occurred any material adverse change in the financial
condition, business, or operations of Omni Park nor shall any event have
occurred which, with the lapse of time or the giving of notice, may cause or
create any material adverse change in the financial condition, business, or
operations of Omni Park.
Section 6.04 Good Standing. Invvision shall have received a certificate
of good standing from the Secretary of State of the state of Texas or other
appropriate office, dated as of a date within ten days prior to the Closing Date
certifying that Omni Park is in good standing as a corporation in the state of
Nevada and still has to file tax returns required to be flied by it - Omni Park
represents and warrants that no tax is due.
Section 6.05 Board of Directors Approval. The Board of Directors of
Omni Park shall have approved this Agreement, the transactions contemplated
hereby, and the other matters described in Section 4.01.
Section 6.06 Other Items.
(a) Invvision shall have received Uniform Commercial Code
certificates from the appropriate state of local authority or agency
for each county and state in which any personal properly of Omni Park
with a value in excess $1,000 is situated, dated as of the Closing
Date, to the effect that there are no liens on such personal
property, other than those disclosed in Schedule 6.06 (a) attached
hereto.
(b) Omni Park shall have received such further documents,
certificates, or instruments relating to the transactions
contemplated hereby as Omni Park may reasonably request.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OP OMNI PARK
The obligations of Omni Park under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 7.01 Accuracy of Representations. The representations and
warranties made by Invvision and the Invvision Shareholders in this Agreement
were true when made and shall be true as of the Closing Date (except for changes
therein permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing Date, and
lnvvision and the Invvision Shareholders shall have performed and complied with
all covenants and conditions required by
16
this Agreement to be performed or complied with by Invvision and the Invvision
Shareholders prior to or at the Closing. Omni Park Shall have been furnished
with a certificate, signed by a duly authorized executive officer of Invvision
and dated the Closing Date, to the foregoing effect.
Section 7.02 stockholder Approval. The stockholders of Invvision shall
have approved this Agreement, the tram actions contemplated hereby, and the
other matters described in Section 4.01.
Section 7.03 Officer's Certificate. Omni Park shall have been furnished
with a certificate dated the Closing Date and signed by a duly authorized
executive officer of Invvision to the effect that no litigation, proceeding,
investigation, or inquiry is pending or, to the best knowledge of Invvision
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement.
Section 7.04 No Material Adverse Ct-re, Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business, or operations of Invvision nor shall any event have
occurred which, with the lapse of time or the giving of notice, may cause or
create any material adverse change in the financial condition, business, or
operations of lnvvision.
Section 7.05 Good Standing. Omni Park shall have received a certificate
of good standing from the Secretary of State of the state of Texas or other
appropriate office, dated as of a date within ten days prior to the Closing Date
certifying that lnvvision is in good standing as a corporation in the State of
Texas and has filed alt tax returns required to have been filed by it to date
and has paid all taxes reported as due thereon.
Section 7.06 Other Items.
(a) Omni Park shall have received Uniform Commercial Code
certificates from the appropriate state of local authority or agency
for each county and state in which any individual piece of personal
property of Invvision with a value in excess $10,000 is situated, dated
as of the Closing Date, to the effect that there are no liens on such
personal property, other than those disclosed in a schedule attached
hereto.
(b) Omni Park shall have received a shareholders' list of
lnvvision containing the name, address, and number of shares held by
each lnvvision shareholder as of the date of Closing certified by an
executive officer of Omni Park as being true, complete, and accurate.
(c) Omni Park shall have received such flintier documents,
certificates, or instruments relating to the transactions contemplated
hereby as Omni Park may reasonably request.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Brokers. Omni Park and Invvision agree that there were no
finders or brokers involved in bringing the parties together or who were
instrumental in the negotiation, execution, or consummation of this Agreement,
except Twin Pointe, Ltd. to whom Omni Park has agreed to issue 250,000 post
split S-8 shares of common stock. Omni Park and Invvision each agree to
indemnify the other against any claim by any third person other than those
described above for any commission,
17
brokerage, or finders, fee arising from the transactions contemplated hereby
based on any alleged agreement or understanding between the indemnifying party
and such third person, whether express or implied from the actions of the
indemnifying party. Omni Park, to be renamed Invvision Capital, Inc., will be
responsible for filing the S-8 with the Securities & Exchange Commission.
Section 8.02 Governing Law. This Agreement shall be governed by,
enforced, and construed under and in accordance with the laws of the United
States of America and, with respect to matters of state law, with the laws of
Texas.
Section 8.03 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to Omni Park, to: OMNI PARKPASS, INC.
000-X Xxxx Xxxx #000
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxx, President
If to lnvvision to: INVVISION CAPITAL, INC.
0000 Xxxxxxx Xxxx
Xxxxx X00
Xxxxxxxxxx, Xxxxx 00000
Attention: X.X. Xxxxx,
With copies to: Gardere & Xxxxx, ELL.P.
3000 Thanksgiving Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 7520E-476l
Attention: I. Xxxxx Xxxxxxxx, Esq.
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed, or
telegraphed.
Section 8.04 Attorney's Fees. In the event that any party institutes
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the breaching party or parties shall
reimburse the nonbreaching party or parties for all costs, including reasonable
attorneys1 fees, incurred in connection therewith and in enforcing or collecting
any judgment rendered therein.
Section 8.05 Confidentiality. Each party hereto agrees with the other
parties that, unless and until the transactions contemplated by this Agreement
have been consummated, it and its representatives will hold in strict confidence
at! data and information obtained with respect to another party or any
subsidiary' thereof from any representative, officer, director, or employee, or
from any books or records or from personal inspection, or such other party, and
shall not use such data or information or disclose the same to others, except
(i) to the extent such data or information is published, is a matter of public
knowledge, or is required by law to be published; and (ii) to the extent that
such data or information must be used or disclosed in order to consummate the
transactions contemplated by this Agreement
18
Section 8.06 Schedules; Knowledge. Each party is presumed to have fish
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 8.07 Third Party Beneficiaries. This contract is solely between
Omni Park, Invvision and the Invvision Shareholders, and, except as specifically
provided, no director, officer, stockholder, employee, agent independent
contractor, or any other person or entity shall be deemed to be a third party
beneficiary of this Agreement.
Section 8.08 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter hereof, including
this Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of dealing,
understandings, agreements, representations5 or warranties, written or oral
except as set forth herein.
Section 8.09 Survival; Termination. The representations, warranties,
and covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated-
Section 8.10 Counterparts. This Agreement nay be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument. Facsimile transmission of any signed
original document and/or retransmission of any signed facsimile transmission
will be deemed the same as delivery of an original. At the request of any party,
the parties will confirm facsimile transmission by signing a duplicate original
document.
Section 8.11 Amendment or Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the tern's contained herein, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
19
IN WITNESS WUEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
as of the date first above-written.
OMNI XXXXXXXX.XXX INC.
By ____________________
Xxxxxxx Xxxxx, President
INVVISION CAPITAL, INC.
By ____________________
Xxxxxx X. Xxx, Chairman
20
