EXHIBIT 10.51
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SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (the "Agreement") is effective as of June 27,
2001, is by and among ZiaSun Technologies, Inc., a Nevada corporation,
hereinafter referred to as "ZiaSun", and Xxxxxxx X. Xxx and Xxxxxx X. Xxx,
hereinafter collectively referred to as "Purchasers," and Asia Prepress
Technology, Inc., a Maryland corporation, hereinafter referred to as "APT." This
Agreement shall become effective only when executed by all parties hereto.
RECITALS
A. Whereas, ZiaSun is the owner and holder of 100 shares of common stock,
no par value of APT which constitutes all the issued and outstanding shares of
APT (the "APT Shares").
B. Whereas, ZiaSun acquired APT, on May 22, 2000, pursuant to the terms of
a Merger Agreement and Plan of Reorganization, wherein ZiaSun acquired all of
the issued and outstanding shares of APT in consideration of $100,000 cash and
100,000 restricted shares of common stock of ZiaSun, whereupon APT became a
wholly-owned subsidiary of ZiaSun.
C. Whereas, in addition and as part of the acquisition of APT, ZiaSun paid,
on behalf of APT, the then outstanding principal and accrued balance of the
working line of credit note of APT with First Union National Bank in the amount
of $160,324, and on October 4, 2000 executed an Unconditional Guaranty wherein
ZiaSun guaranteed the payment of a new working line of credit note for APT in
the principal amount of $250,000
D. Whereas, ZiaSun desires to sell to Purchasers and Purchasers desire to
purchase from ZiaSun all APT Shares owned by ZiaSun, in consideration for One
Hundred Thousand (100,000) restricted shares of common stock of ZiaSun owned by
Purchasers.
E. Whereas, additional consideration for the sale of APT to Purchasers
shall consist of $50,000 in cash as evidenced by an Unsecured Promissory Note
with interest thereon at the rate of Five percent (5.0%), signed by Xxxxxxx X.
Xxx, in favor of ZiaSun, payable in two equal installment of principal and
accrued interest, on or before June 15, 2003 and June 15, 2004.
F. Whereas, in addition, and as a condition to the Closing of the sale of
APT Shares to Purchasers, Purchasers and APT, shall, prior to the Closing,
either pay off in their entirety or obtain full release and waiver of any and
all obligations of ZiaSun to First Union National Bank, pursuant to that certain
Unconditional Guaranty and any other ancillary documents executed by ZiaSun for
the benefit of APT.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
warranties, representations, agreements and undertakings hereinafter set forth,
the parties do hereby agree as follows:
ARTICLE 1.
CERTAIN DEFINITIONS.
1.1 For the purpose of this Agreement, the terms defined in this Article
1., shall have the meanings set forth below. All capitalized terms not defined
in this Article 1., shall have the meanings ascribed to them in other parts of
this Agreement.
1.2 "ZiaSun" shall mean ZiaSun Technologies, Inc., a Nevada corporation.
1.3 "APT" shall mean Asia Prepress Technology, Inc., a Maryland
corporation.
1.4 "Purchasers" shall mean Xxxxxxx X. Xxx and Xxxxxx X. Xxx.
1.5 "Closing" shall mean the consummation of the transactions contemplated
hereby on the Closing Date.
1.6 "Closing Date" shall mean that date on or before June 22, 2001, or such
other date as to which the parties may agree.
1.7 "Common Stock" shall mean the Common stock, no par value, of ZiaSun.
1.8 "APT Shares" shall mean 100 shares of common stock, no par value of APT
to be sold to and acquired by Purchasers from the ZiaSun hereunder.
1.9 "Purchase Price" shall mean one hundred thousand (100,000) restricted
shares of common stock of ZiaSun and $50,000 in cash evidenced by the Unsecured
Promissory Note signed by Xxxxxxx Xxx and made payable in accordance with the
terms as set forth herein.
ARTICLE 2.
PURCHASE AND SALE.
2.1 ZiaSun agrees to sell to Purchasers, and Purchasers agree to buy from
ZiaSun, all APT Shares owned by ZiaSun, for the purchase price and upon the
terms, provisions and conditions hereinafter set forth.
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ARTICLE 3.
PURCHASE PRICE AND CONSIDERATION.
3.1 Purchase Price and Consideration. The purchase price and consideration
for the APT Shares shall be one hundred thousand (100,000) restricted shares of
Common Stock of ZiaSun, free of any liens, pledges or encumbrances of any kind
and $50,000 in cash as evidenced by an Unsecured Promissory Note with interest
thereon at the rate of Five percent (5.0%), signed by Xxxxxxx X. Xxx, in favor
of ZiaSun, payable in two equal installment of principal and accrued interest,
on or before June 15, 2003 and June 15, 2004.
3.2 Additional Consideration. In addition to the Purchase Price to be paid
by Purchasers as set forth in Section 3.1 above, and as a condition to Closing,
APT, shall, prior to Closing:
3.2.1 Either payoff in its entirety or obtain a written release and
waiver of ZiaSun, by First Union National Bank, of any and all obligations
of ZiaSun pursuant to that certain Unconditional Guaranty dated October 4,
2000, and any other ancillary or other documents executed by ZiaSun for the
benefit of APT. And, with the exception of that certain Promissory Note
executed in accordance with this Agreement and that certain Promissory Note
executed pursuant to the terms of the Share Purchase Agreement pertaining
to Asia Internet Xxxxxxxx.xxx, Inc., executed concurrently herewith, all
indebtedness due to ZiaSun by APT shall be satisfied and considered paid in
full.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES BY ZIASUN.
