EXHIBIT 2.2
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement"), entered
into this 30th day of September, 1999, is by, between, and among PayStar
Communications Corporation., a publicly held Nevada corporation (hereinafter
the "Purchaser"), U.S. Cash Exchange, Inc., a privately held California
corporation (hereinafter the "Private Company"), and the shareholders of the
Private Company whose names and signatures are set forth upon the signature
page of this Agreement (the "Shareholders"),
RECITALS:
WHEREAS, the Purchaser wishes to acquire, and the Shareholders are
willing to sell, all of the outstanding stock of the Private Company in
exchange solely for a part of the voting stock of the Purchaser whereby the
Shareholders would acquire a controlling interest of the Purchaser; and
WHEREAS, the parties hereto intend to qualify such transaction as a
tax-free exchange pursuant to Section 368(a)(1)(B) of the Internal Revenue
Code of 1986, as amended;
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 Purchaser, the Private Company, and the
Shareholders approve and adopt this Agreement and Plan of Reorganization and
mutually covenant and agree with each other as follows:
1. Shares to be transferred and Shares to be Issued
1.1 On the Closing Date the Shareholders shall transfer to the
Purchaser certificates for the number of shares of the common stock of the
Private Company described in Schedule "A", attached hereto and incorporated
herein, which in the aggregate shall represent all of the issued and
outstanding shares of the common stock of the Private Company.
1.2 In exchange for the transfer of the common stock of the
Private Company pursuant to subsection 1.1. hereof, the Purchaser shall on
the Closing Date and contemporaneously with such transfer of the common stock
of the Private Company to it by the Shareholders issue and deliver to the
Shareholders the number of shares of common stock of the Purchaser specified
on Schedule "A" hereof,
2. Representations and Warranties of the Shareholders. Each of the
Shareholders, for himself, herself, or itself, and not for any other
Shareholder, represents and warrants to the Purchaser as set forth below.
These representations and warranties are made as an inducement for the
Purchaser to enter into this Agreement and, but for the making of such
representations and Warranties and their accuracy, the Purchaser would not be
a party hereto.
2.1 Ownership of Stock
a. Each of the Shareholders is the record and beneficial
owner and holder of the number of fully paid and nonassessable shares of the
common stock of the Private Company listed in Schedule "A" hereto as of the
date hereof and will continue to own such shares of the common stock of the
Private Company until the delivery thereof to the Purchaser on the Closing
Date and all such shares of common stock are or will be on the Closing Date
owned free and clear of all liens, encumbrances, charges and assessments of
every nature and subject to no restrictions with respect to transferability.
Each of the Shareholders currently has, and will have at Closing, full power
and authority to dispose, assign, and transfer his, her, or its shares of the
Private Company in accordance with the terms hereof. Each of the
Shareholders currently has, and will have at Closing, full power and
authority to vote his, her, or its shares of the Private Company, without
restriction of any kind.
b. Except for this Agreement there are no outstanding
options, contracts, calls, commitments, agreements or demands of any
character relating to the common stock of the Private Company listed in
Schedule "A" and owned by each of the Shareholders.
2.2 Accuracy of All Statements Made by the Shareholders. No
representation or warranty by the Shareholders in this Agreement, nor any
statement, certificate, schedule, or exhibit hereto furnished or to be
furnished by or on behalf of the Shareholders pursuant to this Agreement, nor
any document or certificate delivered to the Purchaser by the Shareholders
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 statements contained therein
not misleading.
3. Representations and Warranties of the Private Company. The
Private Company represents and warrants to the Purchaser as set forth below.
These representations and warranties are made as an inducement for the
Purchaser to enter into this Agreement and, but for the making of such
representations and warranties and their accuracy, the Purchaser would not be
a party hereto.
3.1 Organization and Authority. The Private Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of California with full power and authority to enter into
and perform the transactions contemplated by this Agreement.
3.2 Capitalization. As of the date of the Closing, the Private
Company will have a total of no more than Two Thousand five hundred (2,500)
shares of common stock issued and outstanding. All of the shares will have
been duly authorized and validly issued and will be fully paid and
nonassessable. There are no options, warrants, conversion privileges, or
other rights presently outstanding for the purchase of any authorized but
unissued stock of the Private Company,
3.3 Performance of This Agreement. The execution and
performance of this Agreement and the transfer of stock contemplated hereby
have been authorized by the board of directors of the Private Company.
