EXHIBIT 2.12
STOCK PURCHASE AND DEBT SETTLEMENT AGREEMENT
This Stock Purchase and Debt Settlement Agreement (the "Agreement"), entered
into this 8th day of November 2001, is by, between, and among PayStar
Corporation, a Nevada corporation ("PayStar"); XxxXxxx.xxx, Inc., a Nevada
corporation ("XxxXxxx.xxx"); and NIBG, LLC, a Utah limited liability company
(the "Creditor").
RECITALS:
A. XxxXxxx.xxx owns and operates a number of Internet kiosks ("Internet
Kiosks") located throughout the United States.
B. XxxXxxx.xxx is a wholly owned subsidiary of PayStar.
C. PayStar owes Creditor approximately $383,278 in principal amounts
loaned to XxxXxxx.xxx, which amounts, together with any interest thereon, are
intended to be forgiven through this transaction.
D. Creditor is willing to forgive such indebtedness in exchange for
550,000 shares of restricted common stock of PayStar.
NOW, THEREFORE, based upon the stated premises, which are incorporated herein
by reference, and for and in consideration of the mutual covenants and
agreements set forth herein, the mutual benefits to the parties to be derived
herefrom, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
1.1 Common Stock shall mean the common stock, par value $.001, of PayStar.
1.2 Liability means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for taxes.
1.5 Person means an individual, a partnership, a corporation, an
association, a joint venture, a limited liability company or partnership, a
trust, a joint stock company, an unincorporated organization, or a
governmental entity (or any department, agency, or political subdivision
thereof).
1.6 Registerable Securities shall mean the Shares issued
pursuant to subsection 2.1 of this Agreement (i) in respect of which the
Registration Statement has not been declared effective by the SEC; (ii) which
have not been sold under circumstances under which all of the applicable
conditions of Rule 144 (or any similar provision then in force) under the
Securities Act are met; or (iii) which have not been otherwise transferred to
a holder who may trade such shares without restriction under the Securities
Act, and the Company has delivered a new certificate or other evidence of
ownership for such securities not bearing a restrictive legend.
1.7 Registration Rights Agreement shall mean the agreement
regarding the filing of the Registration Statement for the resale of the
Registerable Securities, entered into between PayStar and the Creditor on the
closing date and annexed hereto as Exhibit "A."
1.8 Registration Statement shall mean a registration statement
on Form SB-2 (if use of such form is then available to PayStar pursuant to the
rules of the SEC and, if not, on such other form promulgated by the SEC for
which PayStar then qualifies and which counsel for PayStar shall deem
appropriate, and which form shall be available for the distribution and resale
of the Registerable Securities to be registered thereunder in accordance with
the provisions of this Agreement and the Registration Rights Agreement, and in
accordance with the intended method of distribution of such securities), for
the registration of the resale by Creditor of the Registerable Securities
under the Securities Act.
1.9 SEC shall mean the Securities and Exchange Commission.
1.10 Shares mean the 550,000 shares of Common Stock to be issued
to Creditor pursuant to subsection 2.1 hereof.
2. Stock Purchase Transaction.
2.1 Issuance of Shares. On and subject to the terms and conditions of
this Agreement, PayStar shall issue the 550,000 Shares to the Creditor at
closing.
2.2 Registration Rights. Contemporaneous with the closing,
PayStar and the Creditor shall enter into the Registration Rights Agreement
for the filing of a Registration Statement for the resale of the Registerable
Securities.
2.3 Debt Forgiveness. In consideration for the receipt of the Shares,
Creditor shall forgive all principal and interest owed by XxxXxxx.xxx, or
PayStar, to the Creditor in the principal amount of $383,278 and evidenced by
one or more promissory notes (hereinafter the "Notes"). At closing Creditor
shall deliver the original Notes to PayStar marked "cancelled."
2.4 Effective Closing Date. The effective closing date of this
Agreement shall be September 30, 2001.
