EXHIBIT 2.1
AGREEMENT FOR SALE OF SHARES
This agreement was entered into on the 22 day of February, 2002,
between:
Nextgen Communications Corporation, a corporation organized and
existing under the laws of the State of Delaware, with its principal
place of business at 00000 Xxxxx Xxxx, Xxxxxxx, XX 00000 (referred to
as "seller-shareholder" or "seller-corporation"), and
Point to Point of Louisiana, Inc., a corporation organized and existing
under the laws of the State of Louisiana, with its principal place of
business at Xxx Xxx Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (referred to as
"buyer" or "acquiring corporation").
RECITALS
(1) Seller-shareholder owns all of the outstanding shares of capital stock of
seller-corporation.
(2) Seller-corporation is engaged in the business of network services, and its
customers include a number of major corporations.
(3) Buyer desires to acquire these customers and in general to expand its
network services business in Louisiana, and, to this end, desires to acquire the
shares of capital stock of seller-corporation on the terms and conditions set
forth in this agreement.
Now, therefore, in consideration of the above, and of the mutual covenants
contained in this agreement and other good and valuable consideration, it is
agreed as follows:
SECTION ONE
SALE OF STOCK:
On the terms and subject to the conditions set forth in this agreement,
seller-shareholder agrees to sell, transfer, assign and deliver to buyer, and
buyer agrees to purchase, all of the outstanding shares of capital stock of
seller-corporation, consisting of 1,000 shares of Point to Point Network
Services, Inc. stock of the par value of .001 per share.
SECTION TWO
CONSIDERATION FOR STOCK:
On the terms and subject to the conditions set forth in this agreement, buyer
agrees to pay to seller-shareholder, as the purchase price of the shares of
capital stock of seller-corporation, the sum of One Million Dollars
($1,000,000.00) (see attached secured promissory note). The purchase price,
together with interest on the unpaid balance from the closing date, as defined
at the rate of six and one half percent (6.5%) per annum, shall be payable as
defined in the exhibited promissory note.
SECTION THREE
CONDUCT OF BUSINESS BEFORE CLOSING:
Seller-corporation and seller-shareholder covenant and agree that, from the date
of this agreement until the date of closing, seller-corporation will at all
times conduct its business in the usual and ordinary course and will not,
without the written consent of buyer, (a) purchase, sell, or otherwise dispose
of any property or services of any kind, other than purchases and sales in the
ordinary course of business; (b) mortgage, pledge, create security interests in
or otherwise encumber any of its properties or assets; (c) make or incur any
capital commitment or expenditure or any unusual or long term commitment; (d)
grant any increase in salary or other increased compensation to any of its
employees; (e) declare or pay any dividend or make any other distribution to
shareholders; (f) reveal to third persons any trade secrets, customer lists, or
other confidential or proprietary information, or act otherwise in any manner
that may adversely affect its rights, interests, assets, or business; or (g)
issue or sell any additional stock or other securities, or grant any rights to
subscribe for or to purchase, or any options or warrants for the purchase of,
any additional stock or other securities.
SECTION FOUR
CLOSING:
The closing of the purchase and sale provided for in this agreement shall take
place at 00000 Xxxxx Xxxx, Xxxxxxx, XX, 00000, at 5:00 p.m., on 22 February,
2002, or at such other time and place as may be mutually agreed on by the
parties, the time and date being referred to in this agreement as the closing
date. At the closing, seller shareholder shall deliver to buyer all share
certificates, assignments, and other instruments that may be necessary,
desirable, or appropriate to transfer and assign to buyer all of the outstanding
shares of seller- corporation, all in form and substance satisfactory to counsel
for buyer and with any applicable documentary tax stamps attached.
SECTION FIVE
ACCOUNTS RECEIVABLE OF SELLER-CORPORATION:
The accounts receivable of seller-corporation as of the closing date, shall
remain the property of the acquiring corporation. If any such accounts
receivables are collected thereafter, the amount so collected shall also be the
property of the acquiring corporation.