3.4 Financials. True copies of the financial statements of the
Private Company for the period ended September 30, 1999, (unaudited) have
been furnished to the Purchaser. Said financial statements are true and
correct in all material respects and present an accurate and complete
disclosure of the financial condition of the Private Company as of September
30, 1999, and the earnings for the periods covered, in accordance with
generally accepted accounting principles applied on a consistent basis.
3.5 Liabilities. There are no material liabilities of the
Private Company, whether accrued, absolute, contingent or otherwise, which
arose or relate to any transaction of the Private Company, its agents or
servants occurring prior to September 30, 1999, which are not disclosed by or
reflected in said financial statements. As of the date hereof, there are no
known circumstances, conditions, happenings, events or arrangements,
contractual or otherwise, which may hereafter give rise to liabilities,
except in the normal course of business of the Private Company.
3.6 Absence of Certain Changes or Events. Except as set forth
in this Agreement, since September 30, 1999, there has not been (i) any
material adverse change in the business, operation properties, level of
inventory, assets, or condition of the Private Company, or (ii) any damage,
destruction, or loss to the Private Company (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or conditions of the Private Company.
3.7 Litigation. There are no legal, administrative or other
proceedings, investigations or inquiries, product liability or other claims,
judgments, injunctions or restrictions, either threatened, pending, or
outstanding against or involving the Private Company or its subsidiaries, if
any, or their assets, properties, or business, nor does the Private Company
or its subsidiaries know, or have reasonable grounds to know, of any basis
for any such proceedings, investigations or inquiries, product liability or
other claims, judgments, injunctions or restrictions. In addition, there are
no material proceedings existing, pending or reasonably contemplated to which
any officer, director, or affiliate of the Private Company or as to which any
of the Shareholders is a party adverse to the Private Company or any of its
subsidiaries or has a material interest adverse to the Private Company or any
of its subsidiaries.
3.8 Taxes. All federal, state, foreign, county and local
income, profits, franchise, occupation, property, sales, use, gross receipts
and other taxes (including any interest or penalties relating thereto) and
assessments which are due and payable have been duly reported, fully paid and
discharged as reported by the Private Company, and there are no unpaid taxes
which are, or could become a lien on the properties and assets of the Private
Company, except as provided for in the financial statements of the Private
Company, or have been incurred in the normal course of business of the
Private Company since that date. All tax returns of any kind required to be
filed have been filed and the taxes paid or accrued.
3.9 Hazardous Materials. No hazardous material has been
released, placed, stored, generated, used, manufactured, treated, deposited,
spilled, discharged, released, or disposed of on or under any real property
currently or previously owned or leased by the Private Company or any of its
subsidiaries.
3.10 Accuracy of All Statements Made by the Private Company. No
representation or warranty by the Private Company in this Agreement, nor any
statement, certificate, schedule, or exhibit hereto furnished or to be
furnished by or on behalf of the Private Company pursuant to this Agreement,
nor any document or certificate delivered to the Purchaser by the Private
Company 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 statements
contained therein not misleading.
4. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Private Company and to the Shareholders as set
forth below. These representations and warranties are made as an inducement
for the Private Company and the Shareholders to enter into this Agreement
and, but for the making of such representations and warranties and their
accuracy, the Private Company and the Shareholders would not be parties
hereto.
4.1 Organization and Good Standing. The Purchaser 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 Capitalization. As of the date of the Closing, the
Purchaser will have a total of no more than 3,321,200 shares of common stock
issued and outstanding (excluding the shares to be issued pursuant to this
Agreement). All of the shares will have been duly authorized and validly
issued and will be fully paid and nonassessable. Except for the Purchaser's
obligations hereunder with respect to the shares to be issued pursuant to
subsection 1.2 hereof, there are no options, warrants, conversion privileges,
or other rights presently outstanding for the purchase of any authorized but
unissued stock of the Purchaser. As of the Closing, the Articles of
Incorporation, as amended, of the Purchaser (the "Purchaser Articles") and as
currently in effect shall be in the form previously furnished to the Private
Company and the Shareholders. The rights, preferences, and privileges of the
common stock shall be as set forth in the Purchaser Articles.
