EXHIBIT 2.1
PLAN OF REORGANIZATION
AND
STOCK PURCHASE AGREEMENT
BETWEEN
FLEXXTECH HOLDINGS, INC.
AND
OPTIV.COM
DATED
SEPTEMBER 15, 2000
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THIS STOCK PURCHASE AGREEMENT ("Agreement"), dated as of September 15,
2000, is made by and between Flexxtech Holdings, Inc., a Nevada corporation
("Flexxtech Holdings"), and Opitv.com, a Nevada corporation ("Opitv").
WHEREAS Flexxtech Holdings and Opitv have agreed that Flexxtech Holdings
shall purchase majority ownership of the common stock of Opitv, with each
corporation surviving pursuant their respective state's laws.
NOW THEREFORE, in consideration of the mutual promises and of the terms,
conditions, representations, warranties and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 Agreement to Purchase Shares. Upon the terms and subject to the
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conditions of this Agreement, Flexxtech Holdings hereby agrees to purchase
eighty percent (80%) of the issued and outstanding common stock of Opitv (the
"Purchase Price"). Opitv currently has or will have at the Close of this
Agreement, One Million Eight Hundred Ninety Four Thousand Five Hundred
(1,894,500) shares of issued and outstanding common stock and, at 80%, Flexxtech
Holdings will purchase Seven Million Five Hundred Seventy Eight Thousand
(7,578,000) shares of newly issued common stock of Opitv (the "Common Stock").
In exchange for the Common Stock, Flexxtech Holdings agrees to issue to Opitv
$625,000 in the form of 100,000 shares of common stock of Flexxtech
Corporation. The exchange shall be adopted as a tax free Plan of Reorganization
in accordance with the provisions of Section 368 of the Internal Revenue Code
of 1986, as amended. Further, key employees of Opitv at the request of Flexxtech
will enter into new employment agreements or Flexxtech may assume current
employment agreements. Employment agreements with Key employees which include
stock options to be issued to such key employees. At the Execution of this
Agreement, (the "Closing"), Opitv will deliver a stock certificate for
7,578,000 shares of common stock in the name of Flexxtech Holdings, Inc.
Flexxtech Holdings' consideration shall be payable as follows:
(a) At Closing, Flexxtech shall issue to Opitv One Hundred Thousand
(100,000) shares of Flexxtech Corporation newly issued common
stock.
(b) At Closing Howard Frantom, pursuant to an employment agreement,
will be issued stock options to purchase One Hundred Eight
Thousand (180,000) shares of Flexxtech Corporation at an exercise
price of $.001. Pursuant to the three year Employment Agreement,
60,000 shares will be vested at January 1, 2001, 60,000 shall be
vested on January 1, 2002, and 60,000 shall be vested on January
1, 2003.
(c) At Closing, Flexxtech shall issue to John Alkire, pursuant to an
employment agreement, stock options to purchase One Hundred and
Twenty Thousand (120,000) shares of Flexxtech Corporation at an
exercise price of $.001. Pursuant to the three year Employment
Agreement, 40,000 shares will be vested on January 1, 2001,
40,000 shall be vested on January 1, 2002, and 40,000 shall be
vested on January 1, 2003.
1.2 Registration Rights. During the one year period commencing at the
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Closing date, whenever Flexxtech Corporation files a registration statement
under the 1933 Act (including a "post-effective amendment" to a previous
registration statement) which relates to a current offering of securities of
Flexxtech Corporation (except in connection with an offering on Forms S-4 or S-
8, or any other inappropriate form(s)), Flexxtech Corporation shall offer to the
Opitv shareholders described in section
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1.1(C)1 and 1.1(C)2 the opportunity to register or qualify the shares for public
trading. Flexxtech Corporation shall give at least 30 days' prior notice to the
Opitv Shareholders of its intention to file a registration statement under the
1933 Act, which notice shall constitute an offer to the Opitv Shareholders. The
Opitv Shareholders shall pay for their own selling expenses, commissions or
underwriting discounts.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF OPITV.COM
Opitv represents and warrants to, and agrees with Flexxtech Holdings as
follows:
2.1 Organization.
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(a) Opitv is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada and California. Opitv has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. Opitv are duly
qualified to do business and in good standing in each jurisdiction in which its
property or business makes such qualification necessary. Opitv have heretofore
delivered to Flexxtech Holdings true, accurate and complete copies of Opitv
Articles of Incorporation and By-Laws as in effect on the date hereof and
minutes of al meetings of shareholders and directors of Opitv held through and
including the date of this Agreement. Except as set forth on Schedule 3.1, Opitv
is not in violation of any of the provisions of its Articles of Incorporation
nor its By-Laws.
2.2 Authority Relative to this Agreement. Opitv has full corporate power
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and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transaction contemplated hereby have been duly and
validly authorized by the Board of Directors of Opitv and, except for approval
of the shareholders of Opitv, no other corporate proceedings on the part of
Opitv are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Opitv and constitutes a valid and binding agreement,
enforceable against it in accordance with it terms.
2.3 No Conflict; Required Filings and Consents.
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(a) The execution and delivery of this Agreement by Opitv does not,
and the consummation of the transactions contemplated hereby will not, (i) to
the best knowledge of Opitv after due inquiry ("Best Knowledge"), conflict with
or violate any law, regulation, court order, judgment or decree applicable to
Opitv or by which its properties are bound or affected; (ii) except as set
forth on Schedule 2.3, violate or conflict with either the Certificate of
Incorporation or By-Laws of; or (iii) except as set forth on Schedule 2.3,
result in any breach of or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, or give to others any
right of termination or cancellation of, or result in the creation of a lien on
any of the properties of Opitv pursuant to any contract to which it is a party
or by which Opitv or any of its respective properties is bound or affected.