3. Representations and Warranties of PayStar. PayStar represents and
warrants to Creditor as set forth below. These representations and warranties
are made as an inducement for Creditor to enter into this Agreement and, but
for the making of such representations and warranties and their accuracy,
Creditor would not be a party hereto or thereto.
3.1 Organization and Good Standing. PayStar is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Nevada with full power and authority to enter into and perform the
transactions contemplated by this Agreement.
3.2 Performance of This Agreement. The execution and performance of this
Agreement and the Registration Rights Agreement, and the transaction
contemplated hereby and thereby have been authorized by the board of directors
of PayStar.
3.3 Legality of Securities to be Issued. The Shares to be issued pursuant
to this Agreement, when so issued and delivered, will have been duly and
validly authorized and issued by PayStar and will be fully paid and
nonassessable.
3.4 Accuracy of All Statements Made by PayStar. No
representation or warranty by PayStar in this Agreement, nor any statement,
certificate, schedule, or exhibit hereto furnished or to be furnished by
PayStar pursuant to this Agreement, nor any document or certificate delivered
to Creditor pursuant to this Agreement or in connection with actions
contemplated hereby, contains or shall contain any untrue statement of
material fact or omits to state or shall omit to state a material fact
necessary to make the statement contained therein not misleading.
4. Representations and Warranties of XxxXxxx.xxx. XxxXxxx.xxx represents
and warrants to Creditor as set forth below. These representations and
warranties are made as an inducement for Creditor to enter into this Agreement
and, but for the making of such representations and warranties and their
accuracy, Creditor would not be parties hereto or thereto.
4.1 Organization and Authority. XxxXxxx.xxx is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Nevada with full power and authority to enter into and perform the
transactions contemplated by this Agreement.
4.2 Performance of This Agreement. The execution and
performance of this Agreement and the Registration Rights Agreement, and the
transaction contemplated hereby and thereby have been authorized by the board
of directors of XxxXxxx.xxx.
4.3 Accuracy of All Statements Made by XxxXxxx.xxx. No
representation or warranty by XxxXxxx.xxx in this Agreement, nor any
statement, certificate, schedule, or exhibit hereto furnished or to be
furnished by or on behalf of XxxXxxx.xxx pursuant to this Agreement, nor any
document or certificate delivered to Creditor by XxxXxxx.xxx pursuant to this
Agreement or in connection with actions contemplated hereby, contains or shall
contain any untrue statement of material fact or omits or shall omit a
material fact necessary to make the statement contained therein not
misleading.
5. Representations and Warranties of Creditor. Creditor represents and
warrants to PayStar and XxxXxxx.xxx as set forth below. These representations
and warranties are made as an inducement for PayStar and XxxXxxx.xxx to enter
into this Agreement, and, but for the making of such representations and
warranties and their accuracy, neither PayStar nor XxxXxxx.xxx would be a
party hereto.
5.1 Organization and Good Standing. Creditor is a limited liability
company duly organized, validly existing and in good standing under the laws
of the State of Utah with full power and authority to enter into and perform
the transactions contemplated by this Agreement.
5.2 Performance of This Agreement. The execution and performance of this
Agreement, and the transaction contemplated hereby have been authorized by the
managing body of Creditor.
5.3 Notes. The Notes represent valid obligations of amounts owed by
XxxXxxx.xxx to Creditor. Creditor is the sole owner of the Notes and has not,
in whole or in part, directly or indirectly, assigned, pledged, hypothecated,
or otherwise encumbered the Notes, or any interest therein.
5.4 Accuracy of All Statements Made by Creditor. No representation
or warranty by Creditor to PayStar or XxxXxxx.xxx in this Agreement, nor any
statement, certificate, schedule, or exhibit hereto furnished or to be
furnished by Creditor to PayStar or XxxXxxx.xxx pursuant to this Agreement,
nor any document or certificate delivered to PayStar or XxxXxxx.xxx pursuant
to this Agreement or in connection with actions contemplated hereby, contains
or shall contain any untrue statement of material fact or omits to state or
shall omit to state a material fact necessary to make the statement contained
therein not misleading.
