EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
May 11, 2004 (4:27PM)
AGREEMENT, dated as of May 6, 2004 among Corridor Communication
Corporation, an Oregon corporation with offices at 000 Xxxxxxx Xxxxxx, Xxxxx,
Xxxxxx 00000 ("Seller"), and Corridor Communications Corp., a Delaware
corporation with offices at 0000 Xxxx Xxx., Xxx. 000, Xxxxxxxx Xxxx, Xxxxxxxxxx
00000 ("Purchaser").
RECITALS
A. Seller is engaged in the business of providing products and services
relating to wireless Internet capabilities.
B. Purchaser desires to acquire certain assets from Seller.
C. Seller desires to sell the same to Purchaser.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements herein set forth, the parties hereto hereby
agree as follows:
1. SALE OF ASSETS. Subject to the terms and conditions of this Agreement, at the
closing under this Agreement (the "Closing"), Seller shall sell, convey, assign,
transfer and deliver to Purchaser, and Purchaser shall purchase, acquire and
accept from Seller all right, title, and interest in and to all of Seller's
assets, patents and properties used in, useful to and/or relating to the
Business, which shall include (but not be limited to) the following (the
"Assets"):
1.1 Equipment. The items of office equipment and fixtures owned by
Seller and listed on Schedule 1.1 (the "Equipment").
1.2 Intellectual Property. The domain names and Internet websites owned
by Seller and listed on Schedule 1.2 (the "Intellectual Property").
1.3 Records. All business and financial records, books, ledgers, files,
plans, documents, correspondence, specifications, creative
materials, advertising and promotional materials, marketing
materials, conference materials, database materials, supplier lists,
equipment repair, maintenance or service records, and all other
printed or written materials whether written or electronically
stored or otherwise recorded.
It is expressly understood that Purchaser shall not assume, pay or be liable for
any liability or obligation of Seller of any kind or nature at any time existing
or asserted, whether, known, unknown, fixed, contingent or otherwise, not
specifically assumed herein by Purchaser.
2. PURCHASE CONSIDERATION. In consideration of the purchase and sale of the
Assets, Purchaser shall issue to Seller TWELVE MILLION (12,000,000) shares of
common stock of Purchaser (the "Purchase Consideration") at the Closing.
3. CLOSING.
3.1 Place and Time. The Closing shall take place at the offices of
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, 1065 Avenue of the Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. on May 6, 2004, or at such other time or
place as Purchaser and Seller may mutually agree as may be evidenced by their
effecting the Closing (the "Closing Date").
3.2 Deliveries by Seller. At the Closing, Seller shall deliver the
following to the Purchaser:
(a) All of the tangible Assets including without limitation all
books and records related thereto and/or the rights to take possession
thereof.
(b) Such deeds, bills of sale, assignments and other instruments of
conveyance and transfer, and such powers of attorney, as shall be
effective to vest in Purchaser title to or other interest in, and the
right to full custody and control of, the Assets, free and clear of all
liens, charges, encumbrances and security interests whatsoever including,
but not limited to, the Xxxx of Sale form annexed hereto as Exhibit
3.2(b).
(c) Seller Financial Statements pursuant to Section 4.4 hereof.
(d) All other documents, certificates, instruments or writings
reasonably required by Purchaser to be delivered by Seller at or prior to
the Closing pursuant to this Agreement.
3.3 Deliveries by Purchaser. At the Closing, Purchaser shall deliver the
following to the Seller:
(a) the Purchase Consideration in the form of a stock certificate in
the name of Seller for TWELVE MILLION (12,000,000) shares of Purchaser's
common stock.
(b) Purchaser Financial Statements pursuant to Section 5.4 hereof.
3.4 Proceedings. All proceedings which shall be taken and all documents
which shall be executed and delivered by the parties on the Closing Date shall
be deemed to have been taken and executed simultaneously, and no proceeding
shall be deemed taken nor any documents executed or delivered until all have
been taken, executed and delivered.
3.5 Conditions to Purchaser's Obligations. The obligations of Purchaser to
effect the Closing shall be subject to the satisfaction at or prior to the
Closing of the following conditions, any one or more of which may be waived by
Purchaser:
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(a) There shall not be in effect any injunction, order or decree of
a court of competent jurisdiction that prohibits or delays consummation of
any or all of the transactions contemplated in this Agreement nor shall
any proceeding seeking any of the foregoing have been commenced.
(b) The representations and warranties of Seller set forth in this
Agreement shall be true and correct in all material respects as of the
date of this Agreement and as of the Closing Date as though made at such
time.
(c) Seller shall have performed and complied in all material
respects with the agreements contained in this Agreement required to be
performed and complied with by it prior to or at the Closing.
(d) Purchaser shall have received a certificate to the effect set
forth in clauses (b) and (c) above signed by the Secretary of Seller.
3.6 Conditions to Seller's Obligations. The obligations of Seller to
effect the Closing shall be subject to the satisfaction at or prior to the
Closing of the following conditions, any one or more of which may be waived by
Seller:
(a) There shall not be in effect any injunction, order or decree of
a court of competent jurisdiction that prohibits or delays the
consummation of any or all of the transactions contemplated herein nor
shall any proceeding seeking any of the foregoing have been commenced.