4.1 As a material inducement to Purchasers to enter into this Agreement,
ZiaSun represents and warrants to Purchasers that as of the date hereof:
4.1.1 Organization and Good Standing. APT is duly organized and
existing in good standing under the laws of the State of Maryland. To the
best of ZiaSun's knowledge, other than the Republic of the Philippines in
which APT is qualified to engaged in business, APT is not presently
engaging in business in any other jurisdiction and is not qualified as a
foreign corporation nor authorized to do business in other jurisdictions.
APT has the corporate power to own its properties and to carry on its
business as now conducted and as they are proposed to be conducted;
4.1.2 Authorization. The execution, delivery and performance by ZiaSun
of this Agreement and the execution, delivery and performance by ZiaSun
and/or APT of each related agreement to which ZiaSun and/or APT is a party
(a) are within ZiaSun's or APT's power and authority, (b) have been duly
authorized by all necessary corporate proceedings, as applicable, and (c)
do not conflict with or result in any breach of any provision or of the
creation of any lien or encumbrance upon any of the property of APT or
require any consent or approval pursuant to the Articles of Incorporation
or bylaws of APT or any law, regulation, order, judgment, writ, injunction,
license, permit, agreement or instrument applicable to ZiaSun or APT;
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4.1.3 Enforceability. The execution and delivery of this Agreement and
of each related agreement to which Purchaser is a party, will result in
legally binding obligations of ZiaSun, enforceable by ZiaSun in accordance
with the respective terms and provisions hereof and thereof, except to the
extent that (a) such enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally
the enforcement of creditor's rights, and (b) the availability of the
remedy of specific performance or injunctive or other equitable relief will
be subject to the discretion of the court before which any proceeding
therefor may be brought;
4.1.4 Governmental Approvals. Except as set forth in Exhibit 4.1.4
hereto, the execution, delivery and performance of this Agreement and each
related agreement to which ZiaSun is a party, do not require the approval
or consent of, or any filing with, any governmental authority or agency.
4.2 Capitalization.
4.2.1 Capital Stock. The authorized capital stock of APT consists
solely of 1,000 shares of common stock, no par value, of which one hundred
(100) shares are issued and outstanding, fully paid and non-assessable.
4.2.2 Options, Etc. There are no outstanding rights (either preemptive
or other) or options to subscribe for or purchase any shares of APT, or any
securities convertible into exchangeable for its capital stock.
4.3 Reports and Financial Statements. Purchaser, Xxxxxxx X. Xxx is the
current President and CEO of APT and as such is familiar with the financial
statements of APT, including without limitation, its balance sheet, statements
of operations and cash flows, and Purchasers hereby waive any requirement of
ZiaSun to provide financial statements of APT and does hereby accept APT in its
current financial condition.
4.4 Title to Assets; Leases. To the best of ZiaSun's knowledge, except as
disclosed herein or set forth on Exhibit 4.4, attached hereto, APT owns all of
its assets shown on its financial Statements free and clear of all liens and
encumbrances and enjoys peaceful and undisturbed possession of all leased real
property on which the facilities are currently situated, and all such leases are
valid and in full force and effect.
4.5 Related Agreements. To the best of ZiaSun's knowledge, Purchasers have
heretofore or simultaneously herewith been furnished with complete and correct
copies of all the related agreements and all other agreements, instruments and
documents entered into in connection therewith. This Agreement and the related
agreements are the only material agreements relating to the stock purchase and
the transactions contemplated hereby to which APT is a party. APT is not in
default on any of its obligations under this Agreement or any related agreement.
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4.6 Litigation. To the best of ZiaSun's knowledge, except as set forth and
described on Exhibit 4.6, there is no pending or threatened litigation or other
proceeding before any court, board or other governmental or administrative
agency or arbitrator, to which APT is or would be a party. No such pending or
threatened litigation or other proceeding, individually or in the aggregate, is
reasonably likely to result in any final judgment or liability which, after
giving effect to any applicable insurance, could result in a material adverse
change in the business, assets, financial condition or prospects of APT No
judgment, decree or order of any court, board or other governmental or
administrative agency or arbitrator has been issued against or binds APT or its
assets.
4.7 Tax Returns. To the best of ZiaSun's knowledge, except as set forth on
Exhibit 4.7, hereto, APT has filed all tax returns and reports which are
required to be filed with any foreign, federal, state or local governmental
authority or agency and has paid, or made adequate provision for the payment of,
all assessments received and all taxes which have or may become due under
applicable foreign, federal, state or local governmental law or regulations with
respect to the periods in respect of which such returns and reports were filed.
Except as set forth on Exhibit 4.7, hereto, APT knows of no additional
assessments since the date of such returns and reports, and there will be no
additional assessments with respect to the periods for which such returns and
reports were filed for which adequate reserves have not been established.
4.8. Liabilities, Indebtedness and Liens. To the best of ZiaSun's
knowledge, based on representations of APT and its officers and directors,
Exhibit 4.8, hereto sets forth all material liabilities, indebtedness and liens
of APT.
4.9 Governmental Regulations. APT is not a "holding company", or a
"subsidiary company" of a "holding company" or an "affiliate" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935; APT is not a "registered investment company", or an "affiliated person" or
a principal underwriter of a "registered investment Company", as such terms are
defined in the Investment Company Act of 1940, as amended.