SECTION SIX
REPRESENTATIONS AND WARRANTIES OF SELLER-SHAREHOLDER:
Seller-shareholder represents and warrants to and agrees with buyer as follows:
(1) Seller-corporation is a corporation duly organized, validly existing, and in
good standing under the laws of Delaware, with full corporate power to carry on
its business as now being conducted and to own and operate the properties and
assets now owned and operated by it. Seller-corporation is duly qualified to
transact business and in good standing in each jurisdiction where the ownership
of its properties or the conduct of its business requires it to be licensed or
qualified to do business. Seller-corporation has delivered to buyer a copy of
its certificate of incorporation and all amendments to the certificate,
certified by the Secretary of State of Delaware, together with a copy of its
bylaws as amended, certified by its secretary.
(2) Seller-corporation has no subsidiaries.
(3) The authorized capital stock of seller-corporation consists of 1,000 shares
of common stock, par value .001 per share, of which all shares are issued and
outstanding as of the date of this agreement. All of the outstanding shares of
seller-corporation are validly issued, fully paid, and non-assessable. There are
no options, warrants, or other agreements or commitments obligating
seller-corporation to issue any additional shares of capital stock or other
securities.
(4) Seller-corporation has delivered to buyer a balance sheet of
seller-corporation as of 31 December, 2001, together with statements of income
and surplus for the last three (3) years then ended. The financial statements
are complete and accurate, have been prepared in accordance with generally
accepted principles of accounting consistently applied, and fairly present the
financial condition of seller-corporation as of 31 December, 2001 and the
results of its operations for the last three (3) years then ended.
Seller-corporation has 0 liabilities, whether absolute, accrued, contingent, or
otherwise, (a) other than the liabilities disclosed or adequately provided for
on the balance sheet as of 31 December, 2001; (b) liabilities incurred in the
ordinary course of business since 31 December, 2001 which, individually and in
the aggregate, are not material in amount; and (c) liabilities disclosed in the
schedule referred to in subparagraph (5) of this section.
(5) Seller-corporation has delivered to buyer a complete and accurate schedule,
identified by reference to this Subparagraph (5) of this Section, listing all
liens, encumbrances, licenses, leases, employment agreements (including any
pension, profit-sharing, bonus or severance pay commitments), collective
bargaining agreements, and other contracts, undertakings, and commitments to
which seller-corporation is a party or by which it is bound or to which any of
its properties are subject. Seller-corporation has performed all obligations
required to be performed by it under such liens, encumbrances, licenses, leases,
contracts, agreements, and other undertakings and commitments and is not in
default under any of them.
(6) Seller-corporation has delivered to buyer a complete and accurate schedule,
identified by reference to this Subparagraph of this Section, listing all
equipment, furniture, fixtures, and other physical assets owned by seller-
corporation as of the date of this agreement.
(7) Seller-corporation has delivered to buyer a complete and accurate schedule,
identified by reference to this Subparagraph of this Section, listing any
trademark registrations, trademark applications, trade names, copyrights, and
licenses owned or held by seller-corporation. Seller-corporation owns or holds
all trademarks, copyrights, licenses, and other rights necessary for the conduct
of its business. The conduct of seller-corporation's business does not conflict
with or infringe any patent, trademark, trade name, copyright, or other rights
of others. No patents, inventions, trademarks, or other rights that are used,
useful, or relate to the business of seller-corporation are owned by
seller-shareholder or by any officer or other employee of seller-corporation.
(8) Seller-corporation has good and marketable title to all properties and
assets used in its business, including all properties and assets reflected in
the balance sheet as of 31 December, 2001, and all properties and assets
acquired by it after that date, subject to no liens, mortgages, pledges,
encumbrances, or charges of any kind, except as disclosed in the Schedule
referred to in Subparagraph (5) of this Section. The equipment and other
facilities of seller-corporation are in good operating condition and repair.
(9) Seller-corporation has delivered to buyer a complete and accurate Schedule,
identified by reference to this Subparagraph of this Section, listing and
briefly describing all policies of fire, liability, life, and other insurance
maintained by seller-corporation. These policies are in amounts and provide
coverages customarily maintained by similar businesses similarly situated and
are in full force and effect on the date of this agreement.