(b) The representations and warranties of Purchaser set forth in
this Agreement shall be true and correct in all material respects as of
the date of this Agreement and as of the Closing Date as though made at
such time.
(c) Purchaser shall have performed and complied in all material
respects with the agreements contained in this Agreement required to be
performed and complied with by it prior to or at the Closing.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents and
warrants to Purchaser as follows:
4.1 Organization and Good Standing. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Oregon. Seller has full power and authority to own its properties and to carry
on its business as it is now being conducted. Seller is duly qualified to
transact business and is in good standing in each jurisdiction wherein the
nature of the business done or the property owned, leased or operated by it
requires such qualification, except where the failure to be so qualified would
not have a material adverse effect on the business, operations, properties,
prospects, liabilities, results of operations, assets or condition (financial or
otherwise) of Seller. True, correct and complete copies of Seller's certificate
of incorporation and bylaws and all amendments thereto have been delivered to
Purchaser. The minutes and records of the Seller that have been made available
to Purchaser and are true, correct and complete in all material respects.
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4.2 Corporate Authority, No Conflicts.
(a) Seller has the right, power, authority and capacity to execute
and deliver this Agreement and to perform its obligations under this
Agreement.
(b) Neither the execution, delivery or performance of this Agreement
by Seller nor the consummation by Seller of the transactions contemplated
hereby will, directly or indirectly (with or without notice or lapse of
time or both):
(i) contravene, conflict with or result in a violation or
breach of (A) any provision of the organizational documents of
Seller, (B) any resolution adopted by the Board of Directors, or any
committee thereof, or the owner of Seller, (C) any legal requirement
or any governmental order to which Seller or any of the properties
or assets owned or used by Seller may be subject, or (D) any
authorization, license or permit of any governmental authority,
including any private investigatory license or other similar
license, which is held by Seller or that otherwise relates to the
business of, or any of the assets owned or used by Seller;
(ii) result in a violation or breach of or constitute a
default, give rise to a right of termination, cancellation or
acceleration, create any entitlement to any payment or benefit or
require the consent or approval of or any notice to or filing with
any third party under any contract to which Seller is a party or to
which it or its properties or assets may be bound, or require the
consent or approval of or any notice to or filing with any
governmental authority to which the Seller or its properties or
assets may be subject; or
(iii) result in the imposition or creation of any encumbrance
upon or with respect to any of the properties or assets owned or
used by Seller.
4.3 Capitalization. All of the outstanding equity securities of Seller has
been duly authorized and validly issued and are fully paid and nonassessable.
4.4 Financial Statements.
(a) At Closing, Seller shall deliver to Purchaser an audited balance
sheet of Seller as at December 31, 2003, audited statements of profit and
loss, cash flows and shareholders' equity for the years ended December 31,
2002 and 2003 ("Seller Financial Statements").
(b) The Seller Financial Statements when delivered (i) shall have
been prepared from the books and records of Seller in accordance with
GAAP, (ii) fully reflect all liabilities and contingent liabilities of the
Seller required to be reflected therein on such basis as at the date
thereof, and (iii) fairly present in all material respects the
consolidated financial position of Seller as of the dates of the balance
sheets included in the Seller Financial Statements and the consolidated
results of its operations and cash flows for the periods indicated.
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4.5 No Undisclosed Liabilities. Seller has no material liabilities or
obligations of any nature (whether absolute, accrued, contingent, or otherwise)
except for liabilities or obligations which have previously been disclosed to
Purchaser and current liabilities incurred in the ordinary course of business,
which current liabilities are consistent with the representations and warranties
contained in this Agreement and will not, individually or in the aggregate, have
a material adverse change in the business, operations, properties, prospects,
liabilities, results of operations, assets or condition (financial or otherwise)
of Seller.
4.6 Taxes. Seller has properly and timely filed all federal, state and
local Tax returns and has paid all Taxes, assessments and penalties due and
payable. All such Tax returns were complete and correct in all respects as
filed, and no claims have been assessed with respect to such returns. The
provisions made for Taxes on the balance sheet of the Seller included in the
Seller Financial Statements and the Seller Interim Financial Statements are
sufficient in all respects for the payment of all Taxes whether disputed or not
that are due or are hereafter found to have been due with respect to the conduct
of the business of the Seller up to and through the date of such Seller
Financial Statements or Seller Interim Financial Statements, respectively. There
are no present, pending, or threatened audit, investigations, assessments or
disputes as to Taxes of any nature payable by the Seller, nor any Tax liens
whether existing or inchoate on any of the assets of the Seller, except for
current year Taxes not presently due and payable. The federal income Tax returns
of the Seller have never been audited. No IRS or foreign, state, county or local
Tax audit is currently in progress. The Seller has not waived the expiration of
the statute of limitations with respect to any Taxes. There are no outstanding
requests by the Seller for any extension of time within which to file any Tax
return or to pay Taxes shown to be due on any Tax return. Other than with
respect to the Seller, the Seller is not liable for Taxes of any other person or
entity or is currently under any contractual obligation to indemnify any person
or entity with respect to Taxes or is a party to any Tax sharing agreement or
any other agreement providing for payments by the Seller with respect to Taxes.
