EXHIBIT 10.7
PURCHASE AND SALE AGREEMENT
This agreement is made between the parties as of the 5th day of March, 2002.
1. PARTIES
1.1 Pivotal Self-Service Technologies Inc. a Delaware corporation
(the "Vendor").
1.2 4CASH ATM Services Canada Inc., an Ontario corporation (the
"Corporation").
1.3 IRMG Inc., an Ontario corporation (the "Purchaser").
2. RECITALS
2.1 This agreement sets out the terms and conditions by which the Purchaser
agrees to purchase and the Vendor agrees to sell all of the issued and
outstanding shares of the Corporation (the "Shares"), all the intellectual
property rights to operate the business of the Corporation, the name
"Pivotal Self-Service Technologies", the Pivotal website and Pivotal and
4CASH URL (collectively the "Shares and Intellectual Property Rights").
3. PURCHASE AND SALE OF SHARES AND INTELLECTUAL PROPERTY RIGHTS
3.1 The Purchaser agrees to purchase the Shares and Intellectual Property
Rights from the Vendor and to tender in full satisfaction of the purchase
price, the following (the "Payment"):
(a) Warrants to purchase 5,000,000 shares of the Vendor's common stock
issued to the Purchaser will be surrendered for cancellation.
(b) The right to 10,000,000 shares of Vendor's common stock issuable to
the Purchaser upon the achievement of US$1,000,000 cumulative net
profit before taxes from June 15, 2001 will be surrendered for
cancellation.
(c) Warrants to purchase 1,100,000 shares of the Vendor's common stock
issued to Xx. Xxxxxxx X. Cussons will be surrendered for
cancellation.
3.2 The Vendor agrees to sell to the Purchaser the Shares and Intellectual
Property Rights and to accept the Payment in full satisfaction of the
purchase price.
3.3 Each party agrees to cooperate with each other party to provide access to
all information reasonably requested by another party to verify the
truthfulness of the representations and warranties contained herein or in
any other collateral document.
3.4 The effective date of closing of the purchase and sale contemplated herein
shall be February 22, 2002, formal closing shall be March 5, 2002,
provided that at or before closing the conditions of closing shall have
been satisfied or waived by the party or parties for whom such conditions
were for the exclusive benefit. Upon the closing, the transfer of Shares
shall be effective from and after the effective date of closing.
3.5 It is understood and agreed that the Vendor shall request and undertake to
obtain the approval of shareholders holding 50% of the shares of the
Vendor plus one for the sale of the Shares contemplated herein at the next
general or special meeting of shareholders.
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4. TERMINATION OF MANAGEMENT SERVICES AGREEMENT
4.1. The Purchaser and Vendor mutually agree to terminate the Management
Services Agreement dated June 15, 2002 effective February 22, 2002 without
notice or penalty.
4.2. As of February 22, 2002 the Vendor is indebted to the Purchaser for
approximately $104,350 under the Management Services Agreement and
Purchaser agrees to accept Cdn$25,000 cash for full and complete
settlement if paid by March 31, 2002, otherwise $104,350 remains obligated
by the Vendor to the Purchaser.
5. OPTION TO ACQUIRE PURCHASER'S SHARES OF VENDOR
5.1. The Purchaser agrees to xxxxx Xxxx X. Xxxxxxxx and/or Xxxxx Xxxxx-Xxxxx,
or their desginee, an option to acquire up to 5,000,000 shares of the
Vendor's common stock owned by the Purchaser at US$0.01 per share for the
period February 22, 2002 to March 31, 2002.
6. VENDOR'S RIGHT TO PURSUE SELF-SERVICE TECHNOLOGY OPPORTUNITIES
6.1. The Purchaser agrees that effective February 22, 2002 the Vendor shall
have the right to pursue any and all Self-Service Technology business
opportunities, defined as Automated Teller Machine ("ATM"), information
kiosk, Point of Sale ("POS") or related business opportunities, whether
now known to the Purchaser or discovered in the future.
6.2. The Purchaser, and its Officers and Directors release all interests in any
and all Self-Service Technology business opportunities whether now known
to the Purchaser or discovered in the future.