4.10 Disclosure. To the best of ZiaSun's knowledge, no representation,
warranty or statement made by ZiaSun in this Agreement, any related agreement or
any agreement, certificate, statement or document furnished by or on behalf of
ZiaSun in connection herewith or therewith contains any untrue statement of
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein, in light of the circumstances in which
they were made, not misleading.
4.11 "AS-IS" Sale. ZiaSun has not pledged, hypothecated the Shares of APT
and, other than the Unconditional Guaranty executed by ZiaSun in favor for First
Union National Bank, ZiaSun has not entered into any contract or agreement on
behalf of APT. As Purchaser, Xxxxxxx X. Xxx, is the President of APT, and has
been, and is currently in charge if the operations, assets and liabilities of
APT, ZiaSun makes no representation or warranty, either expressed or implied,
with respect to the business, assets, liabilities and obligations of APT, and
Purchasers accept APT in its present condition and status of operations, subject
to any and all claims, liabilities and obligations, if any, that may result
thereto.
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ARTICLE 5.
REPRESENTATIONS AND WARRANTIES BY PURCHASERS
5.1 As a material inducement to ZiaSun to enter into this Agreement,
Purchasers represent and warrant to ZiaSun that as of the date hereof:
5.1.1 Authorization. The execution, delivery and performance by the
Purchasers of this Agreement and each related agreement to which it is a
party, (a) are within the Purchasers' power and authority, (b) have been
duly authorized by all necessary proceedings, and (c) do not conflict with
or result in any breach of any provision or of the creation of any lien
upon any of the property of the Purchasers or require any consent or
approval that has not been obtained or will not be obtained before Closing,
and do not violate any law, regulation, order, judgment, writ, injunction,
license, permit, agreement or instrument.
5.1.2 Enforceability. The execution and delivery of this Agreement by
the Purchasers and each related agreement to which Purchasers are parties,
will result in legally binding obligations of the Purchasers enforceable
against Purchasers in accordance with the respective terms and provisions
hereof and thereof, except to the extent that (a) such enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditor's rights,
(b) the availability of the remedy of specific performance or injunctive or
other equitable relief will be subject to the discretion of the court
before which any proceeding therefore may be brought.
5.1.3 Governmental Approvals. To the best of Purchasers' knowledge,
except as set forth on Exhibit 5.1.3, hereof, the execution, delivery and
performance by the Purchasers of this Agreement do not require the approval
or consent of, or any filing with, any governmental authority or agency.
5.1.4 Business. Prior to and at the Closing Date, the Purchasers will
not have conducted any business or incurred any liabilities that shall have
a material adverse impact on Purchasers' ability to fulfill its obligations
hereunder.
5.1.5 Solvency. To the best of Purchasers' knowledge, prior to, upon
and immediately after the consummation of the transactions contemplated
hereby and by the related agreements, Purchasers are solvent, have tangible
and intangible assets having a fair value in excess of the amount required
to pay Purchasers' probable liabilities on Purchasers' existing debts as
they become absolute and matured and have access to adequate capital for
the conduct of their business and the ability to pay Purchasers' debts from
time to time incurred in connection therewith as such debts mature.
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5.1.6 Title to Assets; Leases. To the best of Purchasers' knowledge,
Purchasers enjoys peaceful and undisturbed possession to all of the
Purchasers' assets.
5.1.7 Defaults. To the best of Purchasers' knowledge, the Purchasers
are not in default under any provision any franchise, contract, agreement,
lease or other instrument to which Purchasers are a party or by which
Purchasers or Purchasers' property is bound or in violation of any law,
judgment, decree or governmental order, rule or regulation.
5.1.8 Representations and Warranties. To the best of Purchasers'
knowledge, all representations and warranties made by the Purchasers in any
of the related agreements are true and correct as of the date hereof with
the same force and effect as though made on and as of the date hereof, and
such representations and warranties are hereby confirmed to you and made
representations and warranties of the Purchasers hereunder as fully as if
set forth herein.
5.1.9 Related Agreements. To the best of Purchasers' knowledge, this
Agreement and the related agreements are the only material agreements
relating to the stock purchase and the transactions contemplated hereby to
which the Purchasers are a party. The Purchasers are not in default on any
of its obligations under this Agreement or any related agreements.
5.1.10 Litigation. To the best of Purchasers' knowledge, there is no
pending or threatened litigation or other proceeding before any court,
board or other governmental or administrative agency or arbitrator, to
which Purchasers are parties, which are reasonably likely to result in any
final judgment or liability which could result in a material adverse change
in the business, assets, financial condition or prospects of the
Purchasers.
5.1.11 Tax Returns. To the best of Purchasers' knowledge, Purchasers
have filed all tax returns and reports which are required to be filed with
any foreign, federal, state or local governmental authority or agency and
have paid, or made adequate provision for the payment of, all assessments
received and all taxes which have or may become due under applicable
foreign, federal, state or local governmental law or regulations with
respect to the periods in respect of which such returns and reports were
filed. To the best of Purchasers' knowledge, the Purchasers know of no
additional assessments since the date of such returns and reports, and
there will be no additional assessments with respect to the periods for
which such returns and reports were filed for which Purchasers did not have
adequate reserves and Purchasers have made adequate provision for all
current taxes.
5.1.12 Disclosure. To the best of Purchasers' knowledge, no
representation, warranty or statement made by Purchasers in this Agreement,
any related agreement or any agreement, certificate, statement or document
furnished by or on behalf of Purchasers in connection herewith contains any
untrue statement of material fact or omits to state a material fact
necessary in order to make the statements contained herein or therein, in
light of the circumstances in which they were made, not misleading.