For purposes of this Agreement, the term "Tax" shall mean any United
States federal, national, state, provincial, local or other jurisdictional
income, gross receipts, property, sales, use, license, excise, franchise,
employment, payroll, estimated, alternative or add-on minimum, ad valorem,
transfer or excise tax, or any other tax, custom, duty, governmental fee or
other like assessment or charge imposed by any governmental authority, together
with any interest or penalty imposed thereon.
4.7 Compliance with Law; Governmental Authorizations. To the best of
Seller's knowledge, Seller is in compliance with all federal, state and local
laws, authorizations, licenses and permits of any governmental authority and all
governmental orders affecting the business, operations, properties or assets of
Seller, including federal, state and local: (i) Occupational Safety and Health
Laws; (ii) private investigatory and other similar laws; (iii) the Fair Credit
Reporting Act and similar state and local laws; and (iv) laws regarding or
relating to trespass or violation of privacy rights. Seller has not been charged
with violating, nor to the knowledge of Seller, threatened with a charge of
violating, nor, to the knowledge of Seller, is Seller under investigation with
respect to a possible violation of any provision of any federal, state or local
law relating to any of its respective businesses, operation, properties or
assets.
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4.8 Effect of Agreement. This Agreement has been duly executed and
delivered by Seller and constitutes, and such other agreements and instruments
to be executed by Seller pursuant hereto, when so duly executed and delivered,
will constitute, legal, valid and binding obligations of Seller, enforceable in
accordance with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws relating to or affecting the rights of creditors generally
and by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
4.9 Title to Assets. After giving effect to the transactions contemplated
by this Agreement, Purchaser will have good and valid title to all of the
Assets, free and clear of all, liens, encumbrances, restrictions, security
interests, mortgages, and claims (including any related to duty or customs),
except with respect to any of the foregoing which may be incurred by Purchaser.
4.10 Broker's Fees. Seller has not employed any broker or finder or
incurred any liability for any broker's or finder's fees or commissions in
connection with this Agreement or the transactions contemplated herein.
4.11 Relationship with Related Persons. No officer, director or employee
of Seller, nor any spouse or child of any of them or any affiliate of, or any
person associated with, any of them ("Seller Related Person"), has any interest
in any property or asset used in or pertaining to the business of Seller. No
Seller Related Person has owned or presently owns an equity interest or any
other financial or profit interest in a person that has (i) had business
dealings with Seller, or (ii) engaged in competition with Seller. No Seller
Related Person is a party to any contract with, or has any claim or right
against, Seller.
4.12 Equipment. Schedule 1.1 lists all of the Equipment.
4.13 Intellectual Property. Schedule 1.2 lists all of the Intellectual
Property.
4.14 Disclosure. No representation or warranty by Seller in this
Agreement, nor in any certificate, schedule or exhibit delivered or to be
delivered pursuant to this Agreement contains or will contain any untrue
statement of material fact, or omits or will omit to state a material fact
necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading.
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4.15 Accounts Receivable; Accounts Payable.
(a) All accounts receivable of the Seller that are reflected on the
Seller Financial Statements or on the accounts receivable ledgers of the
Seller (collectively, the "Seller Accounts Receivable") represent valid
obligations arising from sales actually made or services actually
performed in the ordinary course of business. All of the Seller Accounts
Receivable are or will be current and collectible at the full recorded
amount thereof, less any applicable reserves established in accordance
with GAAP, in the ordinary course of business without resort to
litigation, except for such Seller Accounts Receivable, the failure of
which to collect would not have a Material Adverse Effect.
(b) All accounts payable of the Seller that are reflected on the
Seller Financial Statements or on the accounts payable ledgers of the
Seller arose in the ordinary course of business. All material items which
are required by GAAP to be reflected as payables on the Seller Financial
Statements and in the books and records of the Seller are so reflected and
have been recorded in accordance with GAAP in a manner consistent with
past practice. There has been no adverse change since the date of the
Seller Financial Statements in the amount or delinquency of accounts
payable of the Seller and its Subsidiaries (either individually or in the
aggregate) which would have a Material Adverse Effect.
4.16 No Material Adverse Change. Since the date of the Seller Financial
Statements, there has not been any material adverse change in the business,
operations, properties, prospects, liabilities, results of operations, assets or
condition (financial or otherwise) of the Seller taken as a whole (a "Material
Adverse Change") and no event has occurred or circumstance exists that may
result in a Material Adverse Effect.
4.17 Books and Records. The books of account and other records of the
Seller and its Subsidiaries, all of which have been made available to Purchaser,
are true, correct and complete. The minute books of the Seller contain true,
correct and complete records of all meetings held of, and action taken by, the
equity holders, the Boards of Directors, and committees of the Boards of
Directors of the Seller. The books of the Seller are true, correct and complete.
At the Closing, all of those books and records will be in the possession of the
Seller.