4.3 Performance of This Agreement. The execution and
performance of this Agreement and the issuance of stock contemplated hereby
have been authorized by the board of directors of the Purchaser.
4.4 Financials. True copies of the financial statements of the
Purchaser consisting of the audited financial statements as of the periods
ended December 31, 1996, December 31, 1997 and April 30, 1998, examined and
certified by Xxxxxxxx Xxxxxxxx & Xxxxxx, X.X., Certified Public Accountant,
the audited financial statements of period ended December 31, 1998, examined
and certified by Xxxxxxxxxxxx & Co., Certified Public Accountant, and the
unaudited financial Statements of the Purchaser as of the period ended June
30, 1999, have been delivered by the Purchaser to the Private Company. Said
financial statements are true and correct in all material respects and
present an accurate and complete disclosure of the financial condition of the
Purchaser as of June 30, 1999, and the earnings for the periods covered, in
accordance with generally accepted accounting principles applied on a
consistent basis.
4.5 Liabilities. There are no material liabilities of the
Purchaser, whether accrued, absolute, contingent or otherwise, which arose or
relate to any transaction of the Purchaser, its agents or servants which are
not disclosed by or reflected in said financial statements. As of the date
hereof, there are no known circumstances, conditions, happenings, events or
arrangements, contractual or otherwise, which may hereafter give rise to
liabilities, except in the normal course of business of the Purchaser.
4.6 Litigation. There are no legal, administrative or other
proceedings, investigations or inquiries, product liability or other claims,
judgments, injunctions or restrictions, either threatened, pending, or
outstanding against or involving the Purchaser or its subsidiaries, if any,
or their assets, properties, or business, nor does the Purchaser or its
subsidiaries know, or have reasonable grounds to know, of any basis for any
such proceeding, investigations or inquiries, product liability or other
claims, judgments, injunctions or restrictions. In addition, there are no
material proceedings existing, pending or reasonably contemplated to which
any officer, director, or affiliate of the Purchaser is a party adverse to
the Purchaser or any of its subsidiaries or has a material interest adverse
to the Purchaser or any of its subsidiaries.
4.7 Taxes. All federal, state, foreign, county and local
income, profits, franchise, occupation, property, sales, use, gross receipts
and other taxes (including any interest or penalties relating thereto) and
assessments which are due and payable have been duly reported, fully paid and
discharged as reported by the Purchaser, and there are no unpaid taxes which
are, or could become a lien on the properties and assets of the Purchaser,
except as provided for in the financial statements of the Purchaser, or have
been incurred in the normal course of business of the Purchaser since that
date. All tax returns of any kind required to be filed have been filed and
the taxes paid or accrued.
4.8 Hazardous Materials. No hazardous material has been
released, placed, stored, generated, used, manufactured, treated, deposited,
spilled, discharged, released, or disposed of on or under any real property
currently or previously owned or leased by the Purchaser or any of its
subsidiaries.
4.9 Legality of Shares to be Issued. The shares of common
stock of the Purchaser to be issued by the Purchaser pursuant to this
Agreement, when so issued and delivered, will have been duly and validly
authorized and issued by the Purchaser and will be fully paid and
nonassessable.
4.10 Accuracy of All Statements Made by the Purchaser. No
representation or warranty by the Purchaser in this Agreement, nor any
statement, certificate, schedule, or exhibit hereto furnished or to be
furnished by the Purchaser pursuant to this Agreement, nor any
document or certificate delivered to the Private Company or the Shareholders
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 statements
contained therein not misleading.
5. Covenants of the Parties.
5.1 Corporate Records.
a. Simultaneous with the execution of this Agreement by
the Private Company, if not previously furnished, such entity shall deliver
to the Purchaser copies of the articles of incorporation, as amended, and the
current bylaws of the Private Company, and copies of the resolutions duly
adopted by the board of directors of the Private Company approving this
Agreement and the transactions herein contemplated.
b. Simultaneous with the execution of this Agreement by
the Purchaser, if not previously furnished, such entity, shall deliver to the
Private Company copies of the Purchaser Articles, and the current bylaws of
the Purchaser, and copies of the resolutions duly adopted by the board of
directors of the Purchaser approving this Agreement and the transactions
herein contemplated.