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5.1.13 Access to Financial Reports. ZiaSun shall have full and
complete access to any and all financial information and records, of APT up
to the day of Closing, and as otherwise required by ZiaSun, in order for
ZiaSun and its independent auditors to prepare any requisite consolidated
financial statements during and for the fiscal year ending December 31,
2001.
5.1.14 Acceptance of APT Liabilities. Purchasers acknowledges that
Purchasers are aware of the financial condition and liabilities of APT.
Purchasers hereby accept full responsibility for any and all liabilities,
liens and debts of APT.
ARTICLE 6.
CLOSING.
6.1 The closing of this transaction shall be held at the offices of ZiaSun
Technologies, Inc., located at 000 Xxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxxx,
Xxxxxxxxxx 00000, on or before June 22, 2001, or at such other place and time as
is mutually agreeable to the parties, or by FAX and Federal Express.
6.2 ZiaSun's Deliveries at Closing. On the Closing date or such time period
as set forth below, ZiaSun shall deliver the following items:
6.2.1 To Xxxxxxx X. Xxx, one or more certificate(s) representing 100
shares of capital stock of APT, issued in the name of Xxxxxxx X. Xxx;
6.2.2 To Purchasers, a resolution of the Board of Directors of ZiaSun
authorizing the transactions contemplated hereby; and
6.2.3 any and all other instruments not herein specifically provided
for but which are reasonably necessary or desirable to effectuate the
closing hereunder.
6.3 APT Deliveries. On or prior to the Closing Date as set forth below, APT
shall deliver, or cause to be delivered, to ZiaSun, the following:
6.3.1 A release and waiver of ZiaSun from First Union National Bank,
of any and all obligations of ZiaSun under that certain Unconditional
Guaranty dated October 4, 2000, and such other agreements related to such
Guaranty or Line of Credit with First Union National Bank, executed by
ZiaSun for the benefit of APT;
6.3.2 A duly executed Resolution of the Board of Directors of APT
authorizing the transactions contemplated hereby; and
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6.3.3 any and all other instruments not herein specifically provided
for but which are reasonably necessary or desirable to effectuate the
closing hereunder.
6.4 Purchasers' Deliveries. On the Closing Date within such time period as
set forth below, Purchasers shall deliver, or cause to be delivered, to ZiaSun,
the following:
6.4.1 To ZiaSun, one or more certificate(s) representing 100,000
restricted shares of common stock of ZiaSun, issued in the name of Ziasun
Technologies, Inc.;
6.4.2 Documentation evidencing either the pay off in its entirety or
the release and waiver of ZiaSun from First Union National Bank, of any and
all obligations of ZiaSun under that certain Unconditional Guaranty dated
October 4, 2000, and any other ancillary agreements executed by ZiaSun for
the benefit of APT;
6.4.3 An Unsecured Promissory Note in the principal amount of $50,000,
with interest thereon at the rate of Five percent (5.0%), signed by Xxxxxxx
X. Xxx, in favor of ZiaSun, in the form as set forth in Exhibit 3.1,
attached hereto; and
6.4.4 any and all other instruments not herein specifically provided
for but which are reasonably necessary or desirable to effectuate the
closing hereunder.
ARTICLE 7.
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASERS
7.1 The obligations of Purchasers hereunder are subject to the following
conditions, any of which may be waived in writing by Purchasers:
7.1.1 Representation and Warranties True at Closing. The
representations and warranties of the ZiaSun contained in this Agreement
shall have been true and correct when made and shall be true and correct on
the Closing Date with the same effect as if made on such date, except to
the extent that such representations and warranties are rendered inaccurate
by reason of transactions contemplated hereby.
7.1.2 Performance of Agreements and Conditions. ZiaSun shall have
performed and complied with all agreements and conditions required by this
Agreement to be performed and complied with by ZiaSun prior to or at the
Closing Date.
7.1.3 Deliveries. ZiaSun shall have delivered to Purchasers all
consideration, certificates and documents to be delivered pursuant to
Article 6., above.
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7.1.4 No Injunction. On the Closing Date there shall not be in effect
any injunction, writ, preliminary restraining order of any nature issued by
a court or other governmental body or agency directing that the
transactions provided for herein not be consummated as herein provided, nor
shall there be any litigation or proceeding pending or threatened in
respect of the transactions contemplated hereby.
7.1.5 Instruments of Transfer and Other Documents. ZiaSun shall have
delivered to Purchasers instruments of transfer which vest in Purchasers
good and marketable title to the APT Shares as required herein and shall
have delivered all other instruments, certificates and other documents
required to be delivered hereunder.
7.1.6 Necessary Approvals. The execution and delivery of this
Agreement and the terms thereof and all corporate and other action
necessary or required in order to effect the fulfillment of the obligations
of APT and ZiaSun hereunder at or prior to the Closing Date shall have been
approved by all necessary governmental bodies or agencies and all consents
of any person contemplated by this Agreement to be obtained prior to the
Closing shall have been obtained.
7.2 ZiaSun represents and warrants that it has not caused, and it covenants
and agrees that it shall not cause, any event that would prevent the
satisfaction of all of the conditions set forth in Article 8., of this
Agreement. ZiaSun covenants and agrees to take all action reasonably required on
its part to satisfy such conditions.
ARTICLE 8.
