Ex-2.1
ACQUISITION AGREEMENT
This Agreement, entered into this 19th day of December, 2003,
by,
between and among Griffin Industries, Inc.,
a corporation organized under the
laws of the State of Maryland (hereinafter
the "Purchaser"), Global Funding
Group, Inc. ("Global") and Bok Wong and
To-Hon Lam ("the Perfisans
Shareholders") and Perfisans Networks
Corporation, an Ontario corporation
(hereinafter the "Company").
WITNESSETH:
WHEREAS, Purchaser wishes to acquire, and Perfisans Shareholders
are
willing to exchange, all of the outstanding
stock of the Company in exchange for
common stock of the Purchaser;
NOW, THEREFORE, in consideration of the mutual terms and covenants
set
forth herein, Purchaser, Global and the
Perfisans Shareholders approve and adopt
this Acquisition Agreement and mutually
covenant and agree with each other as
follows:
ARTICLE I
SHARES TO BE TRANSFERRED AND SHARES TO BE ISSUED
1.01. On
the closing date all of the shareholders of the Company
shall transfer to Purchaser certificates
for the number of shares of the common
and Preferred stock of the Company (the
"Perfisan Shares") described in Schedule
"A" , attached hereto and incorporated
herein, which in the aggregate shall
represent all of the issued and outstanding
shares of capital stock of the
Company. Such certificates shall be duly
endorsed in blank by all of the
Company's shareholders or accompanied by
duly executed stock powers in blank
with signatures guaranteed. Alternatively,
the shareholders may assign their
rights to the Perfisan Shares if the shares
have not been physically issued in
the form of stock certificates, or if the
certificates have been lost. In the
event that a particular shareholder is not
in possession of a stock certificate,
he will complete a lost stock affidavit
satisfactory to the Company.
1.02. In
exchange for the transfer of all of the capital stock of
the Company pursuant to sub-section 1.a.
hereof, Purchaser shall on the closing
date and contemporaneously with such
transfer of the capital stock of the
Company to it by the shareholders, or
rights thereto, issue and deliver to the
shareholders an aggregate of 32,857,967
shares of common stock of the Purchaser
(the "Griffin Shares") in the breakdown
specified on Schedule "A" hereof, which
number, along with an aggregate of
5,584,993 outstanding but unexercised options
and warrants of the Company and 2,600,000
other shares being issued upon
conversion of debt and a private stock sale
shall be equal to 95% of Purchaser,
on a fully diluted basis, at the time of
closing. In the event that a
shareholder does not possess a stock
certificate representing the Perfisan
Shares or has not executed a lost stock
affidavit, the Griffin Shares in
Schedule A will be issued but held by the
Company pending satisfactory evidence
of loss or presentment of the
certificate.
1.03. The
parties intend that this acquisition and exchange of
shares is to be a "tax free"
exchange/transaction pursuant to Section
368(a)(1)(b) of the Internal Revenue Code
of the United States.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
ALL OF THE COMPANY ON BEHALF OF ALL OF THE
COMPANY'S SHAREHOLDERS
2.01
OWNERSHIP OF STOCK. The shareholders listed on Schedule A are
the record owners and holders of the number
of fully paid and non-assessable
shares of the Company listed in Schedule
"A" hereto as of the date hereof and
will continue to own such shares of the
stock of the Company until the delivery
thereof to the Purchaser on the closing
date and all such shares of stock are or
will be on the closing date owned free and
clear of all liens, encumbrances,
charges and assessments of every nature and
subject to no restrictions with
respect to transferability.
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All exchanging shareholders will have full
power and authority to assign and
transfer their shares of the Company in
accordance with the terms hereof.
2.02
ACCREDITED STATUS. The Perfisans' Shareholders are accredited
investors as that term is used under the
Securities Act of 1933, as amended (the
"Act"). As such, the Perfisans'
Shareholders are experienced investors who are
fully capable of determining the risks
associated with this type of investment
including, but not limited to, complete
loss of their investment. Not more than
35 of the total shareholders identified on
Schedule A hereto are not "accredited
investors", as such term is defined under
the Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
SHAREHOLDERS
3.01
CAPITALIZATION Except for this Agreement, there are no
outstanding options, contracts, calls,
commitments, agreements or demands of any
character relating to the stock of the
Company.
3.02
ORGANIZATION AND AUTHORITY.
(a) The
Company is a corporation duly organized,
validly existing and in good standing under
the laws of the province of Ontario,
with all requisite corporate power and
authority to own, operate and lease its
properties and to carry on its business as
now being conducted, is duly
qualified and in good standing in every
jurisdiction in which the property
owned, leased or operated by it, or the
nature of the business conducted by it,
makes such qualification necessary to avoid
material liability or material
interference in its business operations,
and is not subject to any agreement,
commitment or understanding which restricts
or may restrict the conduct of its
business in any jurisdiction or
location.