6. Covenants of the Parties.
6.1 No Covenant as to Tax or Accounting Consequences. It is expressly
understood and agreed that neither PayStar or XxxXxxx.xxx, nor their officers,
agents, accountants, or legal counsel has made any warranty or agreement,
expressed or implied, as to the tax or accounting consequences of the
transactions contemplated by this Agreement or the tax or accounting
consequences of any action pursuant to or growing out of this Agreement.
6.2 Indemnification. PayStar and XxxXxxx.xxx, jointly and severally,
shall indemnify Creditor for any loss, cost, expense, or other damage
(including, without limitation, attorneys' fees and expenses) suffered by
Creditor resulting from, arising out of, or incurred with respect to, or
alleged to result from, arise out of or have been incurred with respect to,
the falsity or the breach of any representation, warranty, or covenant made by
PayStar or XxxXxxx.xxx herein. Creditor shall indemnify and hold PayStar and
XxxXxxx.xxx, jointly and severally, harmless from and against any loss, cost,
expense, or other damage (including, without limitation, attorneys' fees and
expenses) resulting from, arising out of, or incurred with respect to, or
alleged to result from, arise out of or have been incurred with respect to,
the falsity or the breach of any representation, covenant, warranty, or
agreement made by Creditor herein, and any claims arising from the operations
of Creditor prior to the closing date. The indemnity agreement contained
herein shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any party, for a period of one year from
the closing date of this Agreement.
6.3 Publicity. The parties agree that no publicity, release, or other
public announcement concerning this Agreement or the transactions contemplated
by this Agreement shall be issued by any party hereto without the advance
approval of both the form and substance of the same by the other parties and
their counsel, which approval, in the case of any publicity, release, or other
public announcement required by applicable law, shall not be unreasonably
withheld or delayed.
6.4 Expenses. Each party to this Agreement shall bear its own respective
expenses incurred in connection with the negotiation and preparation of this
Agreement, in the consummation of the transactions contemplated hereby, and in
connection with all duties and obligations required to be performed by each of
them under this Agreement.
6.5 No Finder's Fees. No broker, finder, or similar agent has been
employed by or on behalf of any party hereto in connection with this Agreement
or the transactions contemplated hereby, and such parties have not entered
into any agreement or understanding of any kind with any Person for the
payment of, and shall not be required to pay, any brokerage commission, finder's
fee, or any similar compensation in connection with this Agreement or the
transactions contemplated hereby.
6.6 Further Actions. Each of the parties hereto shall take all such
further action, and execute and deliver such further documents, as may be
necessary to carry out the transactions contemplated by this Agreement.
7. Conditions Precedent to Creditor's Obligations. Each and every
obligation of Creditor to be performed on the closing date shall be subject to
the satisfaction prior thereto of the following conditions:
7.1 Truth of Representations and Warranties. The representations and
warranties made PayStar and XxxXxxx.xxx in this Agreement or given on their
behalf hereunder shall be substantially accurate in all material respects on
and as of the closing date with the same effect as though such representations
and warranties had been made or given on and as of the closing date.
7.2 Performance of Obligations and Covenants. PayStar and XxxXxxx.xxx
shall have performed and complied with all obligations and covenants required
by this Agreement to be performed or complied with by them prior to or at the closing.
7.3 Officer's Certificate. Creditor shall have been furnished with a
certificate (dated as of the closing date and in form and substance reasonably
satisfactory to Creditor), executed by the respective presidents or chairmen
of PayStar and XxxXxxx.xxx, certifying to the fulfillment of the conditions
specified in subsections 7.1 and 7.2 hereof.
7.4 No Litigation or Proceedings. There shall be no litigation or any
proceeding by or before any governmental agency or instrumentality pending or
threatened against any party hereto that seeks to restrain or enjoin or
otherwise questions the legality or validity of the transactions contemplated
by this Agreement or which seeks substantial damages in respect thereof.