CONDITIONS PRECEDENT TO OBLIGATIONS OF ZIASUN
8.1 The obligations of ZiaSun hereunder are subject to the following
conditions, any of which may be waived in writing by ZiaSun:
8.1.1 This Agreement; Related Agreements. This Agreement and any
related agreements shall have been executed and delivered, shall be in full
force and effect and no term or condition hereof or thereof shall have been
amended, modified or waived except with ZiaSun's prior written consent. All
covenants, agreements and conditions contained herein or in any related
agreements which are to be performed or complied with on or prior to the
Closing Date, other than by ZiaSun or APT, shall have been performed or
complied with (or waived with ZiaSun's prior written consent) in all
material respects.
8.1.2 Related Conditions Satisfied. All conditions to purchase as set
forth herein, have been satisfied as of the Closing Date, except to the
extent to be fulfilled by APT.
8.1.3 Deliveries by Purchasers. Purchasers shall have delivered to
ZiaSun all consideration, certificates and documents to be delivered
pursuant to Article 6., above.
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8.1.4 Deliveries by APT. APT shall have delivered to ZiaSun all
consideration, certificates and documents to be delivered pursuant to
Article 6., above.
8.1.5 Representations and Warranties True at Closing. The
representations and warranties of Purchasers contained in this Agreement
shall have been true and correct when made and shall be true and correct on
the Closing Date with the same effect as if made on such date, and
Purchasers shall have delivered a Certificate to such effect to ZiaSun.
8.1.6 Performance of Agreement and Conditions. Purchasers shall have
performed and complied with all agreements and conditions required by this
Agreement to be performed or complied with by Purchasers prior to or at the
Closing Date Purchasers shall have delivered the Purchase Price to ZiaSun
at the Closing in the form provided hereby and shall have satisfied all
other financial obligations as set forth herein.
8.1.7 No Injunction. On the Closing Date, there shall not be in effect
any injunction, writ, preliminary restraining order or any order of any
nature issued by a court or other governmental body or agency directing
that the transactions provided for herein not be consummated as herein
provided, nor shall there be any litigation or proceeding pending or
threatened with respect to the transactions contemplated hereby.
8.1.8 Necessary Approvals. The execution and delivery of this
Agreement and the Exhibits hereto and all other action necessary or proper
to effectuate the fulfillment of the obligations of Purchasers to be
performed hereunder in or prior to the Closing Date shall have been duly
authorized and approved, to the extent required by law.
(a) The execution and delivery of the documents and items set
forth herein.
(b) This Agreement has been duly executed and delivered by
Purchasers.
8.2 Purchasers. To the best of Purchasers' knowledge, Purchasers represent
and warrant that they have not caused, and they covenant and agree that they
shall not cause, any event that would prevent the satisfaction of all of the
conditions set forth in this Agreement. Purchasers covenant and agree to take
all action reasonably required on their part to satisfy such conditions.
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ARTICLE 9.
INDEMNIFICATION AND HOLD HARMLESS
9.1 Indemnification by ZiaSun The ZiaSun agrees to indemnify, defend and
hold the Purchasers, and their officers, directors, agents, attorneys and
representatives, harmless against and in respect of any and all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorney fees that it
shall incur or suffer, which arise out of, result or relate to any breach of, or
failure by ZiaSun to perform any of its material representations, warranties,
covenants or agreements in this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or to be furnished by ZiaSun under this
Agreement; provided however, that notice of any such breach shall have been
communicated with specificity within one (1) year of the date hereof.
9.2 Indemnification of ZiaSun by APT. APT agrees to indemnify, defend and
hold the ZiaSun and its officers, directors, agents, attorneys and
representatives harmless against and in respect of any and all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorney fees, that
it shall incur or suffer, which arise out of, result or relate to any act of
APT, its officer's, or directors, agents, representatives, and employees from
any claim from APT's inception.
9.3 Indemnification of ZiaSun by Purchaser. Purchaser agrees to indemnify,
defend and hold the ZiaSun and its officers, directors, agents, attorneys and
representatives harmless against and in respect of any and all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorney fees, that
it shall incur or suffer, which arise out of, result or relate to (a) any breach
of, or failure by Purchasers to perform any of their material representations,
warranties, covenants or agreements in this Agreement or in any schedule,
certificate, exhibit or other instrument furnished or to be furnished by
Purchasers under this Agreement; provided however, that notice of any such
breach shall have been communicated with specificity within one (1) year of the
date hereof, and (b) any act of APT, its officer's, or directors, agents,
representatives, and employees from any claim from the date of the Closing and
thereafter.
9.4 Notice and Opportunity to Defend. If there occurs an event which any
Party asserts is an indemnifiable event, the Party seeking indemnification shall
notify the Party obligated to provide indemnification (the "Indemnifying Party")
promptly. If such event involves (i) any claim or (ii) the commencement of any
action or proceeding by a third person, the Party seeking indemnification will
give such Indemnifying Party written notice of such claim or the commencement of
such action or proceeding. Such notice shall be a condition precedent to any
liability of the Indemnifying Party hereunder. Such Indemnifying Party shall
have a period of thirty (30) days within which to respond thereto. If such
Indemnifying Party does not respond within such thirty (30) days period, such
Indemnifying Party shall be obligated to compromise or defend, at its own
expense and by counsel chosen by the Indemnifying Party shall provide reasonably
satisfactory to the Party seeking indemnity, such matter and the Indemnifying
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Party shall provide the Party seeking indemnification with such assurances as
may be reasonably required by the latter to assure that the Indemnifying Party
will assume, and be responsible for, the entire liability issue. If such
Indemnifying Party does not respond within such thirty (30) day period and
rejects responsibility for such matter in whole or in part, the Party seeking
indemnification shall be free to pursue, without prejudice to any of its rights
hereunder, such remedies as may be available to such Party under applicable law.