4.18 Condition and Sufficiency of Assets. The buildings, vehicles,
furniture, fixtures and equipment and other personal property owned, held or
used by the Seller are structurally sound, are in good operating condition and
repair, and are adequate for the uses to which they are being put, and none of
such buildings, vehicles, furniture, fixtures or equipment or other personal
property is in need of maintenance or repairs except for ordinary, routine
maintenance and repairs that are not material in nature or cost. The buildings,
vehicles, furniture, fixtures and equipment or other personal property of the
Seller are sufficient for the continued conduct of its business after the
Closing in substantially the same manner as conducted prior to the Closing.
4.19 Legal Proceedings. There is no pending claim, action, investigation,
arbitration, litigation, suit or other proceeding ("Proceeding"):
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(a) that has been commenced by or against the Seller or that
otherwise relates to or may affect the business of, or any of the properties or
assets owned, held or used by, the Seller; or
(b) that challenges, or that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with, any of the transactions
contemplated hereby.
To the knowledge of the Seller, (A) no such Proceeding has been
threatened, and (B) no event has occurred or circumstance exists that may give
rise to or serve as a basis for the commencement of any such Proceeding.
4.20 Labor Relations.
(a) The Seller has satisfactory relationships with its employees.
(b) No condition or state of facts or circumstances exists which
could materially adversely affect the Seller's relations with its
employees, including, to the best of the Seller's knowledge, the
consummation of the transactions contemplated by this Agreement.
(c) The Seller is in compliance in all material respects with all
applicable laws respecting employment and employment practices, terms and
conditions of employment and wages and hours and none of them is engaged
in any unfair labor practice.
(d) No collective bargaining agreement with respect to the business
of the Seller is currently in effect or being negotiated. The Seller has
not encountered any labor union or collective bargaining organizing
activity with respect to its employees. Neither the Seller nor any of its
Subsidiaries has any obligation to negotiate any such collective
bargaining agreement, and, to the knowledge of the Seller, there is no
indication that the employees of the Seller or any of its Subsidiaries
desire to be covered by a collective bargaining agreement.
(e) There are no strikes, slowdowns, work stoppages or other labor
trouble pending or, to the knowledge of the Seller, threatened with
respect to the employees of the Seller or any of its Subsidiaries, nor has
any or the above occurred or, to the knowledge of the Seller, been
threatened.
4.21 Investment Representation. In connection with the receipt of the
Purchase Consideration, Seller hereby represents and warrants:
(a) No Registration. Seller understands that the Purchase
Consideration has not been and will not be, registered under the
Securities Act of 1933, as amended (the "Securities Act") and shall be
issued by reason of a specific exemption from the registration provisions
of the Securities Act, the availability of which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of
Seller's representations as expressed herein or otherwise made pursuant
hereto.
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(b) Investment Intent. Seller is acquiring the Purchase
Consideration for investment for its own account, not as a nominee or
agent, and not with the view to, or for resale in connection with, any
distribution thereof, and Seller has no present intention of selling,
granting any participation in, or otherwise distributing the same. Seller
further represents that it does not have any contract, undertaking,
agreement or arrangement with any person or entity to sell, transfer or
grant participation to such person or entity or to any third person or
entity with respect to the Purchase Consideration.
(c) Speculative Nature of Investment. Seller understands and
acknowledges that Purchaser has limited financing and working capital and
that an investment in Purchaser is highly speculative and involves
substantial risks. Purchaser can bear the economic risk of acquiring and
holding the Purchase Consideration and is able, without impairing its
financial condition, to hold the Purchase Consideration for an indefinite
period of time and to suffer a complete loss on such Purchase
Consideration.
(d) Accredited Investor. Seller is an "accredited investor" within
the meaning of Regulation D, Rule 501(a), promulgated by the Securities
and Exchange Commission under the Securities Act and shall submit to
Corporation such further assurances of such status as may be reasonably
requested by the Corporation.
(e) Legends. Seller understands and agrees that the certificates
evidencing the Purchase Consideration shall bear the following legend (in
addition to any legend required under applicable state securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SUCH ACT AND/OR
APPLICABLE STATE SECURITIES LAWS, OR UNLESS THE COMPANY HAS RECEIVED
AN OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO
THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED."
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby represents and
warrants to Seller as follows:
5.1 Organization and Good Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Purchaser has full corporate power and authority to own its properties
and to carry on its business as it is now being conducted. Purchaser is duly
qualified to transact business and is in good standing in each jurisdiction
wherein the nature of the business done or the property owned, leased or
operated by it requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business, operations,
properties, prospects, liabilities, results of operations, assets or condition
(financial or otherwise) of Purchaser. True, correct and complete copies of the
certificate of incorporation and by-laws of Purchaser and all amendments thereto
have been delivered to Seller. The corporate minutes and corporate records of
Purchaser that have been made available to Seller and are true, correct and
complete in all material respects.
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5.2 Corporate Authority, No Conflicts.
(a) Purchaser has the right, power, authority and capacity to
execute and deliver this Agreement and to perform its obligations under
this Agreement.
