Exhibit 4.2
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
ASSET PURCHASE AGREEMENT
AGREEMENT made this 26th day of August, 1998, by and between Southern Cargo
Company, Inc. a Florida corporation, (the "ISSUER") and AccuFacts,
Pre-Employment Screening, Inc. ("APS")
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. PURCHASE OF ASSETS AND ISSUANCE OF STOCK. Subject to the terms and
conditions of this Agreement, the ISSUER agrees to issue to APS or its assigns,
8,800,000 shares of the common stock of ISSUER, $0.01 par value (the "Shares"),
in exchange for 100% of the assets and liablitities of APS.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to APS
the following:
i. Organization. ISSUER is a corporation duly organized, validly
existing, and in good standing under the laws of Florida, and has all
necessary corporate powers to own properties and carry on a business, and
is duly qualified to do business and is in good standing in Florida. All
actions taken by the Incorporators, directors and shareholders of ISSUER
have been valid and in accordance with the laws of the State of Florida.
ii. Capital. The authorized capital stock of ISSUER consists of
50,000,000 shares of common stock, $0.001 par value, of which 1,000,000 are
issued and outstanding. All outstanding shares are fully paid and non
assessable, free of liens, encumbrances, options, restrictions and legal or
equitable rights of others not a party to this Agreement. At closing, there
will be no outstanding subscriptions, options, rights, warrants,
convertible securities, or other agreements or commitments obligating
ISSUER to issue or to transfer from treasury any additional shares of its
capital stock. None of the outstanding shares of ISSUER are subject to any
stock restriction
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agreements. All of the shareholders of ISSUER have valid title to such
shares and acquired their shares in a lawful transaction and in accordance
with the laws of Florida.
iii. Financial Statements. Exhibit B to this Agreement includes the
balance sheet of ISSUER as of June 10, 1998, and the related statements of
income and retained earnings for the period then ended. The financial
statements have been prepared in accordance with generally accepted
accounting principles consistently followed by ISSUER throughout the
periods indicated, and fairly present the financial position of ISSUER as
of the date of the balance sheet in the financial statements, and the
results of its operations for the periods indicated.
iv. Absence of Changes. Since the date of the financial statements,
there has not been any change in the financial condition or operations of
ISSUER, except changes in the ordinary course of business, which changes
have not in the aggregate been materially adverse.
v. Liabilities. ISSUER does not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or
otherwise, and whether due or to become due, that is not reflected on the
ISSUERS' financial statement. ISSUER is not aware of any pending,
threatened or asserted claims, lawsuits or contingencies involving ISSUER
or its common stock. There is no dispute of any kind between ISSUER and any
third party, and no such dispute will exist at the closing of this
Agreement. At closing, ISSUER will be free from any and all liabilities,
liens, claims and/or commitments.
vi. Ability to Carry Out Obligations. ISSUER has the right, power, and
authority to enter into and perform its obligations under this Agreement.
The execution and delivery of this Agreement by ISSUER and the performance
by ISSUER of its obligations hereunder will not cause, constitute, or
conflict with or result in (a) any breach or violation or any of the
provisions of or constitute a default under any license, indenture,
mortgage, charter, instrument, articles of incorporation, bylaw, or other
agreement or instrument to which ISSUER or its shareholders are a party, or
by which they may be bound, nor will any consents or authorizations of any
party other than those hereto be required, (b) an event that would cause
ISSUER to be liable to any party, or (c) an event that would result in the
creation or imposition or any lien, charge or encumbrance on any asset of
ISSUER or upon the securities of ISSUER to be acquired by SHAREHOLDERS.
vii. Full Disclosure. None of representations and warranties made by
the ISSUER, or in any certificate or memorandum furnished or to be
furnished by the ISSUER, contains or will contain any untrue statement of a
material fact, or omit any material fact the omission of which would be
misleading.
viii. Contract and Leases. ISSUER is not currently carrying on any
business and is not a party to any contract, agreement or lease. No person
holds a power of attorney from ISSUER.
ix. Compliance with Laws. ISSUER has complied with, and is not in
violation of any federal, state, or local statute, law, and/or regulation
pertaining to ISSUER. ISSUER
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has complied with all federal and state securities laws in connection with
the issuance, sale and distribution of its securities.
x. Litigation. ISSUER is not (and has not been) a party to any suit,
action, arbitration, or legal, administrative, or other proceeding, or
pending governmental investigation. To the best knowledge of the ISSUER,
there is no basis for any such action or proceeding and no such action or
proceeding is threatened against ISSUER and ISSUER is not subject to or in
default with respect to any order, writ, injunction, or decree of any
federal, state, local, or foreign court, department, agency, or
instrumentality.
xi. Conduct of Business. Prior to the closing, ISSUER shall conduct
its business in the normal course, and shall not (1) sell, pledge, or
assign any assets (2) amend its Articles of Incorporation or Bylaws, (3)
declare dividends, redeem or sell stock or other securities, (4) incur any
liabilities, (5) acquire or dispose of any assets, entefc
xii. Title. The Shares to be issued to APS will be, at closing, free
and clear of all liens, security interests, pledges, charges, claims,
encumbrances and restrictions of any kind. None of such Shares are or will
be subject to any voting trust or agreement. No person holds or has the
right to receive any proxy or similar instrument with respect to such
shares, except as provided in this Agreement, the ISSUER is not a party to
any agreement which offers or grants to any person the right to purchase or
acquire any of the securities to be issued to APS. There is no applicable
local, state or federal law, rule, regulation, or decree which would, as a
result of the issuance of the Shares to APS, impair, restrict or delay APS
voting rights with respect to the Shares.