(b) Except for compliance with applicable state securities laws,
Opitv are not required to submit any notice, report or other filing with any
governmental entity or regulatory body, domestic or foreign, in connection with
the execution, delivery or performance of this Agreement or the consummation of
the transactions contemplated hereby. No waiver, consent, approval or
authorization of any governmental entity or regulatory body, domestic or
foreign, is required to be obtained or made by Opitv in connection with its
execution, delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
2.4 Capitalization; Legality of Issuance of Opitv.
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(a) Opitv has authorized capital stock of 25,000,000 shares of common
stock, with $.001 par value, of which 9,472,500 shares are issued and
outstanding. All the outstanding shares of capital stock of Opitv have been duly
authorized and are validly issued, fully paid and non-assessable. No options,
warrants, conversion rights, subscriptions or purchase rights of any nature to
acquire from Opitv, or commitments of Opitv to issue shares of capital stock or
other securities are authorized, issued or outstanding, nor is Opitv obligated
in any other manner to issue shares or rights to acquire any of its capital
stock or other securities. Except as set forth in Schedule 2.4, none of Opitv's
outstanding securities or authorized capital stock is subject to any rights of
redemption, repurchase, rights of first refusal, preemptive rights or other
similar rights, whether contractual, statutory or otherwise, for the benefit of
Opitv, any stockholder, or any other person or entity. Except as set forth in
Schedule 2.4, there are no restrictions on the transfer of shares of capital
stock of Opitv other than those imposed by relevant federal and state securities
laws and as otherwise contemplated by this Agreement. There are no agreements,
understandings, trusts or other collaborative arrangements or understandings
concerning the voting or transfer of the capital stock of Opitv. Subject to the
filing of one or more Notices of Transaction pursuant to Texas law, the offer
and sale of all capital stock and other securities of Opitv issued before the
date hereof and to be issued hereafter complied with or were exempt or will
comply with or be exempt from all applicable federal and state securities laws,
and no stockholder has a right of rescission or damages with respect thereto.
Except as set forth on Schedule 2.4, Opitv does not have outstanding, and has no
obligation to grant or issue, and "phantom stock" or other right measured by the
profits, revenues or results of operations of Opitv or any portion thereof; or
any similar rights.
(b) The Shares, when issued, sold and delivered in accordance with
the terms hereof for the per share Purchase Price, will be validly issued, fully
paid and non-assessable and will be issued in compliance with all applicable
federal and state securities laws.
2.6 Financial Statements.
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(a) Opitv's respective balance sheets as of August 30, 2000 (the
"August 2000 Balance Sheet"), and the related statements of income and retained
earnings for the eight months ended August 30, 2000 (the "Company Financial
Statements") which have been compiled by Opitv, copies of which have been
delivered to Flexxtech Holdings, fairly represent the financial condition of
Opitv as of said dates and the results of its operations for the periods then
ended. Opitv shall employ its best efforts to deliver audited consolidated
financial statements within ninety (90) days of the date hereof which shall be
prepared in conformity with Generally Accepted Accounting Principles ("GAAP")
consistently applied for the periods covered (the "Audited Financial
Statement"). The Audited Financial Statements (i) shall be prepared in
accordance with GAAP applied on a consistent basis; (ii) in accordance with the
books and records of Opitv; and (iii) shall present fairly the financial
position and results of operations of Opitv at the dates and for the periods to
which they relate. Opitv have maintained its books of account in accordance with
GAAP applied on a consistent basis, and such books and records are, and during
the periods covered by Opitv Financial Statements were, correct and complete in
all material respects, fairly and accurately reflect and reflected the income,
expenses, assets and liabilities of Opitv, and provide and provided a fair and
accurate basis for the preparation of Opitv Financial Statements and of the tax
returns and reports of Opitv.
(b) Except and as to the extent reflected in Opitv's August 30, 2000
Balance Sheet, Opitv did not have any direct or indirect liabilities, whether
due or to become due, or arising out of transactions entered into, or any state
of facts existing, on or prior to August 30, 2000, which would be required to be
reflected on Opitv's Balance Sheet in accordance with GAAP.
2.6 Real and Personal Property.
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(a) Opitv owns no real property. Opitv have delivered to Flexxtech
Holdings correct and complete copies of leases and subleases for all real
property leased or sublease by Opitv. With respect to each such lease and
sublease:
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(i) the lease or sublease is legal, valid, binding,
enforceable against Opitv, as to lessor, the lease is in full force and effect;
(ii) except for the lessor's consent to the Combination
Transaction, the lease or sublease will continue to be legal, valid, binding,
enforceable and in full force and effect on substantially the same terms
following the consummation of the transaction contemplated hereby;
(iii) Opitv are not, and no other party to the lease or
sublease is in breach or default, and no event has occurred which, with notice
or lapse of time, would constitute a breach or default, or permit termination,
modification or acceleration thereunder;
(iv) there are no disputes, oral agreements, or forbearance
programs in effect as to the lease or sublease;
(v) with respect to each sublease, the representations and
warranties set forth in subsections (i) through (iv) above are true and correct
with respect to the underlying lease;
(vi) Opitv have not assigned, transferred, conveyed, mortgaged,
deeded in trust, or encumbered any interest in the leasehold or subleasehold;
(vii) all facilities leased or subleased thereunder have
received all approvals of governmental authorities (including licenses and
permits) required in connection with the operation thereof and have been
operated and maintained in accordance with applicable laws, rules and
regulations;
(viii) all facilities lease or subleased thereunder are supplied
with utilities and other services necessary for the operation of said
facilities.