5.2 Access to Information.
a. The Purchaser and its authorized representatives
shall have full access during normal business hours to all properties, books,
records, contracts, and documents of the Private Company, and the Private
Company shall furnish or cause to be furnished to the Purchaser and its
authorized representatives all information with respect to its affairs and
business as the Purchaser may reasonably request. The Purchaser shall hold,
and shall cause its representatives to hold confidential, all such
information and documents, other than information that (i) is in the public
domain at the time of its disclosure to the Purchaser; (ii) becomes part of
the public domain after disclosure through no fault of the Purchaser; (iii)
is known to the Purchaser or any of its officers or directors prior to
disclosure; or (iv) is disclosed in accordance with the written consent of
the Private Company. In the event this Agreement is terminated prior to
Closing, the Purchaser shall, upon the written request of the Private
Company, promptly return all copies of all documentation and information
provided by the Private Company hereunder.
b. The Private Company and its authorized
representatives shall have full access during normal business hours to all
properties, books, records, contracts, and documents of the Purchaser, and
the Purchaser shall furnish or cause to be furnished to the Private Company
and its authorized representatives all information with respect to its
affairs and business the Private Company may reasonably request. The Private
Company shall hold, and shall cause its representatives to hold confidential,
all such information and documents, other than information that (i) is in the
public domain at the time of its disclosure to the Private Company; (ii)
becomes part of the public domain after disclosure through no fault of the
Private Company; (iii) is known to the Private Company or any of its officers
or directors prior to disclosure; or
(iv) is disclosed in accordance with the written consent of the Purchaser.
In the event this Agreement is terminated prior to Closing, the Private
Company shall, upon the written request of the Purchaser, promptly return all
copies of all documentation and information provided by the Purchaser
hereunder.
5.3 Actions Prior to Closing. From and after the date or this
Agreement and until the Closing Date:
a. The Purchaser and the Private Company shall each carry
on its business diligently and substantially in the same manner as
heretofore, and neither party shall make or institute any unusual or novel
methods of purchase, sale, management, accounting or operation.
b. Neither the Purchaser nor the Private Company shall
enter into any contract or commitment, or engage in any transaction not in
the usual and ordinary course of business and consistent with its business
practices.
c. Neither the Purchaser nor the Private Company shall
amend its articles of incorporation or bylaws or make any changes in
authorized or issued capital stock, except as provided in this Agreement,
d. The Purchaser and the Private Company shall each use
its best efforts (without making any commitments on behalf of the company) to
preserve its business organization intact.
e. Neither the Purchaser nor the Private Company shall
do any act or omit to do any act, or permit any act or omission to act, which
will cause a material breach of any material contract, commitment, or
obligation of such party.
f. The Purchaser and the Private Company shall each duly
comply with all applicable law as may be required for the valid and effective
issuance or transfer of stock contemplated by this Agreement.
g. Neither the Purchaser nor the Private Company shall
sell or dispose of any property or assets, except products sold in the
ordinary course of business.
h. The Purchaser and the Private Company shall each
promptly notify the other of any lawsuits, claims, proceedings, or
investigations that may be threatened, brought, asserted, or commenced
against it, its officers or directors involving in any way the business,
properties, or assets of such party.
5.4 Shareholders' Approval, The Purchaser shall promptly submit
this Agreement and the transactions contemplated hereby for the approval of
its stockholders by majority written consent or at a meeting of stockholders
and, subject to the fiduciary duties of the Board of directors of the
Purchaser under applicable law, shall use its best efforts to obtain
stockholder approval and adoption of this Agreement and the transactions
contemplated hereby.
In connection with such written action by, or meeting of, stockholders, the
Purchaser shall prepare a proxy or information statement to be furnished to
the shareholders of the Purchaser setting forth information about this
Agreement and the transactions contemplated hereby. The Private Party shall
promptly furnish to the Purchaser all information, and take such other
actions, as may reasonably be requested in connection with any action to be
taken by the Purchaser in connection with the immediately preceding sentence.
The Private Company shall have the right to review and provide comments to
the proxy or information statement prior to mailing to the shareholders of
the Purchaser.