The Party seeking indemnification agrees to cooperate fully with the
Indemnifying Party and its counsel in the defense against any such asserted
liability. In any event, the Party seeking indemnification shall have the right
to participate at its own expense in the defense of such asserted liability. Any
compromise of such asserted liability by the Indemnifying Party shall require
the prior written consent of the Party seeking indemnification. If, however, the
Party seeking indemnification refuses its consent to a bona fide offer of
settlement which the Indemnifying Party wishes to accept, the Party seeking
indemnification may continue to pursue such matter, free of any participation by
the Indemnifying Party, at the sole expense of the Party seeking
indemnification. In such event, the obligation of the Indemnifying Party to the
Party seeking indemnification shall be equal to the lesser of (i) the amount of
the offer of settlement which the Party seeking indemnification refused to
accept plus the costs and expenses of such Party prior to the date the
Indemnifying Party notifies the Party seeking indemnification of the offer of
settlement and (ii) the actual out-of-pocket amount the Party seeking
indemnification is obligated to pay as a result of such Party's continuing to
pursue such an offer. An Indemnifying Party shall be entitled to recover from
the Party seeking indemnification any additional expenses incurred by such
Indemnifying Party as a result of the decision of the Party seeking
indemnification to pursue such matter.
9.5 The obligations under Article 9 shall survive the Closing hereunder and
Termination of this Agreement. Purchasers, ZiaSun, and APT shall promptly notify
the responsible party of the existence of any claim, demand or other matter to
which such indemnification obligations would apply, and shall give a reasonable
opportunity to defend the same at their own expense and with counsel of their
own selection; provided, if that party fails to defend the same, Purchasers,
ZiaSun or APT, as the case may be, shall have the right to contract and defend
the same, and in any event Purchasers, ZiaSun, or APT, shall at all times also
have the right fully to participate in the defense of, and to compromise or
settle in good faith the claim or other matter on behalf, for the account and at
the risk of the other parties. If the claim is one that cannot by its nature be
defended solely by ZiaSun, Purchasers, or APT, then Purchasers, ZiaSun or APT
shall make available all information and assistance that Purchasers, ZiaSun, or
APT may reasonably request.
ARTICLE 10.
ACCESS TO INFORMATION
10.1 From the date hereof until the Closing Date, Purchasers, through their
employees, accountants, attorneys and other representatives, may make such
investigation of the financial and legal condition, business, operations and
properties of APT as it may deem necessary or advisable, and ZiaSun agrees to
cause APT to make available to such persons all records and other information
and data, including corporate records and copies of documents, as Purchasers may
reasonably request, and to have its personnel cooperate with Purchasers'
representatives. Such investigation shall be made at reasonable hours so as not
to interfere with the operations of APT. In the event that the transactions
contemplated hereby are not consummated, all documents obtained by Purchasers
from APT shall be promptly returned to them and all information obtained by
Purchasers concerning APT shall be kept strictly confidential and shall not be
used for competitive purposes.
13
ARTICLE 11.
OPERATION OF THE BUSINESS PENDING CLOSING.
11.1 Except as otherwise provided herein, between the date of this
Agreement and the Closing Date, ZiaSun and APT shall operate the businesses of
APT in such a manner as to keep intact the business organization of APT keep
available the services of the employees and preserve its present relations with
the suppliers and customers.
ARTICLE 12.
BROKERAGE.
12.1 Each party represents and warrants to the others that no person or
persons assisted in or brought about the negotiation of this Agreement in the
capacity of broker, agent, finder or organizer on behalf of it. Each party
("First Party") agrees to indemnify and hold harmless the others from any claim
asserted against the others for a brokerage or agent's or finder's or
originator's commission or compensation pertaining to the transactions
contemplated by this Agreement by any person purporting to have acted on behalf
of First Party.
ARTICLE 13.
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
13.1 All representations, warranties and agreements by ZiaSun, APT, or the
Purchasers pursuant hereto shall survive the closing of this transaction and
shall not be affected by any investigation at any time made by or on behalf of
any party.
ARTICLE 14.
TERMINATION PRIOR TO THE CLOSING.
14.1 This Agreement shall terminate and be of no further force or effect
between the parties hereto except as to liability for breach or default of any
covenant, agreement, representation, warranty, duty or obligation occurring or
arising prior to the date of termination, upon the occurrence of any of the
following:
14.1.1 Immediately prior to Closing, the Purchasers have given notice
to ZiaSun of the material breach or default by APT or ZiaSun in the
performance of any covenant, agreement, representation, warranty, duty or
obligation hereunder, and provided that no such termination shall be
effective if, prior to Closing, the breaching party shall have fully and
completely corrected and cured the grounds for the termination as set forth
in said notice of termination.
14
14.1.2 Immediately prior to Closing, ZiaSun has given notice to
Purchasers of material breach or default in the performance of any
covenant, agreement, representation, warranty, duty or obligation of
Purchasers hereunder, and provided that no such termination shall be
effective, if prior to Closing the Purchasers shall have fully and
completely corrected and cured the grounds for the termination as set forth
in said notice of termination.
14.2 Notwithstanding anything to the contrary contained herein, no party
hereto shall have the right to terminate this Agreement due to its own breach or
because of any immaterial breach by any other party hereto or any covenant,
agreement, representation, warranty, duty or obligation hereunder.