(b) Neither the execution, delivery or performance of this Agreement
by Purchaser nor the consummation by Purchaser of the transactions
contemplated hereby will, directly or indirectly (with or without notice
or lapse of time or both):
(i) contravene, conflict with or result in a violation or
breach of (A) any provision of the organizational documents of
Purchaser, (B) any resolution adopted by the Board of Directors, or
any committee thereof, or the owner of Purchaser, (C) any legal
requirement or any governmental order to which Purchaser or any of
the properties or assets owned or used by Purchaser may be subject,
or (D) any authorization, license or permit of any governmental
authority, including any private investigatory license or other
similar license, which is held by Purchaser or that otherwise
relates to the business of, or any of the assets owned or used by
Purchaser;
(ii) result in a violation or breach of or constitute a
default, give rise to a right of termination, cancellation or
acceleration, create any entitlement to any payment or benefit or
require the consent or approval of or any notice to or filing with
any third party under any contract to which Purchaser is a party or
to which it or its properties or assets may be bound, or require the
consent or approval of or any notice to or filing with any
governmental authority to which the Purchaser or its properties or
assets may be subject; or
(iii) result in the imposition or creation of any encumbrance
upon or with respect to any of the properties or assets owned or
used by Purchaser.
5.3 Capitalization. The authorized equity securities of Purchaser consist
solely of 800,000,000 shares of common stock, par value $.0001 per share, of
which 249,410,865 shares are issued and outstanding, and 20,000,000 shares of
preferred stock, par value $.0001, of which none are issued and outstanding. All
of the outstanding equity securities of Purchaser have been duly authorized and
validly issued and are fully paid and nonassessable. There are no contracts
relating to the issuance, sale or transfer of any equity securities or other
securities of Purchaser, and there are not outstanding any options, warrants or
other securities exercisable or exchangeable for or convertible into any shares
of equity securities of Purchaser. None of the outstanding equity securities or
other securities of Purchaser that have been issued was issued in violation of
the Securities Act of 1933, as amended, or any other legal requirement. No
Person has any pre-emptive rights with respect to any security of Purchaser.
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5.4 Financial Statements.
(a) At Closing, Purchaser shall deliver to Seller an audited balance
sheet of Purchaser as at December 31, 2003, audited statements of profit
and loss for the years ended December 31, 2002 and 2003 ("Purchaser
Financial Statements").
(b) The Purchaser Financial Statements when delivered (i) shall have
been prepared from the books and records of Purchaser in accordance with
GAAP, (ii) fully reflect all liabilities and contingent liabilities of the
Purchaser required to be reflected therein on such basis as at the date
thereof, and (iii) fairly present in all material respects the
consolidated financial position of Purchaser as of the dates of the
balance sheets included in the Purchaser Financial Statements and the
consolidated results of its operations and cash flows for the periods
indicated.
5.5 No Undisclosed Liabilities. Purchaser has no material liabilities or
obligations of any nature (whether absolute, accrued, contingent, or otherwise)
except for liabilities or obligations reflected or reserved against in the
Financial Statements and the Interim Financial Statements and current
liabilities incurred in the ordinary course of business since the date of the
Interim Financial Statements, which current liabilities are consistent with the
representations and warranties contained in this Agreement and will not,
individually or in the aggregate, have a material adverse effect on the
business, operations, properties, prospects, liabilities, results of operations,
assets or condition (financial or otherwise) of Purchaser.
5.6 Taxes. Purchaser has properly and timely filed all federal, state and
local Tax returns and has paid all Taxes, assessments and penalties due and
payable. All such Tax returns were complete and correct in all respects as
filed, and no claims have been assessed with respect to such returns. The
provisions made for Taxes on the balance sheet of the Purchaser included in the
Purchaser Financial Statements and the Purchaser Interim Financial Statements
are sufficient in all respects for the payment of all Taxes whether disputed or
not that are due or are hereafter found to have been due with respect to the
conduct of the business of the Purchaser up to and through the date of such
Purchaser Financial Statements or Purchaser Interim Financial Statements,
respectively. There are no present, pending, or threatened audit,
investigations, assessments or disputes as to Taxes of any nature payable by the
Purchaser, nor any Tax liens whether existing or inchoate on any of the assets
of the Purchaser, except for current year Taxes not presently due and payable.
The federal income Tax returns of the Purchaser have never been audited. No IRS
or foreign, state, county or local Tax audit is currently in progress. The
Purchaser has not waived the expiration of the statute of limitations with
respect to any Taxes. There are no outstanding requests by the Purchaser for any
extension of time within which to file any Tax return or to pay Taxes shown to
be due on any Tax return. Other than with respect to the Purchaser, the
Purchaser is not liable for Taxes of any other person or entity or is currently
under any contractual obligation to indemnify any person or entity with respect
to Taxes or is a party to any Tax sharing agreement or any other agreement
providing for payments by the Purchaser with respect to Taxes.
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For purposes of this Agreement, the term "Tax" shall mean any United
States federal, national, state, provincial, local or other jurisdictional
income, gross receipts, property, sales, use, license, excise, franchise,
employment, payroll, estimated, alternative or add-on minimum, ad valorem,
transfer or excise tax, or any other tax, custom, duty, governmental fee or
other like assessment or charge imposed by any governmental authority, together
with any interest or penalty imposed thereon.