7. RESIGNATION OF DIRECTORS AND OFFICERS
7.1. Effective February 22, 2002, Xx. Xxxxxxx X. Cussons and Xx. Xxxx X.
Xxxxxxxx resign as Directors of the Vendor.
7.2. Effective February 22, 2002, Xx. Xxxxxxx X. Cussons resigns as President
and CEO of the Vendor.
7.3. Effective February 22, 2002 options previously granted to Xx. Xxxxxxx X.
Cussons and Xx. Xxxx X. Xxxxxxxx in their capacity as directors are
returned to the Company.
7.4. Effective February 22, 2002, Xx. Xxxx X. Xxxxxxxx agrees to continue as
interim CFO until a new business opportunity is found for the Vendor.
Vendor agrees to enter into a new six month Management Services Agreement
with the Purchaser for the services of Xx. Xxxxxxxx at a rate of Cdn$150
per hour. All other terms and conditions to be determined in due course.
8. CONDITIONS OF CLOSING
8.1. The obligation of the Purchaser to complete this agreement is subject only
to the following:
(1) the representations and warranties of the Vendor and the Corporation shall
be true in all material respects now and on the Closing Date;
(2) receipt at closing of the following:
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(a) full and final releases of the Corporation, Xxxxxxx X. Cussons, and
Xxxx X. Xxxxxxxx by Xxxxx Xxxxx-Xxxxx, Xxxx X. Xxxxxxxx, and the
Vendor;
(b) undertaking and/or other assurances of Xxxxx Xxxxx-Xxxxx, Xxxx X.
Xxxxxxxx, to vote their shares in favour of approval of this
transaction at any shareholders vote where such approval is sought.
(c) undertaking of the Vendor to change its name to a name that does not
contain "Pivotal Self-Service Technologies".
8.2. The obligation of the Vendor to complete this agreement is subject only
to the following:
(1) the representations and warranties of the Purchaser shall be true in all
material respects now and on the Closing Date;
(2) receipt at closing of the following:
(a) full and final releases of Xxxxx Xxxxx-Xxxxx, Xxxx X. Xxxxxxxx and the
Vendor by the Corporation, by Xxxxxxx X. Cussons and by Xxxx X. Xxxxxxxx;
9. REPRESENTATIONS AND WARRANTIES
9.1. The Vendor and the Corporation represent and warrant as of the date of
execution of this agreement, and as of the Closing Date, as follows:
(1) the Corporation is duly incorporated and validly subsisting under the laws
of the Province of Ontario.
(2) the Corporation has full, right, power and capacity to enter into this
agreement and perform the obligations of the Corporation contained herein.
The Vendor has full, right, power and capacity to enter into this agreement
and perform the obligations of the Vendor contained herein. The within
representations and warranties are subject only to the Vendor's covenant to
obtain shareholder approval of the transaction after closing as contained
herein.
(3) The execution and delivery of this agreement and the consummation of the
transactions contemplated hereby, have been duly authorized, executed, and
delivered by proper corporate action of the Vendor and the Corporation.
Shareholders' consent will be obtained after closing if necessary.
(4) This agreement is valid and binding as against the Vendor and the
Corporation, enforceable against such parties in accordance with its terms,
except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or other laws of general
application affecting enforcement of creditors rights or by general
principles of equity. The within representations and warranties are subject
only to the Vendor's covenant to obtain shareholder approval of the
transaction after closing as contained herein.
(5) All consents, approvals, qualifications, orders and authorizations of, or
filings with all local, state, provincial and federal governmental
authorities required on the part of the Corporation and the Vendor in
connection with each of such party's valid execution, delivery or
performance of this agreement, the offer, sale, issuance or delivery of
common shares of the Corporation, or the performance by the Corporation and
the Vendor of its respective obligations in respect thereof have been
obtained and all required filings have been made. The within representations
and warranties are subject only to the Vendor's covenant to obtain
shareholder approval of the transaction after closing as contained herein if
necessary.