(10) Seller-corporation has delivered to buyer complete and accurate Schedules,
identified by reference to this Subparagraph of this Section, listing (a) all
employees of seller-corporation and their respective rates of compensation,
including fringe benefits; and (b) the principal customers of seller-corporation
and the current fee schedule with those customers, as of 22 February, 2002, the
closing date.
Attached and incorporated by reference, is a true and complete list of all of
the present customers of seller-corporation.
All of the employees of seller-corporation have received all accrued vacation
benefits from seller-corporation through 31 December, 2001.
(11) Incorporated by reference, is a list of all bank accounts and safe deposit
boxes presently maintained by seller-corporation, showing the names of all
persons authorized to make withdrawals or sign checks on those accounts or have
access to them, and any powers of attorney, presently in effect, granted by
seller-corporation.
(12) No litigation, proceeding, or controversy is pending against
seller-corporation before any court or any governmental agency and, to the
knowledge of seller-shareholder, no such litigation, proceeding, or controversy
is threatened or anticipated. Seller-corporation has not violated any laws,
regulations, or orders applicable to its business or activities, and the conduct
of the present business of seller-corporation at its present location is in
conformity with all zoning and building code requirements.
(13) All accounts receivable of seller-corporation shown on its balance sheet as
of 31 December, 2001, and all accounts receivable thereafter acquired by it have
been collected or are collectible in the amounts at which they are carried on
its books.
(14) Since 31 December, 2001, there has been no adverse change in the condition
(financial or otherwise), assets, liabilities, capitalization, or business of
seller-corporation, no dividend or other distribution declared, paid, or made on
any shares of its capital stock, no direct or indirect redemption, purchase, or
other acquisition on any shares of its capital stock, no decrease in its net
worth, assuming a closing date of not later than sixty days (60 days), no
damage, destruction, or loss (whether or not covered by insurance) adversely
affecting its properties, business or prospects; no increase in the rate of
compensation payable or to become payable to any officer or other employee of
seller-corporation (except as disclosed in the Schedule referred to in
Subparagraph (10) of this Section or approved in writing by buyer); no
significant labor dispute; and no other event or condition which has adversely
affected the business of seller- corporation.
(15) Since 31 December, 2001, the business of seller-corporation has been
conducted diligently and in the ordinary course, seller-corporation has not sold
or transferred any of its property or assets, and no employment or other
contracts have been entered into by seller-corporation except as disclosed in
the Schedule furnished pursuant to Subparagraph (5) of this Section.
(16) Seller-corporation has filed all federal, state, and other tax returns that
are required to be filed by it and has paid or made provision for the payment of
all taxes due pursuant to those returns or pursuant to any assessment that is
not being contested. The provision made for taxes on the balance sheet as of 31
December, 2001, is sufficient for the payment of all accrued and unpaid federal,
state, county, municipal, and local tax liabilities of seller-corporation for
the period then ended and for all years prior to that period. Federal income tax
returns of seller-corporation have not been audited by the United States
Internal Revenue Service and seller-corporation has not waived any statute of
limitations governing federal or state income tax claims.
(17) Neither the execution nor the delivery of this agreement by
seller-corporation and seller-shareholder, nor the performance of any of their
respective obligations under this agreement, will result in a breach or
violation of any term or provision of or constitute a default under any
indenture, mortgage, or other agreement or instrument to which either of them is
a party.
(18) Seller-shareholder has good title to all shares of capital stock of
seller-corporation to be sold by seller-shareholder, with full right, power, and
authority to sell and deliver the shares pursuant to this agreement. On delivery
of the shares pursuant to this agreement, buyer will receive good and marketable
title to the shares, free and clear of all liens, encumbrances, restrictions,
equities, and any claims.
SECTION SEVEN
REPRESENTATIONS AND WARRANTIES OF BUYER:
Buyer represents and warrants to and agrees with seller-corporation and
seller-shareholder as follows:
(1) Buyer is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Louisiana.
(2) Buyer does not accept any liabilities or contingencies included in the
"Reorganization Agreement and Plan of Merger" executed on 29 June, 2001, by and
among U.S. Industrial Services, Inc., Point to Point Network Services, Inc. (A
Delaware Corporation), Point to Point Network Services, Inc. (A Massachusetts
Corporation) and W. Xxxxxxx Xxxxxxxx.