8. Conditions Precedent to Obligations of PayStar and XxxXxxx.xxx. Each
and every obligation of PayStar and XxxXxxx.xxx to be performed on the closing
date shall be subject to the satisfaction prior thereto of the following conditions:
8.1 Truth of Representations and Warranties. The representations and
warranties made by Creditor in this Agreement or given on its behalf hereunder
shall be substantially accurate in all material respects on and as of the
closing date with the same effect as though such representations and
warranties had been made or given on and as of the closing date.
8.2 Performance of Obligations and Covenants. Creditor shall have
performed and complied with all obligations and covenants required by this
Agreement to be performed or complied with by it prior to or at the closing.
8.3 Officer's Certificates. PayStar and XxxXxxx.xxx shall have been
furnished with a certificate (dated as of the closing date and in form and
substance reasonably satisfactory to PayStar and XxxXxxx.xxx), executed by an
executive officer of Creditor, certifying to the fulfillment of the conditions
specified in subsections 8.1 and 8.2 hereof.
8.4 No Litigation or Proceedings. There shall be no litigation or any
proceeding by or before any governmental agency or instrumentality pending or
threatened against any party hereto that seeks to restrain or enjoin or
otherwise questions the legality or validity of the transactions contemplated
by this Agreement or which seeks substantial damages in respect thereof.
9. Securities Law Provisions. At closing Creditor shall deliver to
PayStar a subscription agreement, as provided by PayStar, containing
appropriate representations concerning the restricted nature of the securities
to be issued to it, the non-distributive intent of the recipient of the
securities, and other provisions to reasonably satisfy the non-public,
unregistered nature of the transaction.
10. Closing.
10.1 Time and Place. The closing of this transaction ("closing") shall
take place at the offices of PayStar, 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 00,
Xxxx, XX 00000, at 11:30 a.m., November 8, 2001, or at such other time and
place as the parties hereto shall agree upon. Such date is referred to in
this Agreement as the "closing date."
10.2 Documents To Be Delivered by XxxXxxx.xxx. At the closing
XxxXxxx.xxx shall deliver to Creditor the following documents:
a. The certificate required pursuant to subsection 7.3 hereof.
b. Such other documents of transfer, certificates of
authority, and other documents as Creditor may reasonably request.
10.3 Documents To Be Delivered by PayStar. At the closing PayStar shall
deliver to Creditor the following documents:
a. A stock certificate representing the Shares issued in the name of the Creditor.
b. The Registration Rights Agreement executed by PayStar.
c. The certificate required pursuant to subsection 7.3 hereof.
d. Such other documents of transfer, certificates of authority, and other
documents as Seller may reasonably request.
10.4 Documents To Be Delivered by Creditor. At closing the
Creditor shall deliver to PayStar and XxxXxxx.xxx, as applicable, the
following documents:
a. The cancelled Notes as required pursuant to subsection 2.5 hereof.
b. The Registration Rights Agreement executed by the Creditor.
c. The certificate required pursuant to subsection 8.3 hereof.
d. The subscription agreement required pursuant to Section 9 hereof.
e. Such other documents as PayStar or XxxXxxx.xxx may reasonably request.
11. Termination. This Agreement may be terminated by PayStar and
XxxXxxx.xxx on the one hand, or by the Creditor on the other, by notice to the
others if, (i) at any time prior to the closing date any event shall have
occurred or any state of facts shall exist that renders any of the conditions
to its or their obligations to consummate the transactions contemplated by
this Agreement incapable of fulfillment, or (ii) on November 30, 2001, if the
closing shall not have occurred. Following termination of this Agreement no
party shall have liability to another party relating to such termination,
other than any liability resulting from the breach of this Agreement by a
party prior to the date of termination.