(b) Opitv have good and marketable title to, or valid leasehold
interests in, all other assets used or held for use in the conduct of its
business, including, without limitation, the assets reflected on the August 2000
Balance Sheet or acquired after the date thereof (other than those which have
been disposed of in the ordinary course of business since such date), free and
clear of any liens, other than liens reflected on the August Balance Sheet, and
liens for taxes not yet due and payable. All of the assets owned or leased by
Opitv are in all material respects in good condition and repair, ordinary wear
and tear excepted, and well maintained. Except as set for on Schedule 2.6, there
are no material capital expenditures currently contemplated or necessary to
maintain the current business of Opitv.
2.7 Absence of Undisclosed Liabilities. Except to the extent reflected
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or reserved against in the August 2000 Balance Sheet, Opitv do not have at that
date any liabilities or obligations (secured, unsecured, contingent or
otherwise) of a nature customarily reflected in a corporate balance sheet
prepared in accordance with GAAP.
2.8 Absence of Certain Changes. Since August 30, 2000, (i) there has
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been no material adverse change in the condition (financial or otherwise),
assets, liabilities, results of operations, business or prospects of Opitv, and
(ii) nothing has occurred relative to the business or prospects of Opitv which
would have a material adverse effect on the future business of Opitv.
2.9 Litigation. No investigation or review by and governmental entity or
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regulatory body, foreign or domestic, with respect to Opitv is pending or, to
the Best Knowledge of Opitv, threatened against Opitv, and no governmental
entity or regulatory body has advised Opitv of an intention to conduct the same,
except for those listed on Schedule 2.9. There is no claim, action, suit,
investigation or proceeding pending or, to the Best Knowledge of Opitv,
threatened against affecting Opitv at law or in equity or before any federal or
state, municipal or other governmental entity or regulatory body, or which
challenges the validity of the Agreement or any action taken or to be taken by
Opitv pursuant to this Agreement, except those listed on Schedule 2.9. As of the
date hereof, Opitv are not subject to, nor is there in existence any outstanding
judgment, award, order, writ, injunction or decree of any court, governmental
entity or regulatory body relating to Opitv.
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2.10 Contracts.
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(a) Opitv has provided Flexxtech Holdings with the following
contracts, agreements, leases, licenses, arrangements, commitments, sales
orders, purchase orders or any claim or right or any benefit or obligation
arising thereunder or resulting therefrom and currently in effect, whether oral
or written, to which Opitv is a party ("Contracts"):
(i) any Contract (or group of related Contracts) for the lease
of personal property to or from any person providing for lease payments in
excess of $10,000 per annum;
(ii) any Contract (or group of related Contracts) for the
purchase or sale of raw materials, commodities, supplies, products, or other
personal property, or for the furnishing or receipt of services, the performance
of which will extend over a period of more than one year, result in a loss to
Primavera, or involve consideration in excess of $10,000;
(iii) any Contract concerning a partnership or joint venture;
(iv) any Contract (or group of related Contracts) under which
it has created, incurred, assumed, or guaranteed any indebtedness for borrowed
money, or any capitalized lease obligation or under which it has imposed a lien
on any of its assets, tangible or intangible;
(v) any Contract concerning confidentiality or noncompetition;
(vi) any profit sharing, stock option, stock purchase, stock
appreciation, deferred compensation, severance or other plan or arrangement for
the benefit of its current or former directors, officers, and employees;
(vii) any Contract under which its has advanced or loaned any
amount to any of its directors, officers, and employees outside the ordinary
course of business;
(viii) any Contract under which the consent of the other party
thereto is required in connection with the assignment of such Contract in
connection with the transaction contemplated hereby;
(ix) any Contract under which the consequences of a default or
termination could have a material adverse effect on Opitv; or
(x) any other Contract (or group of related Contracts) the
performance of which involves consideration in excess of $10,000.
(b) All Contracts have been duly authorized and delivered by Opitv
and, any third party thereto, are in full force and effect against Opitv and
constitute the valid and binding obligations of Opitv and, the respective
parties thereto enforceable in accordance with their respective terms. As to the
Contracts, (i) there are no existing breaches or defaults by Opitv thereunder
or, by the other parties to such Contracts; (ii) no event, act or omission has
occurred or, as a result of the consummation of the transactions contemplated
hereby, will occur which (with or without notice, lapse of time or the happening
or occurrence of any other event) would result in a default by Opitv thereunder
or give cause for termination thereof, provided that insofar as the foregoing
representation involves the actions or omissions of parties other than Opitv, it
shall be limited to the Best Knowledge of Opitv; (iii) none of them will result
in any loss to Opitv upon completion or performance thereof; and (iv) none of
the parties to the Contracts have expressed and indication to Opitv of their
intention to cancel, renegotiate, or exercise or not exercise any option under
any such Contract.
2.11 Intellectual Property.
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(a) Opitv owns or has the right to use pursuant to license,
sublicense, agreement, or permission all (i) inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof; (ii) trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof, and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith; (iii) copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith; (iv) mask works and all
applications, registrations, and renewals in connection therewith; (v) trade
secrets and confidential business information (including ideas, research and
development, know-how, formulas, compositions, manufacturing and production
processes and techniques, technical data, designs, drawings, blueprints,
sketches, storyboards, models, engineering drawings, specifications, customer
and supplier lists, pricing and cost information, and business and marketing
plans and proposals); (vi) computer software (including data and related
documentation; (vii) other proprietary rights and know-how; (viii) copies and
tangible embodiments of any of the foregoing (in whatever form or medium); and
(ix) licenses and sublicenses granted and obtained with respect thereto, and
rights thereunder ("Intellectual Property") necessary for the operation of the
businesses of Opitv and as proposed to be conducted,
(b) Except as set forth on Schedule 2.11, Opitv to its knowledge, has
not interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any Intellectual property rights of third parties, and Opitv has
never received and charge, complaint, claim, demand, or notice alleging any such
interference, infringement, misappropriation, or violation (including any claim
that Opitv must license or refrain from using any Intellectual property rights
of any third party). No third party has interfered with, infringed upon,
misappropriated or otherwise come into conflict with any Intellectual Property
rights of Opitv.