5.5 No Covenant as to Tax or Accounting Consequences. It is
expressly understood and agreed that neither the Purchaser nor its officers
or agents 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.
5.6. Indemnification. The Private Company and the Shareholders,
severally and not jointly, shall indemnify Purchaser for any loss, cost,
expense, or other damage (including, without limitation, attorneys' fees and
expenses) suffered by Purchaser resulting from, arising out of, or incurred
with respect to the falsity or the breach of any representation, warranty, or
covenant made by the Private Company or the Shareholders herein, and any
claims arising from the operations of the Private Company prior to the
Closing Date. Purchaser shall indemnify and hold the Private Company and the
Shareholders harmless from and against any 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 Purchaser
herein, and any claims arising from the operations of Purchaser 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 and shall survive the consummation of the
transactions contemplated by this Agreement.
5.7 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.
5.8 Expenses. Except as otherwise expressly provided herein,
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.
5.9 Further Actions. Each of the parties hereto shall take all
such further actions and execute and deliver such further documents, as may
be necessary to carry out the transactions contemplated by this Agreement.
6. Conditions Precedent to the Purchaser's Obligations. Each and
every obligation of the Purchaser to be performed on the Closing Date shall
be subject to the satisfaction prior thereto of the following conditions:
6.1 Truth of Representations and Warranties. The
representations and warranties made by the Private Company and the
Shareholders 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.
6.2 Performance of Obligations and Covenants. The Private
Company and the Shareholders 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.
6.3 Officer's Certificate. The Purchaser shall have been
furnished with a certificate (dated as of the Closing Date and in form and
substance reasonably satisfactory to the Purchaser), executed by an executive
officer of the Private Company, certifying to the fulfillment of the
conditions specified in subsections 6.1 and 6.2 hereof.
6.4 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.
6.5 No Material Adverse Change. As of the Closing Date there
shall not have occurred any material adverse change, financially or
otherwise, which rnateriafly impairs the ability of the Private Company to
conduct its business or the earning power thereof on the same basis as in the
past.
6.6 Shareholders' Approval. The holders of not less than a
majority of the outstanding common stock of the Purchaser shall have voted
for authorization and approval of this Agreement and the transactions
contemplated hereby.
6.7 Shareholders' Execution of Agreement. This Agreement shall
have been duly executed and delivered by each of the parties owning in the
aggregate all of the outstanding stock of the Private Company as of the
Closing Date.
7. Conditions Precedent to Obligations of the Private Company and
the Shareholders. Each and every obligation of the Private Company and the
Shareholders 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 by the Purchaser in this Agreement or
given on its behalf hereunder shall be substantially accurate in a 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. The Purchaser
shall have performed and complied with all obligations and covenants required
by this Agreement to be performed or compiled with by it prior to or at the
Closing.
7.3 Officer's Certificate. The Private Company shall have been
furnished with a certificate (dated as of the Closing Date and in form and
substance reasonably satisfactory to the Private Company), executed by an
executive officer of the Purchaser, 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.
7.5 No Material Adverse Change. As of the Closing Date there
shall not have occurred any material adverse change, financially or
otherwise, which materially impairs the ability of the Purchaser to conduct
its business.
7.6 Employment of Xxxx XxXxx. On or before the Closing Date,
and upon and as a condition of Closing this Agreement, the Purchaser and Xxxx
XxXxx will execute an employment agreement subject only to the Closing of
this Agreement, which will, inter alia, employ Xxxx XxXxx as the President of
Purchaser for thirty six (36) months at an annual salary of $300,000, plus an
auto allowance of $800 per month, bonus compensation, and such other benefits
as are standard for senior management of the Purchaser.
8. Securities Law Provisions.
8.1 Restricted Securities. Each of the parties hereto,
severally and not jointly, represents that he, she, or it is aware that the
shares issued or transferred to him, her, or it will not have been registered
pursuant to the Securities Act of 1933, as amended (the "1933 Act"), or any
state securities act, and thus will be restricted securities as defined in
Rule 144 promulgated by the Securities and Exchange Commission (the "SEC").