5.7 Effect of Agreement. This Agreement has been duly executed and
delivered by Purchaser and constitutes, and each other agreement, document or
instrument to be executed by Purchaser pursuant hereto, when so duly executed
and delivered, will constitute, legal, valid and binding obligations of
Purchaser, enforceable against Purchaser in accordance with their terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting the
rights of creditors generally and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
5.8 Knowledge. Purchaser's determination with respect to entering into
this Agreement was based solely on the knowledge of its officers and directors
and the representations and warranties made by Seller herein. Purchaser has not
relied on any representations or warranties of any Seller or any agent of any
Seller, whether implied or otherwise, other than those expressly made by Seller
in this Agreement, in making its determination to enter into and consummate this
Agreement.
5.9 Broker's Fees. Purchaser has not employed any broker or finder or
incurred any liability for any broker's or finder's fees or commissions in
connection with this Agreement or the transactions contemplated herein.
6. PRE-CLOSING COVENANTS.
6.1 Compliance with Conditions. The parties hereto shall use their best
efforts to cause the Closing to be consummated and to cause the execution and
delivery of the documents referred to in Section 3 hereof and to bring about the
satisfaction of the conditions to the obligations of the parties hereto set
forth in Sections 3.5 and 3.6, respectively, herein.
6.2 Update of Exhibits. From and after the date hereof and up to the
Closing Date, the parties hereto shall update the exhibits to this Agreement to
the extent necessary to make such exhibits true and accurate as of the Closing
Date and shall deliver copies of such updated exhibits to Purchaser or Seller,
as the case may be, immediately upon their preparation.
6.3 Consents. From and after the date hereof, the parties hereto shall use
their best efforts to obtain all of the certificates, authorizations, consents
or approvals required as set forth in Section 3 hereof. Evidence of such
certificates, authorizations, consents or approvals shall be delivered to
Purchaser or Seller, as the case may be, on or prior to the Closing.
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6.4 Business Practices. From and after the date hereof and up to the
Closing Date, Seller shall continue to run the business of Seller in a manner
consistent with past business practices including the satisfaction of all of its
then current obligations.
7. INDEMNIFICATIONS BY SELLER AND PURCHASER.
7.1 Indemnification by Seller. Seller shall indemnify and hold harmless
Purchaser and shall reimburse Purchaser for any loss, liability, claim, damage,
expense (including, without limitation, costs of investigation and defense and
reasonable attorney's fees) or diminution of value (collectively, "Damages")
arising from or in connection with:
(a) any inaccuracy in any of the representations and warranties of
Seller in this Agreement or in any certificate delivered by Seller
pursuant to this Agreement, or any actions, omissions or state of facts
inconsistent with any such representation or warranty (for purposes of
this clause (a), each schedule and exhibit to this Agreement shall be
deemed a representation and warranty);
(b) any failure by Seller to perform or comply with any agreement
made by it under this Agreement;
(c) any operations or business conducted, commitment made, service
rendered or condition existing or any action taken or omitted by or on
behalf of Seller, except for any claims for which Purchaser is required to
indemnify Seller pursuant to Section 7.2 herein;
(d) any claim by any person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or understanding
alleged to have been made by any such person with Seller (or any person
acting on its behalf) in connection with any of the transactions
contemplated herein; and
(e) Seller's failure to comply with the "Bulk Sales Laws" under the
Uniform Commercial Code;
provided, however, that (i) Seller shall have no obligation to indemnify
Purchaser for Damages until the aggregate Damages exceed $20,000 and, in such
event, for the full amount of such Damages, (ii) Seller' aggregate liability for
Damages shall in no event exceed the Purchase Consideration, and (iii) Seller
shall have no obligation to indemnify Purchaser for any claims made by Purchaser
under this Section 7.1 after eighteen (18) months after the Closing Date.
7.2 Indemnification by Purchaser. Purchaser shall indemnify and hold
harmless Seller, and shall reimburse Seller for any Damages arising from or in
connection with:
(a) any inaccuracy in any of the representations and warranties of
Purchaser in this Agreement or in any certificate delivered by Purchaser
pursuant to this Agreement, or any actions, omissions or state of facts
inconsistent with any such representation or warranty (for purposes of this
clause (a), each schedule and exhibit to this Agreement shall be deemed a
representation and warranty);
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(b) any failure by Purchaser to perform or comply with any agreement
made by it under this Agreement;
(c) any claim by any person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or understanding
alleged to have been made by such person with Purchaser (or any person acting on
its behalf, regardless of whether such person purported to act on behalf of
Seller) in connection with any of the transactions contemplated in this
Agreement; and
(d) obligations with respect to any product liability associated
with the Equipment for the period after the Closing Date;
provided, however, that (i) Purchaser shall have no obligation to indemnify
Seller for Damages until the aggregate Damages exceed $20,000 and, in such
event, for the full amount of such Damages, (ii) Purchaser's aggregate liability
for Damages shall in no event exceed the Purchase consideration, and (iii)
Purchaser shall have no obligation to indemnify Seller for any claims made by
any Seller under this Section 7.2 after eighteen (18) months after the Closing
Date.