(c) With respect to each item of Intellectual Property owned by
Opitv:
(i) Opitv possesses all right, title, and interest in and to
the item, free and clear of any lien, license or other restriction;
(ii) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling or charge;
(iii) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or is threatened which challenges
the legality, validity, enforceability, use or ownership of the item; and
(iv) Opitv has never agreed to indemnify any person for or
against any interference, infringement, misappropriation or other conflict with
respect to the item.
(d) With respect to each item of Intellectual Property used by Opitv
pursuant to any license, sublicense, agreement or permission:
(i) the license, sublicense, agreement or permission covering
the item is legal, valid, binding, enforceable, and in full force and effect,
subject generally to the laws of bankruptcy and reorganization;
(ii) the license, sublicense, agreement or permission will
continue to be legal, valid, binding, enforceable, and in full force and effect
on identical terms following the consummation of the transactions contemplated
hereby;
(iii) no party to the license, sublicense, agreement or
permission is in breach or default, and no event has occurred which, with notice
or lapse of time, would constitute a breach or default, or permit termination,
modification, or acceleration thereunder;
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(iv) no party to the license, sublicense, agreement or
permission has repudiated any provision thereof;
(v) with respect to each sublease, the representations and
warranties set forth in subsections (i) through (iv) above are true and correct
with respect to the underlying license;
(vi) the underlying item of Intellectual Property is not
subject to any outstanding injunction, judgment, order, decree, ruling or
charge;
(vii) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or threatened which challenges
the legality, validity, or enforceability of the underlying item of Intellectual
Property; and
(viii) Opitv has never granted any sublicense or similar right
with respect to the license, sublicense, agreement or permission.
(e) Opitv does not, and will not interfere with, infringe upon,
misappropriate, or otherwise come into conflict with, any Intellectual Property
rights of third parties as a result of the continued operation of its businesses
as presently conducted and as presently proposed to be conducted.
2.12 Software.
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(a) Except with respect to software programs licensed to Opitv, Opitv
are in actual possession of the source code of each software program used in
connection with its business, and Opitv is in possession of all other
documentation reasonably necessary for the effective use of each software
program.
(b) There are no defects in any of the software offered by Opitv in
connection with its business which would in any material and adverse respect
affect the functioning of any such software in accordance with the
specifications therefore published by Opitv or heretofore provided to any
customers or prospective customers of Opitv, and each piece of such software,
together with all know-how and processes used in connection therewith, functions
as intended, conforms to all applicable industry standards, contains all current
revisions of such software and includes all computer programs, materials, tapes,
know-how, object and source codes and procedures used by Opitv in the conduct of
its business.
2.13 Receivables; Payables.
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(a) Except as set forth on Schedule 2.13, all accounts receivable of
Opitv which are or will be reflected on Opitv Financial Statements will arise in
the ordinary course of business out of bona fide sales and deliveries of goods,
services or other business transactions. All accounts receivable of Opitv are
reflected properly on its books and records, are valid receivables subject to no
setoffs or counterclaims of which Opitv is aware, are current and collectible,
and will be collected in accordance with their terms at their recorded amounts.
(b) All accounts payable (including, without limitation, Taxes
payable) reflected on the Opitv Interim Balance Sheet have been and are being
paid in the ordinary course of its business and consistent with past practice.
2.14 Licenses, Permits and Consents; Compliance with Applicable Law.
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(a) Opitv possesses all licenses and permits which individually or in
the aggregate are material to the conduct of the business of Opitv or any of its
employees by reason of such employee's activities on behalf of Opitv under
applicable law or required by any federal, state, local or foreign governmental
entity or regulatory body for the operation of the business of Opitv, and all of
such listed licenses and permits are in full force and effect as of the date
hereof and will remain in full force and effect following the consummation of
the transactions contemplated hereby. Opitv has not received notice and has
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no reason to believe, that any appropriate authority intends to cancel or
terminate any of such licenses or permits or that valid grounds for such
cancellation or termination currently exist.
(b) Opitv are not in material violation or breach of any, and the
business and operations of Opitv comply in all material respects and are being
conducted in accordance with, all material governing laws, regulations and
ordinances applicable thereto, and Opitv are not in material violation of or in
material default under any judgment, award, order, writ, injunction or decree of
any court, arbitration tribunal, governmental entity or regulatory body.
2.15 Insurance. Opitv maintains insurance covering Opitv's properties and
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business adequate and customary for the type and scope of the properties, assets
and business, and similar to companies of comparable size and condition
similarly situated in the same industry in which Opitv operates, but in any
event in amounts sufficient to prevent Opitv from becoming a co-insurer or self-
insurer, with provision for reasonable deductibles and following the Effective
Time, Opitv will use its reasonable best efforts to obtain as promptly as
practicable comparable coverage under policies in Opitv's own name and on
commercially reasonable terms.