(b)
The
outstanding shares of the Company are legally and
validly issued, fully paid and
non-assessable.
(c) The
Company does not own five percent (5%) or more of
the outstanding stock of any corporation,
except as listed on the Disclosure
Statement.
(d) The minute
book of the Company made available to
Purchaser contains complete and accurate
records of all meetings and other
corporate actions of the shareholders and
the Board of Directors (and any
committee thereof) of the Company.
(e) The
Disclosure Statement contains a list of the
officers, directors and shareholders of the
Company and copies of the articles
of incorporation and by-laws currently in
effect of the Company.
(f) The
execution and delivery of this Agreement does
not, and the consummation of the
transaction contemplated hereby will not,
subject to the approval and adoption by all
of the shareholders of the Company,
violate any provision of the
certificate/articles of incorporation or bylaws of
the Company, or any provisions thereof, or
result in the acceleration of any
obligation under, any mortgage, lien,
lease, agreement, instrument, court order,
arbitration award, judgment or decree to
which the Company is a party, or by
which it is bound, and will not violate any
other restriction of any kind or
character to which it is subject.
(g) The
authorized capital stock of the Company is an
unlimited number of shares of common stock,
$.001 par value, and an unlimited
number of shares of preferred stock, $.001
par value, of which an aggregate of
32,857,967 shares of common stock will be
issued and outstanding at the time of
closing. The Company will have 5,584,993
outstanding warrants and/or options to
purchase shares of common or preferred
stock at the closing date, which options
and/or warrants upon closing will be
exerciseable to purchase 5,584,993 shares
of the Purchaser.
3.03
FINANCIALS.
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(a)
Audited
financial statements (hereafter "financial
statements") of the Company for the years
December 31, 2000 through December 31,
2002, as well as un-audited financial
statements for the period ending September
30, 2003, will be delivered by the Company
to the Purchaser no later than sixty
days from the date hereof. Said financial
statements will be true and correct in
all material respects and present an
accurate and complete disclosure of the
financial condition of the Company as of
its date and for the periods covered.
(b) All
accounts receivable, if any, (net of reserves for
doubtful accounts) of the Company shown on
the books of account on the statement
date and as incurred in the normal course
of business since that date, are
collectible in the normal course of
business.
(c) The
Company has good and marketable title to all of
its assets, business and properties
including, without limitation, all such
properties reflected in the balance sheet
as of the statement date except as
disposed of in the normal course of
business, free and clear of any mortgage,
lien, pledge, charge, claim or encumbrance,
except as shown on said balance
sheet as of the statement date and, in the
case of real properties except for
rights-of-way and easements which do not
adversely affect the use of such
property. Any encumbrances will be included
in the attached Disclosure
Statement.
(d) All
currently used property and assets of the
Company, or in which it has an interest, or
which it has in possession, are in
good operating condition and repair subject
only to ordinary wear and tear.
3.04
CHANGES SINCE THE STATEMENT DATE. Since the financial
statement date, except as disclosed in the
Disclosure Statement, there will not
have been any material negative change in
the financial position or assets of
the Company.
3.05
LIABILITIES. To the best of the knowledge of management, there
are no material liabilities of the Company,
whether accrued, absolute,
contingent or otherwise, which arose or
relate to any transaction of the
Company, its agents or servants occurring
prior to the statement date, which are
not disclosed by or reflected in said
financial statements, except as disclosed
in the Disclosure Statement. There are no
such liabilities of the Company which
have arisen or relate to any transaction of
the Company, its agents or servants,
occurring since the statement date, other
than normal liabilities incurred in
the normal conduct of the business of the
Company, and none of which have a
material adverse effect on the business or
financial condition of the Company,
except as disclosed in the Disclosure
Statement. As of the date hereof, there
are no known circumstances, conditions,
happenings, events or arrangements,
contractual or otherwise, which may
hereafter give rise to liabilities, except
in the normal course of business of the
Company, except as disclosed in the
Disclosure Statement.
3.06
TAXES. All federal, foreign, county and local income, ad
valorem, excise, profits, franchise,
occupation, property, sales, use gross
receipts and other taxes (including any
interest or penalties relating thereto)
and assessments which are due and payable
have been duly reported, fully paid
and discharged as reported by the Company,
and there are no unpaid taxes which
are, or could become a lien on the
properties and assets of the Company, except
as provided for in the financial statements
of their date, or have been incurred
in the normal course of business of the
Company since that date. All tax returns
of any kind required to be filed have been
filed and the taxes paid or accrued.
3.07
ACCURACY OF ALL STATEMENTS MADE BY COMPANY. No representation
or warranty by the Company and Shareholders
in this Agreement, nor any
statement, certificate, schedule or exhibit
hereto furnished or to be furnished
by or on behalf of the Shareholders
pursuant to this Agreement, nor any document
or certificate delivered to Purchaser
pursuant to this Agreement or in
connection with actions contemplated
hereby, contains or shall contain any
untrue statement of material fact or omits
or shall omit a material fact
necessary to make the statement contained
therein not misleading.