14.3 No termination of this Agreement for any reason or in any manner shall
release, or be construed as so releasing, any party hereto from any liability or
damage to any other party hereto arising out of, in connection with or otherwise
relating to, directly to, directly or indirectly, said party's breach, default,
or failure in performance of any of its covenants, agreements, duties or
obligations arising hereunder, or any of its misrepresentations of any
representations or warranty herein contained.
ARTICLE 15.
MISCELLANEOUS
15.1 Payment of Expenses. ZiaSun, APT and Purchasers shall each pay all of
their own respective expenses incident to the preparation, execution and
consummation of this Agreement.
15.2 Binding Agreement. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by and
against the parties hereto and their respective successors, assigns,
transferees, heirs, representatives and estates.
15.3 Notices. Any notice or other communication required or permitted
hereunder shall be expressed in writing and sent by certified or registered
mail, return receipt requested, to their respective parties at the following
addresses, or at such other addresses as the parties shall designate by written
notice to be the other:
If to the Purchasers, addressed to:
----------------------------------
Xxxxxxx X. Xxx and Xxxxxx X. Xxx
0000 Xxxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
If to APT, addressed to:
-----------------------
Xx. Xxxxxxx X. Xxx
Asia Prepress Technology, Inc.
0000 Xxxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
15
If to the ZiaSun, addressed to:
------------------------------
Xx. Xxxxx X. Xxxxxxx
President and COO
ZiaSun Technologies, Inc.
000 Xxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx xxxxx, XX 00000
15.5 Article Headings. The Article headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15.6 Exhibits. All Exhibits referred to in this Agreement shall be attached
hereto and are hereby incorporated herein.
15.7 Counterparts. This Agreement may be executed in any one or more
counterparts, all of which taken together shall constitute one instrument.
15.8 Cooperation. Each party shall cooperate and use its best efforts to
consummate the transactions contemplated herein. In addition, each party shall
cooperate and take such action and execute such other and further documents as
may be reasonably requested from time to time after the Closing Date by any
other party to carry out the terms and provisions and intend of this Agreement.
15.9 Gender. Wherever the context of this Agreement so requires or permits,
the masculine herein shall include the feminine or the neuter, the singular
shall include the plural, and the term "person" shall also include "corporation"
or other business entity.
15.10 Facsimile Signatures. It is expressly agreed that the parties may
execute this Agreement via facsimile signature and such facsimile signature
pages shall be treated as originals for all purposes.
15.11 Entire Agreement. This Agreement and the other documents delivered
concurrently herewith or pursuant hereto constitute the entire agreement among
the parties hereto, and it is understood and agreed that there are no other than
those contained herein. This Agreement may not be changed or modified except by
a writing duly executed by the parties hereto.
15.12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to agreements
made and to be performed entirely within said State, and without regard to its
choice of law principles.
15.13. Jurisdiction and Venue. With regard solely to any action instituted
by the Lender as a result of the breach by Borrower of the Promissory Note
referenced herein, for failure to make the requisite payments when due, all
parties hereto consents to submit itself to the personal jurisdiction of the
Superior Court of the State of California, County of San Diego, and agree that
Venue for such action for failure to pay shall be the Superior Court of
California, County of San Diego. The parties further agree that they will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court.
16
With regard to any action or dispute that may arise between the parties
relating to this Agreement, other than Borrower's failure to make payments as
required under this Promissory Note, general principals of jurisdiction and
venue shall apply.
15.14 Attorneys' Fees. Subject to the specific provisions of Article
9., above, if any action or other proceeding, in law or in equity, is brought
for the enforcement of this Agreement or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party or parties shall be entitled to
recover its or their reasonable attorney's fees and other costs incurred in that
arbitration, action or proceeding, in addition to any other relief to which it
or may be entitled.
17
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first written above.
ZIASUN TECHNOLOGIES, INC.
Dated: 27 June 2001 /S/ Xxxxx X. Xxxxxxx
----------------------------------
By: Xxxxx X. Xxxxxxx
Its: President and COO
Dated: 06/21/2001 /S/ D. Xxxxx Xxxxx
----------------------------------
By: D. Xxxxx Xxxxx
Its: Chairman of the Board and CEO
ASIA PREPRESS TECHNOLOGY, INC.
Dated: 6/12/01 /S/ Xxxxxxx X. Xxx
----------------------------------
By: Xxxxxxx X. Xxx
Its: President and CEO
PURCHASERS
Dated: 6/12/01 /S/ Xxxxxxx X. Xxx
----------------------------------
Xxxxxxx X. Xxx
Dated: 6/27/01 /S/ Xxxxxx X. Xxx
----------------------------------
Xxxxxx X. Xxx
EXHIBIT 3.1
FORM OF
UNSECURED PROMISSORY NOTE
UNSECURED PROMISSORY NOTE
===============================================================================
PRINCIPAL AMOUNT: $50,000.00
INTEREST RATE: 5.0% interest.
BORROWER: Xxxxxxx X. Xxx
LENDER: ZiaSun Technologies, Inc.
A Nevada Corporation
PAYMENTS/DUE DATES: PRINCIPAL AND ANY UNPAID ACCRUED INTEREST DUE
AND PAYABLE IN EQUAL PAYMENT, ON OR BEFORE JUNE 15, 2003
AND JUNE 15, 2004.
================================================================================
1. For value received, Xxxxxxx X. Xxx, hereinafter referred to as
"Borrower" promises to pay ZiaSun Technologies, Inc., a Nevada corporation,
hereinafter referred to as "Lender", or to order, the principal amount of
$50,000.00 with interest thereon at the rate of Five percent (5.0%) per annum,
from the date hereof.