2.16 Tax Matters. Opitv have timely filed all required federal, state,
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local, foreign and other governmental Tax returns and reports required to be
filed by it for all taxable periods ending on or before the date hereof. As of
the time of filing, such returns and reports were true, complete and correct,
and were made on a proper basis. All federal, state, local and foreign income,
unincorporated business, gross receipts, franchise, profits, property, capital,
intangibles, employment, excise or other taxes, fees, stamp taxes, duties,
penalties, assessments, governmental charges or other payments (collectively
"Tax" or "Taxes") for all periods up to and including the date hereof have been
duly paid or withheld, or will be on the date hereof, and adequately reserved
for or withheld in accordance with GAAP applied on a consistent basis.
2.17 Books and Records. The corporate minute books, stock certificate
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books, stock registers and other corporate records of Opitv are correct and
complete in all material respects, and the signatures appearing on all documents
contained therein are true signatures of the persons purporting to have signed
the same.
2.18 Entire Business. No portion of the business of Opitv is conducted by
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third parties and all of the assets necessary for the conduct of the business of
Opitv, as presently conducted are owned by Opitv. All such assets are
exclusively owned or leased and used by Opitv, and its customers.
2.19 Employee Benefit Plans. Each employee benefit plan (and each related
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trust, insurance contract, or fund) complies in form and in operation in all
respects with the applicable requirements of ERISA, the Internal Revenue Code
("IRS Code"), and other applicable laws. All required reports and descriptions
have been filed or distributed appropriately with respect to each such employee
benefit plan.
2.20 Suppliers and Customers.
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(a) Opitv have no knowledge or information or reason to believe that
any significant supplier has ceased, or intends to cease, to sell goods or
services to Opitv, or has substantially reduced, or intends to substantially
reduce, the sale of such goods or services either as a result of the transaction
contemplated by the Agreement or otherwise, or intends to sell such goods and
services other than on terms and conditions similar to those imposed on prior
sales to Opitv.
(b) Opitv have no knowledge that any of its significant customers has
ceased, or intends to cease, to purchase goods from Opitv, either as a result of
the transaction contemplated hereby or otherwise.
2.21 Product Warranties, Product Return Policies and Service Warranties.
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Except as set forth on Schedule 2.21, each product or service developed, sold or
provided by Opitv has been in conformity with all applicable contractual
commitments and all express and implied warranties, and Opitv
has no liability for replacement or repair thereof or other damages in
connection therewith. No product or service developed, sold or provided by Opitv
is subject to any guaranty, warranty, or other indemnity beyond the applicable
standard terms and conditions of sale or lease. There are no pending and
suspected claims or demands threatened claims or demands, seeking return,
replacement and,/or repair of products pursuant to warranties extended by Opitv
prior to the date hereof.
2.22 Employees; Labor Matter.
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(a) No officer, employee or consultant of Opitv is, or, to Opitv's
knowledge, is now anticipated to be in violation of any material term of any
employment contract, patent disclosure agreement, proprietary information
agreement, non-competition agreement, non-solicitation agreement,
confidentiality agreement, or any other similar contract or agreement or any
restrictive covenant relating to the right of any such officer, employee, or
consultant to be employed or engaged by Opitv because of the nature of the
business conducted or to be conducted by Opitv or relating to the use of trade
secrets or proprietary information of others or the continued employment or
engagement of Opitv's officers, employees or consultants does not subject Opitv
to any liability with respect to any one of the foregoing matters.
(b) No officer, consultant or key employee of Opitv whose
termination, either individually or in the aggregate, could have a material
adverse effect on Opitv, has terminated since the date hereof or has any present
intention of terminating, his employment or engagement with Opitv, nor has any
such person been, or been proposed to be, terminated by Opitv.
(c) Opitv are not a party to any collective bargaining agreements.
There is no unfair labor practice or employment discrimination or other
employment related complaint, grievance or proceeding against either Opitv or
against any person or entity with respect to any employee of Opitv pending or
threatened before the National Labor Relations Board or any federal, state,
local or foreign governmental entity or regulatory body. There is no basis for
any such complaint, grievance or proceeding.
(d) Opitv is in compliance in all material respects with all
applicable laws respecting employment and employment practices, terms and
conditions of employment and wages and hours. Opitv has fully complied with all
applicable provisions of COBRA and has no obligations with respect to any former
employees qualifying as beneficiaries thereunder. Opitv enjoys satisfactory
relations with its employees and agents.
2.23 Environmental, Health and Safety Matters. Opitv are not in
----------------------------------------
violation of any applicable statute, law or regulation relating to the
environment or occupational safety and health, and to the Best Knowledge of
Opitv, no material expenditures will be required in order to comply with any
such statute, law or regulation.
2.24 Absence of Certain Business Practices. Opitv's directors, officers,
-------------------------------------
employees or agents, nor any other person or entity or entity acting on its or
their behalf has, directly or indirectly, within the past five (5) years, given
or agreed to give any gift or similar benefit to any customer, supplier,
governmental employee or other person or entity or entity that is or may be in a
position to help or hinder the business of Opitv or assist Opitv in connection
with any actual or proposed transaction which (i) might subject Opitv to any
damage or penalty in any civil, criminal or governmental litigation or
proceeding, or (ii) might have had a material adverse effect on Opitv if not
given in the past, or (iii) might materially adversely affect the condition
(financial or otherwise), business, assets, liabilities, operations or prospects
of Opitv, or which might subject Opitv to suit or penalty in any private or
governmental litigation or proceeding if not continued in the future.
2.25 Broker's or Finder's Fees. Except as set forth in Schedule 2.25,
-------------------------
there is no investment banker, broker, finder or other intermediary which has
been retained by, or is authorized to act on behalf of Opitv who might be
entitled to any fee or commission from Opitv upon consummation of the Stock
Purchase Agreement.