(3) The execution, delivery, and performance of this agreement by buyer has been
duly authorized by its board of directors, and will not result in any breach of
or violate or constitute a default under the articles of incorporation or bylaws
of buyer or any indenture, mortgage, or other agreement or instrument to which
it is a party.
SECTION EIGHT
CONDITIONS TO OBLIGATIONS OF BUYER:
The obligations of buyer under this agreement are subject to the fulfillment, at
or prior to the closing date, of the following conditions:
(1) All representations and warranties of seller-shareholder contained in this
agreement and in any certificate or other instrument delivered pursuant to the
provisions of this agreement, or in connection with the transactions
contemplated by this agreement, shall be true on the closing date with the same
force and effect as though the representations and warranties had been made on
the closing date.
(2) Seller-corporation and seller-shareholder shall have performed and complied
with all the terms, covenants, and conditions of this agreement to be performed
or complied with by them, respectively, on or before the closing date.
(3) Seller-shareholder shall have delivered to buyer a certificate, dated as of
the closing date, certifying such detail as buyer may reasonably request to the
fulfillment of the conditions specified in this Section.
(4) No damage, destruction, or loss (whether or not covered by insurance), and
no other event or condition materially and adversely affecting the proper- ties,
business, or prospects of seller-corporation shall have occurred.
The conditions contained in this Section are included in this agreement
for the benefit of buyer and, without constituting a waiver of any of its rights
under this agreement, may be waived, in whole or in part, by buyer.
SECTION NINE
CONDITIONS TO OBLIGATIONS OF SHAREHOLDER:
The obligations of seller-shareholder under this agreement are subject to the
fulfillment, on or before the closing date, of the following conditions:
(1) All representations and warranties of buyer contained in this agreement, and
in any certificate or other instrument delivered pursuant to the provisions of
this agreement, or in connection with the transactions contemplated by this
agreement, shall be true on the closing date with the same force and effect as
though the representations and warranties had been made on the closing date.
(2) Buyer shall have performed and complied with all the terms, covenants, and
conditions of this agreement to be performed or complied with by it on or before
the closing date.
The conditions contained in this Section are included for the benefit of
seller-shareholder and, without constituting a waiver of any of seller-
shareholder's rights under this agreement, may be waived, in whole or in part,
by seller-shareholder.
SECTION TEN
EXPENSES:
Each of the companies to this agreement shall bear the party's own expenses in
connection with the transactions contemplated by this agreement.
SECTION ELEVEN
BROKERS:
Seller-shareholder agrees to indemnify buyer from any claim for compensation by
any person, firm, or corporation claiming to have been requested, authorized, or
employed by seller-corporation or seller-shareholder, or either of them, to act
as finder, broker, or agent in connection with the subject matter of this
agreement or negotiations leading to the agreement.
Buyer agrees to indemnify seller-shareholder from any claim for compensation by
any person, firm, or corporation claiming to have been requested, authorized, or
employed by it, to act as finder, broker, or agent in connection with the
subject matter of this agreement or negotiations leading to the agreement.
SECTION TWELVE
SURVIVAL OF WARRANTIES:
The warranties, representations, and covenants set forth in this agreement shall
continue in full force and effect and shall survive the closing.
SECTION THIRTEEN
NOTICES:
Any notice or other communication or payment required or permitted to be given
or made under this agreement shall be deemed to be properly given or made if
deposited in the United States mail, registered and postage prepaid, return
receipt requested, addressed to seller-corporation and seller-shareholder at
00000 Xxxxx Xxxx, Xxxxxxx, XX 00000, or to buyer at Xxx Xxx Xxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000; X.X. Xxx 000, Xxxxxxxxxx, XX 00000.
SECTION FOURTEEN
CHOICE OF LAW:
This agreement shall be construed according to the laws of the State of Texas.
IN WITNESS WHEREOF, the parties have executed this agreement at _______________,
_________________________________ on the date first above written.
WITNESSES: SELLER: Nextgen Communications Corporation
BY:
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BUYER: Point to Point of Louisiana, Inc.
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BY:
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