7.3 Procedure for Indemnification. Promptly after receipt by an
indemnified party under Section 7.1 or 7.2 hereof of notice of the commencement
of any action or assertion of any claim, such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party under such
Section, give notice to the indemnifying party of the commencement or assertion
thereof, but the failure so to notify the indemnifying party shall not relieve
it of any liability that it may have to any indemnified party except to the
extent the indemnifying party demonstrates that the defense of such action is
materially prejudiced thereby. If any such action shall be brought against an
indemnified party and it shall give notice to the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof
with counsel satisfactory to such indemnified party and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such Section for any fees of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party in connection with the
defense thereof, other than reasonable costs of investigation. If an
indemnifying party assumes the defense of such an action:
(a) no compromise or settlement thereof may be effected by the
indemnifying party without the indemnified party's consent which shall not
be unreasonably withheld unless (i) there is no finding or admission of
any violation of law or any violation of the rights of any person and no
effect on any other claims that may be made against the indemnified party
and (ii) the sole relief provided is monetary damages that are paid in
full by the indemnifying party; and
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(b) the indemnifying party shall have no liability with respect to
any compromise or settlement thereof effected without its consent. If
notice is given to an indemnifying party of the commencement of any action
and it does not, within ten (10) business days after the indemnified
party's notice is given, give notice to the indemnified party of its
election to assume the defense thereof, the indemnifying party shall be
bound by any determination made in such action or any compromise or
settlement thereof effected by the indemnified party. Notwithstanding the
foregoing, if an indemnified party determines in good faith that there is
a reasonable probability that an action may materially and adversely
affect it or its affiliates other than as a result of monetary damages,
such indemnified party may, by notice to the indemnifying party, assume
the exclusive right to defend, compromise or settle such action at its
cost or expense, but the indemnifying party shall not be bound by any
determination of an action so defended or any compromise or settlement
thereof effected without its consent (which shall not be unreasonably
withheld).
8. MISCELLANEOUS.
8.1 Bulk Sales Laws: The parties hereto hereby agree to waive compliance
with "Bulk Sales Laws" under the Uniform Commercial Code and the related notice
provisions thereof.
8.2 Survival. All representations, warranties and agreements contained in
this Agreement or in any certificate delivered pursuant to this Agreement shall
survive eighteen (18) months after Closing.
8.3 Waivers and Amendments.
(a) This Agreement may be amended, modified or supplemented only by
a written instrument executed by the parties hereto. The provisions of
this Agreement may be waived only by an instrument in writing executed by
the party granting the waiver. No action taken pursuant to this Agreement,
including without limitation, any investigation by or on behalf of any
party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any representation, warranty, covenant or
agreement contained herein. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a
further or continuing waiver of such breach or as a waiver of any other or
subsequent breach.
(b) No failure on the part of any party to exercise, and no delay in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or
remedy by such party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law.
8.4 Fees and Expenses. Each party shall be responsible for its respective
fees and expenses incurred in connection with this transaction.
15
8.5 Notices. All notices, requests, demands and other communications that
are required or may be given under this Agreement shall be in writing and shall
be deemed to have been duly given or made: if by hand, immediately upon
delivery; if by telex, telecopier, telegram or similar electronic device,
immediately upon sending, provided it is sent on a business day, but if not,
then immediately upon the beginning of the first business day after being sent;
if by Federal Express, Express Mail or any other overnight delivery service, on
the first business day after dispatch; if by registered or certified mail,
return receipt requested, upon receipt by the addressee. All notices, requests
and demands are to be given or made to the parties at the following addresses
(or to such other address as either party may designate by notice in accordance
with the provisions of this paragraph):
IF TO SELLER: Corridor Communication Corporation
000 Xxxxxxx Xxxxxx
Xxxxx, Xxxxxx 00000
Telephone:
Facsimile:
WITH A COPY TO: __________________
__________________
__________________
__________________
IF TO PURCHASER: Corridor Communications Corp.
00 Xxxx Xxx., Xxx. 000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile:
WITH A COPY TO: Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
1065 Avenue of the Americas, 21st Floor
Attn: Xxxxxxx Xxxxxxxxx, Esq.
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
8.6 Entire Agreement. This Agreement and the schedules and exhibits hereto
set forth the entire agreement and understanding between the parties hereto with
respect to the subject matter hereof and supersede any prior negotiations,
agreements, letters of intent, understandings or arrangements between the
parties hereto with respect to the subject matter hereof.
8.7 Binding Effect, Benefits, Construction. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto, or their respective
successors, any rights, remedies, obligations or liabilities under or by reason
of this Agreement.
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8.8 Non-Assignability. This Agreement and any rights pursuant hereto shall
not be assignable by any party hereto without the prior written consent of the
other party.
8.9 Applicable Law, Venue, Jurisdiction. This Agreement and the legal
relations between the parties hereto shall be governed by and construed in
accordance with the laws of the State of California, applicable to contracts
made and to be enforced in such state. Each of the parties hereto hereby
consents to the personal jurisdiction of the courts of the State of California
and the federal courts situated therein over any judicial proceeding under or
which may otherwise arise out of this Agreement or any other agreement or
instrument entered into in connection herewith and agree not to contest venue
for any such proceeding commenced in the courts of the State of California or in
the United States District Courts located in the State of California.