2.26 Disclosure. Neither the Offering, this Agreement nor any certificate
----------
delivered in accordance with the terms hereof, or any document or statement in
writing which has been supplied by or on behalf of Opitv, or by any of Opitv's
directors, or officers, in connection with the transactions contemplated hereby,
contains any untrue statement of a material fact, or omits any statement of a
material fact necessary in order to make the statements contained herein or
therein not misleading. There is no fact or circumstance known to Opitv which
materially and adversely affects or which may materially and adversely affect
its business prospects, financial condition, or its assets, which has not been
set forth in this Agreement, or any certificates or statements furnished in
writing.
2.27 Transactions in the Common Stock. Except as contemplated hereby,
--------------------------------
Opitv have not sold, offered to sell, or granted any option to purchase any
contract to sell any of its Common Stock during the twelve (12) month period
preceding the date hereof.
ARTICLE III
COVENANTS OF FLEXXTECH HOLDINGS
Flexxtech Holdings covenants and agrees with Opitv:
3.1 Compliance with Laws. Flexxtech Holdings shall comply with all
--------------------
applicable laws, rules, regulations and orders, the noncompliance with which
could materially adversely affect its business or condition, financial or
otherwise, including applicable environmental laws.
(a) Flexxtech Holdings is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada. Flexxtech
Holdings has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
Flexxtech Holdings is duly qualified to do business and in good standing in each
jurisdiction in which its property or business makes such qualification
necessary. Flexxtech Holdings has heretofore delivered to Flexxtech Holdings
true, accurate and complete copies of Flexxtech Holdings's Articles of
Incorporation and By-Laws as in effect on the date hereof and minutes of al
meetings of shareholders and directors of Flexxtech Holdings held through and
including the date of this Agreement. Flexxtech Holdings is not in violation of
any of the provisions of its Articles of Incorporation nor its By-Laws.
3.2 Authority Relative to this Agreement. Flexxtech Holdings has full
------------------------------------
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transaction contemplated hereby have
been duly and validly authorized by the Board of Directors of Flexxtech Holdings
and, except for approval of the shareholders of Flexxtech Holdings, no other
corporate proceedings on the part of Flexxtech Holdings are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by Flexxtech
Holdings and constitutes a valid and binding agreement, enforceable against it
in accordance with it terms.
3.3 No Conflict; Required Filings and Consents.
------------------------------------------
(a) The execution and delivery of this Agreement by Flexxtech Holdings
does not, and the consummation of the transactions contemplated hereby will not,
(i) to the best knowledge of Flexxtech Holdings after due inquiry ("Best
Knowledge"), conflict with or violate any law, regulation, court order, judgment
or decree applicable to Flexxtech Holdings or by which its properties are bound
or affected; (ii) except as set forth on Schedule 2.3, violate or conflict with
either the Certificate of Incorporation or By-Laws of; or (iii) except as set
forth on Schedule 2.3, result in any breach of or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any right of termination or cancellation of, or result in the
creation of a lien on any of the properties of Flexxtech Holdings pursuant to
any contract to which it is a party or by which Flexxtech Holdings or any of its
respective properties is bound or affected.
(b) Except for compliance with applicable state and federal
securities laws, Flexxtech Holdings is not required to submit any notice, report
or other filing with any governmental entity or regulatory body, domestic or
foreign, in connection with the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby. No
waiver, consent, approval or authorization of any governmental entity or
regulatory body, domestic or foreign, is required to be obtained or made by
Flexxtech Holdings in connection with its execution, delivery or performance of
this Agreement or the consummation of the transactions contemplated hereby.
3.4 Capitalization; Legality of Issuance.
------------------------------------
(a) Flexxtech Holdings has authorized capital stock of 25,000,000
shares of common stock, par value $.001, of which 100 are issued and
outstanding. All the outstanding shares of capital stock of Flexxtech Holdings
have been duly authorized and are validly issued, fully paid and non-assessable.
No options, warrants, conversion rights, subscriptions or purchase rights of any
nature to acquire from Flexxtech Holdings, or commitments of Flexxtech Holdings
to issue shares of capital stock or other securities are authorized, issued or
outstanding, nor is Flexxtech Holdings obligated in any other manner to issue
shares or rights to acquire any of its capital stock or other securities. Except
as set forth in Schedule 2.4, none of Flexxtech Holdings's outstanding
securities or authorized capital stock is subject to any rights of redemption,
repurchase, rights of first refusal, preemptive rights or other similar rights,
whether contractual, statutory or otherwise, for the benefit of Flexxtech
Holdings, any stockholder, or any other person or entity. Except as set forth in
Schedule 2.4, there are no restrictions on the transfer of shares of capital
stock of Flexxtech Holdings other than those imposed by relevant federal and
state securities laws and as otherwise contemplated by this Agreement. There are
no agreements, understandings, trusts or other collaborative arrangements or
understandings concerning the voting or transfer of the capital stock of
Flexxtech Holdings. Subject to the filing of one or more Notices of Transaction
pursuant to Section 25102(f) of the California Corporation Code (the "CCC"), the
offer and sale of all capital stock and other securities of Flexxtech Holdings
issued before the date hereof and to be issued hereafter complied with or were
exempt or will comply with or be exempt from all applicable federal and state
securities laws, and no stockholder has a right of rescission or damages with
respect thereto. Except as set forth on Schedule 2.4, Flexxtech Holdings does
not have outstanding, and has no obligation to grant or issue, and "phantom
stock" or other right measured by the profits, revenues or results of operations
of Flexxtech Holdings or any portion thereof; or any similar rights.