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3.08
LIMITATION OF SUBSEQUENT CORPORATE ACTIONS. It is expressly
understood and agreed that the Company, and
its affiliates and shareholders,
will take all steps necessary to insure
that with respect to the operations of
the Purchaser for a period of thirteen
months following the Acquisition) ) (i)
there shall be no reverse split, which is
effected in a manner, which results in
a percentage dilution to the shareholders
of Griffin, and 2) the assets existing
in the new subsidiary, or to be transferred
in the new subsidiary, shall remain
in place as part of the business
operations.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND GLOBAL
Purchaser and Global represent and warrant as follows:
4.01
Organization and Authority. The Purchaser is a corporation
duly organized, validly existing and in
good standing under the laws of the
State of Maryland, with full power and
authority to enter into and perform the
transactions contemplated by this
Agreement, and with all requisite corporate
power and authority to own, operate and
lease its properties and to carry on its
business as now being conducted, is duly
qualified and in good standing in every
jurisdiction in which the property owned,
leased or operated by it, or the
nature of the business conducted by it,
makes such qualification necessary to
avoid material liability or material
interference in its business operations,
and is not subject to any agreement,
commitment or understanding which restricts
or may restrict the conduct of its business
in any jurisdiction or location. The
Purchaser is presently qualified to do
business in the State of Nevada.
(a) The
outstanding shares of the Purchaser are legally
and validly issued, fully paid and
non-assessable.
(b) The
Purchaser does not own five percent (5%) or more
of the outstanding stock of any
corporation, except as listed on the Disclosure
Statement.
(c) The minute
book of the Purchaser made available to
the Company and Shareholders contains
complete and accurate records of all
meetings and other corporate actions of the
shareholders and the Board of
Directors (and any committee thereof) of
the Purchaser.
(d) The
Disclosure Statement contains a list of the
officers, directors and shareholders of the
Purchaser and copies of the articles
of incorporation and by-laws currently in
effect of the Purchaser.
(e)
The execution and
delivery of this Agreement does
not, and the consummation of the
transaction contemplated hereby will not
violate any provision of the
certificate/articles of incorporation or bylaws of
the Purchaser, or any provisions thereof,
or result in the acceleration of any
obligation under, any mortgage, lien,
lease, agreement, instrument, court order,
arbitration award, judgment or decree to
which the Purchaser is a party, or by
which it is bound, and will not violate any
other restriction of any kind or
character to which it is subject.
(f) The
authorized capital stock of the Purchaser is
Fifty Million (50,000,000) shares of common
stock, $.001 par value, and Five
Million (5,000,000) shares of preferred
stock, of which 43,203,115, common
shares of such stock will be issued and
outstanding at the time of closing, out
of which 38,442,960 shares will be
cancelled simultaneously. There are no
preferred shares outstanding at the time of
the acquisition. There are no
outstanding options, warrants or other
securities that may convert into or be
exerciseable for shares of common stock of
Purchaser. Any existing options and
warrants have been cancelled or have
expired without being exercised.
(g) Purchaser
represents and warrants that at the time of
closing it will have no assets or
liabilities other than that which are
reflected in its 10-Q for the quarter ended
September 30, 2003. All of such
liabilities shall have been converted to
common stock resulting in no
outstanding liabilities at the time of
closing.
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(h) Purchaser
represents that at the time of closing it
will have taken all necessary steps to
comply with all applicable state and
federal securities laws and regulations and
that, to the knowledge of the
Purchaser, at the time of closing, there is
no litigation, arbitration,
governmental or other proceeding (formal or
informal), claim or investigation
pending or threatened, with respect to the
Purchasers compliance with any and
all applicable securities laws and
regulations. Purchaser represents that all of
the Purchaser's existing securities were
issued in accordance with all
applicable federal and state securities'
laws.
The validity and performance of this Agreement is not subject to
any
permit, approval or consent of any entity,
contractual or regulatory, except for
the approval of the Purchaser's Board of
Directors and any required shareholder
approval as required by Maryland law.
4.02
PERFORMANCE OF THIS AGREEMENT. The execution and performance
of this Agreement and the issuance of stock
contemplated hereby has been
authorized by the board of directors of
Purchaser.
4.03
FINANCIALS.
(a) True
copies of the audited financial statements of
the Purchaser as of December 31, 2001 and
2002 are available to the Company on
the SEC EDGAR filing system. These
statements have been examined and certified
by certified public accountants. Un-audited
Interim financial statements through
September 30, 2003 have also been filed
with the SEC. Said financial statements
are true and correct in all material
respects and present an accurate and
complete disclosure of the financial
condition and earnings of the Purchaser