2. Due Date. The principal and unpaid accrued interest shall be due and
payable in two equal installments on or before June 15, 2003 and June 15, 2004.
Borrower and Lender agree that the principle and interest accrued as of the date
the note, may become due and/or payable prior to the actual due date at the
discretion of the borrower at anytime without penalty to borrower, and prorated
for interest accrued at the time of the date of payment on a monthly prorated
basis.
3. Interest Accrual. Whereas, Borrower and Lender agree that interest shall
accrue on the unpaid outstanding principal balance, at the rate Five percent
(5.0%) per annum, until paid.
4. Default. Borrower will be in default if any of the following occur:
(a) Borrower fails to make any payment when due;
(b) Borrower breaks any promise Borrower has made to Lender, or
Borrower fails to perform promptly at the time and strictly in the manner
provided in this Note or in any other agreement or loan Borrower has with
Lender;
(c) Any representation or statement made or furnished to Lender by
Borrower or on Borrower's behalf is false or misleading in any material
respect;
1
(d) Borrower becomes Insolvent, a receiver is appointed for any part
of Borrower's property, Borrower makes an assignment for the benefit of
creditors, or any proceeding is commenced either by Borrower or against
Borrower under any Bankruptcy or Insolvency laws;
(e) Any of the events described in this default section occurs with
respect to any guarantor of this Note.
5. Notices. Any notice, payment or other communication required or
permitted hereunder shall be expressed in writing and sent by certified or
registered mail, return receipt requested, to their respective parties at the
following addresses, or at such other addresses as the parties shall designate
by written notice to be the other:
If to the Lender to:
-------------------
Xx. Xxxxx X. Xxxxxxx
President and COO
ZiaSun Technologies, Inc.
000 Xxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
If to the Borrower to:
---------------------
Xx. Xxxxxxx X. Xxx
0000 Xxxxx Xxxx
Xxxx Xxxxxx, XX 00000
6. No Prepayment Penalty. Borrower shall have the right to prepay the full
amount of any unpaid principal and accrued interest thereon, at any time without
any penalty.
7. Attorneys Fees. Borrower agrees that if any legal action is necessary to
enforce or collect this Note, the prevailing party shall be entitled to
reasonable attorneys' fees in addition to any other relief to which that party
may be entitled. This provision shall be applicable to the entire Note.
8. Governing Law. Regardless of jurisdiction or venue of any action, as set
forth below, this Promissory Note shall be governed by and construed in
accordance with the laws of the State of California applicable to agreements
made and to be performed entirely within said State, and without regard to its
choice of law principles.
9. Jurisdiction and Venue. With regard solely to any action instituted by
the Lender as a result of the breach by Borrower of this Note for failure to
make the requisite payments when due, all parties hereto consents to submit
itself to the personal jurisdiction of the Superior Court of the State of
California, County of San Diego, and agree that Venue for such action for
failure to pay shall be the Superior Court of California, County of San Diego.
The parties further agree that they will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court.
2
With regard to any action or dispute that may arise between the parties
relating to certain Share Purchase Agreement executed concurrently herewith,
other than Borrower's failure to make payments as required under this Promissory
Note, general principals of jurisdiction and venue shall apply.
10. Method of Payment. Principal and interest shall be payable in lawful
money of the United States. Notwithstanding anything contained herein to the
contrary, the amount of interest payable under the terms of this Note shall in
no event exceed the maximum amount of interest permitted to be charged by law at
the date of execution hereof.
11. Counterparts. This Sublease may be executed in any one or more
counterparts, all of which taken together shall constitute one instrument.
IN WITNESS WHEREOF, this Unsecured Promissory Note was executed on the date
and year written below.
BORROWER
XXXXXXX X. XXX
Dated: 6/12/01 /S/ Xxxxxxx X. Xxx
--------------------------------------
Xxxxxxx X. Xxx
LENDER
ZIASUN TECHNOLOGIES, INC.
Dated: 27 June 2001 /S/ Xxxxx X. Xxxxxxx
--------------------------------------
By: Xxxxx X. Xxxxxxx
Its: President and COO
3
EXHIBIT 4.1.4
REQUIRED GOVERNMENT APPROVALS
OF
ZIASUN OR APT
NONE.
EXHIBIT 4.4
EXCEPTIONS TO TITLE TO ASSETS AND LEASES
OF
APT
Pursuant to the terms of that certain Loan Agreement and Security Agreement
dated October 4, 2000, executed by APT in favor of First Union National Bank,
APT has granted to First Union National Bank, a continuing security interest in
and lien upon all properties, accounts, assets and proceeds thereof, now owned
or acquired in the future, as security for the repayment of the Promissory Note
in the principal amount of $150,000 as of June 25, 2001.
EXHIBIT 4.6
LITIGATION AND PENDING OR THREATEN CLAIMS
OF
APT
NONE.
EXHIBIT 4.7
EXCEPTIONS TO TAX RETURNS
AND
REPORTS REQUIRED TO BE FILED
BY
APT
EXHIBIT 4.8
LIABILITIES, INDEBTEDNESS AND LIENS
OF
APT
Pursuant to the terms of that certain Loan Agreement, Promissory Note and
Security Agreement dated October 4, 2000, executed by APT in favor of First
Union National Bank, APT is indebted to First Union National Bank, of unpaid
principal and accrued interest of $130,000 as of the date hereof.
EXHIBIT 5.1.3
REQUIRED GOVERNMENT APPROVALS
OF
PURCHASERS
NONE.