(b) The Shares, when issued, sold and delivered in accordance with the
terms hereof for the per share Purchase Price, will be validly issued, fully
paid and non-assessable and will be issued in compliance with all applicable
federal and state securities laws.
3.5 Litigation. No investigation or review by and governmental entity or
----------
regulatory body, foreign or domestic, with respect to Flexxtech Holdings is
pending or, to the Best Knowledge of Flexxtech Holdings, threatened against
Flexxtech Holdings, and no governmental entity or regulatory body has advised
Flexxtech Holdings of an intention to conduct the same, except for those listed
on Schedule 2.9. There is no claim, action, suit, investigation or proceeding
pending or, to the Best Knowledge of Flexxtech Holdings, threatened against
affecting Flexxtech Holdings at law or in equity or before any federal or state,
municipal or other governmental entity or regulatory body, or which challenges
the validity of the Agreement or any action taken or to be taken by Flexxtech
Holdings pursuant to this Agreement, except those listed on Schedule 2.9. As of
the date hereof, Flexxtech Holdings is not subject to, nor is there in existence
any outstanding judgment, award, order, writ, injunction or decree of any court,
governmental entity or regulatory body relating to Flexxtech Holdings.
3.6 Licenses, Permits and Consents; Compliance with Applicable Law.
--------------------------------------------------------------
(a) Flexxtech Holdings possesses all licenses and permits which
individually or in the aggregate are material to the conduct of the business of
Flexxtech Holdings or any of its employees by reason of such employee's
activities on behalf of Flexxtech Holdings under applicable law or required by
any federal, state, local or foreign governmental entity or regulatory body for
the operation of the business of Flexxtech Holdings, and all of such listed
licenses and permits are in full force and effect as of the date hereof and will
remain in full force and effect following the consummation of the transactions
contemplated hereby. Flexxtech Holdings has not received notice and has no
reason to believe, that any appropriate authority intends to cancel or terminate
any of such licenses or permits or that valid grounds for such cancellation or
termination currently exist.
(b) Flexxtech Holdings is not in material violation or breach of any,
and the business and operations of Flexxtech Holdings comply in all material
respects and are being conducted in accordance with, all material governing
laws, regulations and ordinances applicable thereto, and Flexxtech Holdings is
not in material violation of or in material default under any judgment, award,
order, writ, injunction or decree of any court, arbitration tribunal,
governmental entity or regulatory body.
3.7 Tax Matters. Flexxtech Holdings has timely filed all required
----------
federal, state, local, foreign and other governmental Tax returns and reports
required to be filed by it for all taxable periods ending on or before the date
hereof. As of the time of filing, such returns and reports were true, complete
and correct, and were made on a proper basis. All federal, state, local and
foreign income, unincorporated business, gross receipts, franchise, profits,
property, capital, intangibles, employment, excise or other taxes, fees, stamp
taxes, duties, penalties, assessments, governmental charges or other payments
(collectively "Tax" or "Taxes") for all periods up to and including the date
hereof have been duly paid or withheld, or will be on the date hereof, and
adequately reserved for or withheld in accordance with GAAP applied on a
consistent basis.
3.8 Books and Records. The corporate minute books, stock certificate
-----------------
books, stock registers and other corporate records of Flexxtech Holdings are
correct and complete in all material respects, and the signatures appearing on
all documents contained therein are true signatures of the persons purporting to
have signed the same.
3.9 Entire Business. No portion of the business of Flexxtech Holdings is
---------------
conducted by third parties and all of the assets necessary for the conduct of
the business of Flexxtech Holdings as presently conducted are owned by Flexxtech
Holdings. All such assets are exclusively owned or leased and used by Flexxtech
Holdings.
3.10 Employees; Labor Matter.
-----------------------
(a) To the Best Knowledge of Flexxtech Holdings, no officer, employee
or consultant of Flexxtech Holdings is, or, to Flexxtech Holdings's knowledge,
is now anticipated to be in violation of any material term of any employment
contract, patent disclosure agreement, proprietary information agreement, non-
competition agreement, non-solicitation agreement, confidentiality agreement, or
any other similar contract or agreement or any restrictive covenant relating to
the right of any such officer, employee, or consultant to be employed or engaged
by Flexxtech Holdings because of the nature of the business conducted or to be
conducted by Flexxtech Holdings or relating to the use of trade secrets or
proprietary information of others, and to the Best Knowledge of Flexxtech
Holdings, the continued employment or engagement of Flexxtech Holdings's
officers, employees or consultants does not subject Flexxtech Holdings to any
liability with respect to any one of the foregoing matters.
(b) No officer, consultant or key employee of Flexxtech Holdings
whose termination, either individually or in the aggregate, could have a
material adverse effect on Flexxtech Holdings, has terminated since the date
hereof, or to the Best Knowledge of Flexxtech Holdings has any present intention
of terminating, his employment or engagement with Flexxtech Holdings, nor has
any such person been, or been proposed to be, terminated by Flexxtech Holdings.
(c) Flexxtech Holdings is not a party to any collective bargaining
agreements. There is no unfair labor practice or employment discrimination or
other employment related complaint, grievance or proceeding against either
Flexxtech Holdings or against any person or entity with respect to any employee
of Flexxtech Holdings pending or, to the Best Knowledge of Flexxtech Holdings,
threatened
before the National Labor Relations Board or any federal, state, local or
foreign governmental entity or regulatory body. To the Best Knowledge of
Flexxtech Holdings, there is no basis for any such complaint, grievance or
proceeding.
(d) Flexxtech Holdings is in compliance in all material respects with
all applicable laws respecting employment and employment practices, terms and
conditions of employment and wages and hours. Flexxtech Holdings has fully
complied with all applicable provisions of COBRA and has no obligations with
respect to any former employees qualifying as beneficiaries thereunder.