12. Miscellaneous.
12.1 Notices. All communications provided for herein shall be in writing
and shall be deemed to be given or made when served personally or when
deposited in the United States mail, certified return receipt requested,
addressed as follows, or at such other address as shall be designated by any
party hereto in written notice to the other party hereto delivered pursuant to
this subsection:
PayStar or XxxXxxx.xxx: Xxxxx X. Xxxxxx, CFO
0000 Xxxx Xxxxxxxxx Xxxx Xxxxx 00
Xxxx, XX 00000
with copy to: Xxxxxx X. Xxxxx
Attorney at Law
00 Xxxx 000 Xxxxx Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Creditor: 000 Xxxxxxxx Xxxxx
Xxxxx x'Xxxxx, XX 00000
12.2 Default. Should any party to this Agreement default in any of the
covenants, conditions, or promises contained herein, the defaulting party
shall pay all costs and expenses, including a reasonable attorney's fee, which
may arise or accrue from enforcing this Agreement, or in pursuing any remedy
provided hereunder or by statute.
12.3 Assignment. This Agreement may not be assigned in whole or in part
by the parties hereto without the prior written consent of the other party or
parties, which consent shall not be unreasonably withheld.
12.4 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, their heirs, executors,
administrators, successors and assigns.
12.5 Partial Invalidity. If any term, covenant, condition, or provision
of this Agreement or the application thereof to any person or circumstance
shall to any extent be invalid or unenforceable, the remainder of this
Agreement or application of such term or provision to persons or circumstances
other than those as to which it is held to be invalid or unenforceable shall
not be affected thereby and each term, covenant, condition, or provision of
this Agreement shall be valid and shall be enforceable to the fullest extent
permitted by law.
12.6 Entire Agreement. This Agreement constitutes the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all negotiations, representations, prior discussions,
and preliminary agreements between the parties hereto relating to the subject
matter of this Agreement.
12.7 Interpretation of Agreement. This Agreement shall be interpreted and
construed as if equally drafted by all parties hereto.
12.8 Survival of Covenants, Etc. All covenants, representations, and
warranties made herein to any party, or in any statement or document delivered
to any party hereto, shall survive the making of this Agreement and shall
remain in full force and effect until the obligations of such party hereunder
have been fully satisfied.
12.9 Amendment. This Agreement or any provision hereof may not be
changed, waived, terminated, or discharged except by means of a written
supplemental instrument signed by the party or parties against whom
enforcement of the change, waiver, termination, or discharge is sought.
12.10 Full Knowledge. By their signatures, the parties acknowledge that
they have carefully read and fully understand the terms and conditions of this
Agreement, that each party has had the benefit of counsel, or has been advised
to obtain counsel, and that each party has freely agreed to be bound by the
terms and conditions of this Agreement. If Creditor has refused the benefit
of counsel, it understands and acknowledges that neither it nor any officer,
director, or affiliate has not been represented in this transaction, directly
or indirectly, by counsel for PayStar or XxxXxxx.xxx.
12.11 Headings. The descriptive headings of the various sections or parts
of this Agreement are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
12.12 Counterparts. This Agreement may be executed in two or more
partially or fully executed counterparts, each of which shall be deemed an
original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument.
12.13 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
regard to conflict of law principles and will be binding upon and shall inure
to the benefit of the parties and their successors and assigns.
12.14 Exhibits. As set forth in this Agreement, there is attached
hereto, or delivered herewith, the following Exhibit, which is incorporated
herein by this reference and expressly made a part hereof.
Exhibit Description
"A" Registration Rights Agreement
IN WITNESS WHEREOF, the parties hereto executed the foregoing Stock Purchase
and Debt Settlement Agreement the day and year first above written.
PAYSTAR: PayStar Corporation
By
/s/ Xxxxxxx X. Xxxxx, CEO
XXXXXXX.XXX: XxxXxxx.xxx, Inc.
By
/s/ Xxx XxXxxx, President
CREDITOR: NIBG, LLC
By
/s/ Xxxxxxx Xxxxxx, Managing Member