3. APS represents and warrant to ISSUER the following:
i. Organization. APS is a corporation duly organized, validly
existing, and in good standing under the laws of New York, has all
necessary corporate powers to own properties and carry on a business, and
is duly qualified to do business and is in good standing in New York. All
actions taken by the Incorporators, directors and shareholders of APS have
been valid and in accordance with the laws of New York.
ii. Counsel. APS and its shareholders represents and warrants that
prior to Closing, that it represented by independent counsel or have had
the opportunity to retain independent counsel to represent them in this
transaction and that prior to Closing, the law offices of Xxxx X. Xxxxxxx,
P.A. has acted as exclusive counsel to the ISSUER and has not represented
either APS or its shareholders in any manner whatsoever.
4. INVESTMENT INTENT. APS agrees that the Shares being issued pursuant
to this Agreement may be sold, pledged, assigned, hypothecate or otherwise
transferred, with or without consideration ( a "Transfer"), only pursuant
to an effective registration statement under the Act, or pursuant to an
exemption from registration under the Act, the availability of which is to
be established to the satisfaction of ISSUER.
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5. CLOSING. The closing of this transaction shall take place at the law
offices of Xxxx X. Xxxxxxx, 0000 X.X. 000xx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx
00000. Unless the closing of this transaction takes place on or before August
28, 1998, then either party may terminate this Agreement.
6. DOCUMENTS TO BE DELIVERED AT CLOSING.
i.. By the ISSUER
(1) Board of Directos Minutes authorizing the issuance of a
certificate or certificates for 8,800,000 shares registered in the
names of the APS or to such persons and entities as directed by APS..
(2) The resignation of all officers of ISSUER.
(3) A Board of Directors resolution appointing such person as APS
designate as a director(s) of ISSUER.
(4) The resignation of all the directors of ISSUER, except that
of APS designee, dated subsequent to the resolution described in 3,
above.
ii.. By APS:
(1) Xxxx of Sale Delivery transferring all the assets and
liabilities of APS to the ISSUER.
7. REMEDIES.
i. Arbitration. Any controversy or claim arising out of, or relating
to, this Agreement, or the making, performance, or interpretation thereof,
shall be settled by arbitration in Miami, Dade County, Florida in
accordance with the Rules of the American Arbitration Association then
existing, and judgment on the arbitration award may be entered in any court
having jurisdiction over the subject matter of the controversy.
8. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall
in no way be deemed to define, limit, or add to the meaning of any
provision of this Agreement.
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ii. No oral Change. This Agreement and any provision hereof, may not
be waived, changed, modified, or discharged orally, but only by an
agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
iii. Non Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the
party against whom such waiver is charged; and (I) the failure of any party
to insist in any one or more cases upon the performance of any of the
provisions, covenants, or conditions of this Agreement or to exercise any
option herein contained shall not be construed as a waiver or
relinquishment for the future of any such provisions, covenants, or
conditions, (ii) the acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breach or failure of a
covenant, condition, or provision hereof shall not be deemed a waiver of
such breach or failure, and (iii) no waiver by any party of one breach by
another party shall be construed as a waiver with respect to any other or
subsequent breach.
iv. Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
v. Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings.
vi. Counterparts. This Agreement may be executed simultaneously 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.
vii. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been
duly given on the date of service if served personally on the party to whom
notice is to be given, or on the third day after mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, and by fax, as follows:
ISSUER: Xxxx X. Xxxxxxx, Esquire
0000 X.X. x00xx Xxxxxx
Xxxxx 000 Xxxxx
Xxxxx, Xxxxxxx 00000
APS: Xxxx Xxxxxxx, Senior Administrator
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 26th
day of August, 1998.
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Southern Cargo Company, Inc. AccuFacts Pre-Employment
Screening, Inc.
By: /s/ XXXX X. XXXXXXX By: /s/ XXXX XXXXXXX
--------------------------- ---------------------------
Xxxx X. Xxxxxxx, President Xxxx Xxxxxxx
State of New York
County of New York /s/ Xxxx X. Xxxxxx
On August 31, 1998 before me XXXX X. XXXXXX
came Xxxx Xxxxxxx who attested to Notary Public, State of NY
and executed the foregoing No. 02BE5038504
agreement. Qualified in NY County
Commission Expires 1/30/99
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