8.10 Section and Other Headings. The section and other headings contained
in this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
8.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
signed by their duly authorized respective officers all as of the date first
written above.
SELLER: CORRIDOR COMMUNICATION CORPORATION
AN OREGON CORPORATION
By:_____________________________________
Name:
Title:
PURCHASER: CORRIDOR COMMUNICATIONS CORP.
A DELAWARE CORPORATION
By:_____________________________________
Name:
Title:
17
SCHEDULE 1.1
EQUIPMENT
Stayton transmission site:
Router / Access Point
Backup Power Supply
00x XXXXX
0XXXX XXXXXXXXX
15 db Omni Antenna
Scientific Atlanta Rack
Super Micro Server
HP 7915 Computer
HP 8766 Computer
Toshiba Portege' Lap Top
Sony VIO Lap Top
HP laser Printer
Panasonic laser Printer
HP fax
Canon copier
Routers / networked and installation
2 Executive desk and credenzas
2 Executive leather chairs
Prospect Hill Salem Tower:
Router / access point-Salem
Router / access point- Dallas
Router/ access point- Xxxxxx East
Router/ access point-Omni
4-500ml amplifiers
3- 18db sector Antennas
15db Omni antenna
1000 feet LMR 400 cabling
Backup Power Supply
Routers networked and installation
Dallas Hybrid Site:
Motorola Canopy 5.7 GHz CPE
Router/ access point
12 db Omni antenna
Power Supply
Networked and installation
Field / lab and installed Inventory:
41 - Tranzeo CPE's
2 - Teletronics CPE's
1000 ft cat-5 cable
500 ft lmr 500 cable
Misc. fitting and connectors
Misc. tools and installation equipment
Scio Office and Warehouse:
1 - E-Machine computer
1 - Custom 1.5 GHz computer
2 - HP laser printers
3 - Executive desks, credenzas and chairs.
Misc. office furniture
Minolta 1080 copy machine
12 line telephone system
2 - Cirrilium 4 lineVOIP H.323 phone systems
2- 8X8 sip VOIP units
Nomadixs wireless HotSpot server
Teletronics HotSpot access point
FatPort HotSpot access Point
12-linksys wet-11 access point
4- linksys bridge
4- D-link bridge
4- D-link DWL120+ USB adapter
Misc. file cabinets
1-XXXX 70 foot Tower
2- 60 foot Treated power poles
20 - Misc. wireless 802.11 cards
6- 21db Xxxxxxx'x antennas
6- 19db Xxxxxxx'x antennas
6 - Misc. flat panel antennas
6 - Backup power supplies
1 - 2.0 megapixel HP digital camera
Other Assets
customer/subscriber lists,
subscriber contracts
outstanding accounts receivables
SCHEDULE 1.2
INTELLECTUAL PROPERTY
Domain Names and Internet Websites:
xxx.xxxxxxxxxxxx.xxx
xxx.xxxxxxxxxxxxxxx.xxx
xxx.xxxxxxxxxxxx.xxx
xxx.xxxxxxxxxxxxx.xxx
xxx.xxxxxxxx.xxx
xxx.xxxxxxxxxxxxxxxxxxxxx.xxx
EXHIBIT 3.2(B)
XXXX OF SALE
WHEREAS, Corridor Communication Corporation, an Oregon corporation
("Seller"), and Corridor Communications Corp., a Delaware corporation
("Purchaser"), have entered into an Asset Purchase Agreement, dated May __, 2004
(the "Agreement"), pursuant to which Seller has agreed to sell to Purchaser, and
Purchaser has agreed to purchase from Seller the "Assets" (as defined in the
Agreement);
NOW, THEREFORE, Seller, for good and valuable consideration paid to it,
and pursuant to the provisions of the Agreement, which are hereby incorporated
by reference herein, have granted, bargained, sold, conveyed, assigned,
released, transferred and delivered, and by these presents do grant, bargain,
sell, convey, assign, release, transfer and deliver unto Purchaser, its
successors and assigns, to have and hold the same forever, the Assets.
Seller, for itself and its successors and assigns, does hereby convey to
Purchaser good and marketable title to the Assets free and clear of all liens,
liabilities, claims and encumbrances, except as provided in the Agreement or as
may have been created by Purchaser, and do for its successors and assigns
covenant and agree to warrant and defend the sale of the Assets to Purchaser,
its successors and assigns, against all and every person.
No other warranty or representation, except as expressly made by Seller in
the Agreement or in this Xxxx of Sale, is made by Seller, nor shall any be
implied.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed by
its duly authorized officers this 6th day of May, 2004, to become effective on
the date hereof.
CORRIDOR COMMUNICATION CORPORATION
An Oregon Corporation
By:_____________________________________
Name:
Title:
CORRIDOR COMMUNICATION
A Delaware Corporation
By:_____________________________________
Name:
Title:
STATE OF ______________ )
) ss.:
COUNTY OF _____________ )
On the day of , 2004 before me personally came _____________, who, being
by me duly sworn, did depose and say that he resides at __________________; that
he is the __________ of ____________________; and that he signed his named
thereto by order of the Board of Directors of said corporation.
________________________________________
NOTARY PUBLIC