Therefore, under current interpretations and applicable rules, he, she, or it
will probably have to retain such shares for a period of at least one year
and at the expiration of such one year period his, her, or its sales may be
confined to brokerage transactions of limited amounts requiring certain
notification filings with the SEC and such disposition may be available only
if the issuer is current in its filings with the SEC under the Securities
Exchange Act of 1934, as amended, or other public disclosure requirements.
8.2 Non-distributive Intent. Each of the parties hereto,
severally and not jointly, covenants and warrants that the shares received
are acquired for his, her, or its own account and not with the present view
towards the distribution thereof and he, she, or it will not dispose of such
shares except (i) pursuant to an effective registration statement under the
1933 Act, or (ii) in any other transaction which, in the opinion of counsel
acceptable to the issuer, is exempt from registration under the 1933 Act, or
the rules and regulations of the SEC thereunder. In order to effectuate the
covenants of this subsection, an appropriate legend will be placed upon each
of the certificates of common stock issued or transferred pursuant to this
Agreement, and stop transfer instructions shall be placed with the transfer
agent for the securities.
9. Closing.
9.1 Time and Place. The Closing of this transaction
("Closing") shall take place at 0000 X. Xxxxxxxxx Xxxx, Xxxxx 00, Xxxx, XX at
10:00 am, on October 1, 1999, 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."
9.2 Documents To Be Delivered by the Private Company and the
Shareholders. At the Closing the Private Company and the Shareholders shall
deliver to the Purchaser the following documents:
a. Certificates for the number of shares of common stock
of the Private Company in the manner and form required by subsection 1.1
hereof.
b. The certificate required pursuant to subsection 6.3
hereof.
c. Such other documents of transfer, certificates of
authority, and other documents as the Purchaser may reasonably request.
9.3 Documents to be Delivered by the Purchaser. At the Closing
the Purchaser shall deliver to the Private Company and the Shareholders the
following documents:
a. Certificates for the number of shares of common stock
of the Purchaser as determined in subsection 1.2 hereof
b. The certificate required pursuant to subsection 7.3
hereof,
c. The employment agreement for Xxxx XxXxx pursuant to
subsection 7.6 hereof.
d. Such other documents of transfer, certificates of
authority, and other documents as the Private Company and the Shareholders
may reasonably request.
10. This Agreement may be terminated by the Purchaser or the Private
Company by notice to the other 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 October 30, 1999, 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.
11. Miscellaneous.
11.1 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 delivered pursuant to this
subsection:
Purchaser: Xxxxxxx Xxxxx
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
Private Company
and Shareholders: Xxxx XxXxx
0000 Xxxxxx Xx., Xxxxx 0
Xxxxxxx, XX 00000
11.2 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 the statutes of the State of Utah.
11.3 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.
11.4 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.
11.5 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.
11.6 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,
letters of intent, and preliminary agreements between the parties hereto
relating to the subject matter of this Agreement.
11.7 Interpretation of Agreement. This Agreement shall be
interpreted and construed as if equally drafted by all parties hereto.
11.8 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.
11.9 Further Action. The Parties hereto agree to execute and
deliver such additional documents and to take such other and further action
as may be required to carry out fully the transaction contemplated herein.
11.10 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.
11.11 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.
11.12 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.
11.13 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.
IN WITNESS WHEREOF, the parties hereto executed the foregoing
Agreement and Plan of Reorganization as of the day and year first above
written.
PURCHASER: PayStar Communications Corporation
By /s/ Xxxxxxx X. Xxxxx, President
PRIVATE COMPANY: U.S. Cash Exchange, Inc.
By /s/ Xxxx XxXxx, President
SHAREHOLDERS: /s/ Xxxxxxx Xxxxx, Individually
/s/ Xxxx XxXxx, Individually
/s/ Xxxxxxx Xxxxxx
MIH Associates, Inc.
SCHEDULE "A"
TO THE
AGREEMENT AND PLAN OF REORGANIZATION
NAME OF NO. OF SHARES OF NO. OF SHARES OF
SHAREHOLDER THE PRIVATE COMPANY THE PURCHASER
TO BE TRANSFERRED TO BE ISSUED
Xxxxxxx Xxxxx 1,000 1,075,000
Xxxx XxXxx 1,000 1,075,000
MIH Associates, Inc. 500 550,000
------ ----------
TOTAL 2,500 2,700,000