Flexxtech Holdings enjoys satisfactory relations with its employees and agents.
3.11 Environmental, Health and Safety Matters. Flexxtech Holdings is
----------------------------------------
not in violation of any applicable statute, law or regulation relating to the
environment or occupational safety and health, and to the Best Knowledge of
Flexxtech Holdings, no material expenditures will be required in order to comply
with any such statute, law or regulation.
3.12 Absence of Certain Business Practices. To the Best Knowledge of
-------------------------------------
Flexxtech Holdings, Flexxtech Holdings's directors, officers, employees or
agents, nor any other person or entity or entity acting on its or their behalf
has, directly or indirectly, within the past five (5) years, given or agreed to
give any gift or similar benefit to any customer, supplier, governmental
employee or other person or entity or entity that is or may be in a position to
help or hinder the business of Flexxtech Holdings or assist Flexxtech Holdings
in connection with any actual or proposed transaction which (i) might subject
Flexxtech Holdings to any damage or penalty in any civil, criminal or
governmental litigation or proceeding, or (ii) might have had a material adverse
effect on Flexxtech Holdings if not given in the past, or (iii) might materially
adversely affect the condition (financial or otherwise), business, assets,
liabilities, operations or prospects of Flexxtech Holdings, or which might
subject Flexxtech Holdings to suit or penalty in any private or governmental
litigation or proceeding if not continued in the future.
3.13 Broker's or Finder's Fees. Except as set forth in Schedule 2.25,
-------------------------
there is no investment banker, broker, finder or other intermediary which has
been retained by, or is authorized to act on behalf of Flexxtech Holdings who
might be entitled to any fee or commission from Flexxtech Holdings upon
consummation of the Combination Transaction.
3.14 Disclosure. Neither the Offering, this Agreement nor any certificate
----------
delivered in accordance with the terms hereof, or any document or statement in
writing which has been supplied by or on behalf of Flexxtech Holdings, or by any
of Flexxtech Holdings's directors, or officers, in connection with the
transactions contemplated hereby, contains any untrue statement of a material
fact, or omits any statement of a material fact necessary in order to make the
statements contained herein or therein not misleading. To the Best Knowledge of
Flexxtech Holdings, there is no fact or circumstance known to Flexxtech Holdings
which materially and adversely affects or which may materially and adversely
affect its business prospects, financial condition, or its assets, which has not
been set forth in this Agreement, or any certificates or statements furnished
in writing.
ARTICLE IV
MISCELLANEOUS
4.1 Fees and Expenses. Each party shall pay the fees and expenses of
-----------------
its advisers, counsel, accountants and other experts, if any, and all other
expense incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement.
4.2 Survival of Agreements. All covenants, agreements, representations
----------------------
and warranties made herein, and the indemnification provisions herein, shall
survive the execution and delivery of this Agreement, and all statements
contained in any certificate or other instrument delivered by Opitv hereunder or
thereunder or in connection herewith or therewith shall be deemed to constitute
representations and warranties made by Opitv.
4.3 Parties in Interest. All representations, warranties, covenants and
-------------------
agreements contained in this Agreement shall be binding and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not.
4.4 Notices. All notices, requests, consents and other communications
-------
hereunder shall be in writing and shall be delivered in person or entity, by
overnight express mail or mailed by certified or registered mail, return receipt
requested, addressed as follows:
(a) If to Flexxtech Holdings:
Flexxtech Holdings
5777 W. Century Blvd., Suite 775-A
Los Angeles, CA 90045
Attn: Greg Mardock
(b) If to Opitv.com:
Opitv.com
Attn: Howard Frantom
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
4.5 Governing Law; Jurisdiction. This Agreement shall be governed by and
---------------------------
construed in accordance with the internal laws of the State of Nevada, without
giving effect to its conflicts of laws provisions. Venue for any legal action
arising out of this Agreement shall be Los Angeles County, California.
4.6 Entire Agreement. This Agreement, including the Exhibits hereto,
----------------
constitutes the sole and entire agreement of the parties and supersedes all
prior agreements and understandings, oral and written, among the parties hereto
with respect to the subject matter hereof.
4.7 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.8 Amendments. This Agreement may not be amended or modified, and no
----------
provisions hereof may be waived, without the written consent of Flexxtech
Holdings and Opitv.
4.9 Severability. If any provision of this Agreement shall be declared
------------
void or unenforceable by any judicial or administrative authority, the validity
of any other provision of this Agreement shall not be affected thereby.
4.10 Headings and Subheadings. The headings and subheadings used in this
------------------------
Agreement are for convenience only and are not to be considered in construing or
interpreting any term or provision of this Agreement.
4.11 Effectiveness; Binding Effect; Assignment. This Agreement shall be
-----------------------------------------
binding upon and inure to the benefit of Flexxtech Holdings and Opitv, and their
respective successors and assigns.
4.12 Further Assurances. From and after the date of this Agreement, upon
------------------
the request of Flexxtech Holdings or Opitv, Flexxtech Holdings and Opitv shall
execute and deliver such instruments, documents and other writings as may be
reasonably necessary or desirable to confirm, carry out and to
effectuate fully the intent and purposes of this Agreement.
IN WITNESS WHEREOF, Flexxtech Holdings, Inc., Opitv.com have executed this
Agreement as of this day and year first written above.
FLEXXTECH HOLDINGS, INC.
______________________________
By: Greg Mardock
President and Director
OPITV.COM
_______________________________
By: Howard Frantom
Chairman, Director, Shareholder
_______________________________
By: John Alkire
CTO, Director, Shareholder