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(6) The execution, delivery, or performance by the Vendor and the Corporation of
this agreement, or compliance with the terms and provisions of this
agreement, or the consummation of the transactions contemplated by this
agreement will not:
(a) to the best of the knowledge of the Vendor and the Corporation, without
investigation, contravene any applicable law, statute, rule, regulation,
order, writ, injunction or decree of any Federal, state, provincial or local
government, court or governmental department, commission, board, bureau,
agency or instrumentality;
(b) conflict or be inconsistent with, or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default
(either immediately or with notice or the passage of time or both) under any
indenture, mortgage, deed of trust, credit agreement or instrument or any
other material agreement or instrument to which any of the Vendor or the
Corporation is a party or by which it may be bound or to which any of the
foregoing may be subject; or
(c) violate any provisions of the charter documents or bylaws or other
constituting documents of any of the Vendor or the Corporation.
(7) Except the Shares, there are no other shares, options, rights, warrants or
other securities capable of being converted to shares of the Corporation
issued and outstanding. The Shares are validly issued as fully paid shares
by proper corporate authority.
(8) The Vendor is the legal and beneficial owner of all of the Shares and
Intellectual Property Rights free of encumbrances.
(9) No person has any agreement, option, understanding or commitment, or any
right or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement, option or commitment, including convertible
securities, options, warrants or convertible obligations of any nature, for:
(i) to the best of the Vendor's knowledge, the purchase, subscription,
allotment or issuance of, or conversion into, any of the unissued shares
in the capital of the Corporation or any securities of the Corporation;
(ii) the purchase from the Vendor of any of the Shares; or
(iii) to the best of the Vendor's knowledge, the purchase or other acquisition
from of the Vendor or the Corporation of any its undertaking, property or
assets, other than in the ordinary course of business;
1. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
9.2. The Purchaser represents and warrants as of the date of execution of this
agreement, and as of the Closing Date, as follows:
(1) the Purchaser is duly incorporated and validly subsisting under the laws of
the Province of Ontario.
(2) The execution and delivery of this agreement and the consummation of the
transactions contemplated hereby, have been duly authorized, executed, and
delivered by proper corporate action.
(3) the Purchaser has full, right, power and capacity to enter into this
agreement and perform the obligations of the Purchaser contained herein.
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(4) This agreement is valid and binding as against the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or other laws of general application affecting
enforcement of creditors rights or by general principles of equity.
(5) All consents, approvals, qualifications, orders and authorizations of, or
filings with all local, state and federal governmental authorities required
on the part of the Purchaser in connection with the Purchaser's valid
execution, delivery or performance of this agreement, the offer, sale,
issuance or delivery of common shares of the Purchaser, or the performance
by the Purchaser of its obligations in respect thereof have been obtained
and all required filings have been made or will be made on a timely basis.
(6) The execution, delivery, or performance by the Purchaser of this agreement,
or compliance with the terms and provisions of this agreement, or the
consummation of the transactions contemplated by this agreement will not:
(a) to the best of the knowledge of the Purchaser, without investigation,
contravene any applicable law, statute, rule, regulation, order, writ,
injunction or decree of any Federal, state or local government, court or
governmental department, commission, board, bureau, agency or
instrumentality;
(b) conflict or be inconsistent with, or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default
(either immediately or with notice or the passage of time or both) under any
indenture, mortgage, deed of trust, credit agreement or instrument or any
other material agreement or instrument to which the Purchaser is a party or
by which it may be bound or to which any of the foregoing may be subject; or
(c) violate any provisions of the charter documents or bylaws of the Purchaser.
10. NON-LITIGATION / CROSS INDEMNIFICATION
10.1. Upon the closing of the purchase and sale contemplated herein all of the
parties to this agreement, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, does hereby release, remise,
acquit and forever discharge the others and all of their respective
officers, directors, agents, representatives, executors, heirs,
affiliates, administrators, predecessors, successors, and assigns (the
"Releasees"), from any and all known, unknown, matured and unmatured,
liquidated and unliquidated, contingent and non-contingent, actions,
causes of action, claims, demands, damages, costs, suits, debts, dues,
sums of money, accounts, reckonings, bills, covenants, contracts, liens,
controversies, agreement, promises, variances, trespasses, extents and
executions whatsoever, at law or in equity (collectively, the "Claims")
which the parties to this agreement, or any of them, had, have or may have
against one or more of the Releasees in respect of any conduct, any matter
or document, and any Claims, arising, in whole or in part, at any time
prior to the execution of this agreement or thereafter in respect of the
performance of any obligations of any parties hereto save and except for
any Claims arising from this Agreement or any document delivered pursuant
to this Agreement.
10.2. And for the said consideration each of the parties to this agreement
agrees that it shall not make any claim or take any proceedings against
any other person, corporation or legal entity which might claim
contribution or indemnity from any of the Releasees under the provisions
of any statute or otherwise with respect to any cause, matter or thing
released by paragraph 10.1 hereof.
10.3. The Vendor and the Corporation hereby indemnify and hold the Purchaser
harmless from and against any claims, actions, damages, losses, reasonable
legal fees and expenses that may be suffered by the Purchaser in the event
that the representation and warranties of the Vendor and the Corporation
prove
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to be untrue in any material respect as of the Closing Date. The
Purchaser hereby indemnifies and holds the Vendor harmless from and
against any claims, actions, damages, losses reasonable legal fees and
expenses that may be suffered by the Vendor in the event that the
representation and warranties of the Purchaser prove to be untrue in any
material respect as of the Closing Date. This paragraph 10.3 shall survive
closing of the purchase and sale contemplated herein for a period of three
years after closing.
11. GENERAL
11.1. This Agreement is binding on the parties, and together with the documents
contemplated herein constitutes the whole and complete statement of
agreement between the parties as to the subject matter hereof.
11.2. This agreement, and all ancillary agreements between the parties may be
executed in counterparts and delivered by facsimile transmission. All
counterparts shall be read together to constitute one agreement.
11.3. Each of the parties hereto agrees to do such further acts and execute such
further documents as may be necessary or appropriate to give effect to the
terms of this Agreement both before and after the closing.
11.4. The parties attorn to the non-exclusive jurisdiction of the courts of the
Province of Ontario. The laws of the Province of Ontario shall govern the
validity and interpretation of this agreement.
11.5. Each of the parties hereto individually represents and warrants that it
has the right, power and capacity to enter into and perform its
obligations as set out herein.
11.6. Notices shall be properly given to a party if delivered, or if sent by
facsimile transmission to the facsimile numbers set out below, or if sent
by Federal Express courier, pre-paid to the addresses set out below and
signed for at the address set forth for receipt, or if sent by pre-paid
post to the addresses set out below, provided that if a postal disruption
is imminent, notices shall not be sent by pre-paid post. If delivered,
notice shall be effective upon receipt. If sent by facsimile transmission,
notice shall be effective at the date and time of transmittal. If sent by
Federal Express courier, notice shall be effective upon receipt. If sent
by pre-paid post, notice shall be effective five (5) business days after
the date of posting.
Addresses for service of notice:
The Corporation and the Vendor address:
00000 Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxx, X0X 0X0
Fax: 000-000-0000
The Purchaser: address:
0000 Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx, X0X 0X0
Fax: 000-000-0000
11.7. This agreement is not assignable by the Vendor or the Purchaser, without
the written permission of the other.
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11.8. The parties confirm that there have been no brokers or finders in
connection with the transactions contemplated herein, and each party
agrees to indemnify the other against any brokers' or finders' fees or
commissions or other compensation sought by persons purporting to have
acted as agent or finder for such party in connection with the
transactions contemplated herein.
11.9. Each party is responsible for his or her or its own expenses, including
professional fees and disbursements and applicable taxes, in connection
with the negotiation, drafting, execution and delivery of this agreement,
and the conduct of any due diligence sought to be conducted by such party,
except as otherwise expressly provided to the contrary.
IN WITNESS WHEREOF THE PARTIES HAVE CAUSED THESE PRESENTS TO BE EXECUTED AS OF
THE DAY AND YEAR FIRST ABOVE WRITTEN.
Pivotal Self-Service Technologies Inc.
Per:
------------------------------
Xxxx X. Xxxxxxxx
Director
4CASH ATM Services Canada Inc.
Per:
------------------------------
Xxxx X. Xxxxxxxx
CFO
IRMG Inc.
Per:
------------------------------
Xxxx X. Xxxxxxxx
CFO
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