MERGER AGREEMENT AND PLAN OF REORGANIZATION
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THIS MERGER AGREEMENT AND PLAN OF REORGANIZATION ("Agreement"), dated May
22, 2000, by and among Asia Internet Xxxxxxxx.xxx, Inc., a Maryland corporation
("Internet Services"), Xxxxxxx X. Xxx (the "Shareholder"), Technologies, Inc., a
Nevada corporation ("ZiaSun"), and Internet Merger Corp., a Maryland corporation
("MergerSub").
PLAN OF REORGANIZATION
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The reorganization (the "Reorganization") will comprise, in general, the
merger of MergerSub with and into Internet Services and the issuance to the
Shareholder by ZiaSun of one hundred fifty thousand (150,000) restricted shares
of the authorized but unissued voting common stock (the "Common Stock") of
ZiaSun (the "Shares"), and $200,000 cash (collectively the "Acquisition
Consideration") in exchange for the cancellation of the shares of Internet
Services, all upon and subject to the terms and conditions of the agreement
hereinafter set forth. The parties intend that the Reorganization qualifies as a
tax-free reorganization within the meaning of Section 368 of the Internal
Revenue Code of 1986, as amended (the "Code"). The parties further intend for
the Reorganization to qualify for accounting treatment as a purchase.
AGREEMENT
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In order to consummate the Reorganization, and in consideration of the
representations and undertakings herein set forth, the parties agree as follows:
1. The Merger. At the Effective Time (as defined in Section 1.1) and
subject to and upon the terms and conditions of this Agreement and the
applicable provisions of the Maryland Code Annotated (the "MDC"), MergerSub
shall be merged with and into Internet Services, the separate existence of
MergerSub shall cease and Internet Services shall continue as the surviving
corporation and as a wholly-owned subsidiary of ZiaSun (the "Merger"). Internet
Services as the surviving corporation after the Merger is sometimes referred to
as the "Surviving Corporation." The Merger shall be accomplished as follows:
1.1 Effective Time. The closing of the Merger (the "Closing") will
take place as promptly as practicable, but in no event later than fourteen
(14) days from the date hereof, at the offices of Wenthur & Chachas, 4180
La Jolla Xxxxxxx Xxxxx, Xxxxx 000, Xx Xxxxx, Xxxxxxxxxx 00000, or via
federal express. At the Closing, the parties shall cause the Merger to be
consummated by filing a Certificate of Merger with the Maryland Secretary
of State (the "Certificate of Merger") in accordance with the relevant
provisions of the MDC. The date and time the Merger becomes effective in
accordance with the provisions of the MDC is the "Effective Time."
1.2 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of the MDC.
Without limiting the generality of the foregoing, and subject thereto, at
the Effective Time, all the property, rights, privileges, powers and
franchises of Internet Services and MergerSub shall vest in the Surviving
Corporation, and all debts, liabilities and duties of Internet Services and
MergerSub shall become the debts, liabilities and duties of the Surviving
Corporation.
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1.3 Articles of Incorporation: Bylaws. Unless otherwise determined by
ZiaSun prior to the Effective Time, at the Effective Time, the Articles of
Incorporation and Bylaws of Internet Services shall be the Articles of
Incorporation and Bylaws of the Surviving Corporation.
1.4 Directors and Officers. The Directors of MergerSub immediately
prior to the Effective Time shall be the initial Directors of the Surviving
Corporation, each to hold office in accordance with the Articles of
Incorporation and Bylaws of the Surviving Corporation. The officers of
MergerSub immediately prior to the Effective Time shall be the initial
officers of the Surviving Corporation, each to hold office in accordance
with the Bylaws of the Surviving Corporation.
1.5 Shares to be Issued. The maximum number of shares of ZiaSun Common
Stock to be issued in exchange for the cancellation of all outstanding
Internet Services capital stock shall be one hundred fifty thousand
(150,000) restricted shares. At the Closing Internet Services shall have
one hundred (100) shares issued and outstanding and each share of Common
Stock of Internet Services (the "Internet Services Common Stock") issued
and outstanding immediately prior to the Effective Time will be canceled
and extinguished and be converted automatically into the right to receive
1,500 restricted shares of ZiaSun Common Stock upon surrender of the
certificate representing such shares of Internet Services Common Stock in
the manner provided in Section 1.7. From the date hereof until the
Effective Time, Internet Services agrees not to issue any additional shares
of its capital Stock (including any options, warrants, conversion
privileges or other rights, commitments or agreements of any nature to
purchase any such shares of Internet Services capital Stock). All of the
shares of MergerSub owned by ZiaSun immediately prior to the Effective Time
shall be converted into and exchanged for one validly issued, fully paid
and non-assessable share of Common Stock of the Surviving Corporation. Each
stock certificate of MergerSub evidencing ownership of any shares shall
continue to evidence ownership of shares of capital stock of the Surviving
Corporation. No fraction of a share of ZiaSun Common Stock will be issued,
but in lieu thereof, each holder of shares of Internet Services Common
Stock who would otherwise be entitled to a fraction of a share of ZiaSun
Common Stock (after aggregating all fractional shares of ZiaSun Common
Stock to be received by such holder) shall be entitled to receive from
ZiaSun in cash, the amount (rounded to the nearest whole cent) equal to the
product of (i) such fraction, multiplied by (ii) the average closing price
of a share of ZiaSun Common Stock for the five (5) consecutive trading days
ending on the trading day immediately prior to the Closing, as reported on
the NASD Over the Counter Bulletin Board.
1.6 Dissenting Shares. Prior to the execution and delivery of this
Agreement by the parties, all of the holders of Internet Services Common
Stock shall have irrevocably consented to and approved the Merger and no
holders of any shares of Internet Services Common Stock shall be entitled
to appraisal or dissenters' rights.
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1.7 Surrender of Certificates. Prior to the Effective Time, ZiaSun
shall designate its legal counsel, Wenthur & Chachas, to act as the
exchange agent (the "Exchange Agent") in the Merger. Promptly after the
Effective Time, ZiaSun shall make available to the Exchange Agent for
exchange in accordance with this Section 1.7, the aggregate number of
shares of ZiaSun Common Stock issuable pursuant to Section 1.5 in exchange
for all issued and outstanding shares of Internet Services Common Stock.
Promptly after the Effective Time, the Surviving Corporation shall cause to
be mailed to each holder of record of a certificate or certificates (the
"Certificates") which immediately prior to the Effective Time represented
outstanding shares of Internet Services Common Stock whose shares were
converted to the right to receive shares of ZiaSun Common Stock pursuant to
Section 1.5, (i) a letter of transmittal (which shall specify that delivery
shall be effected, and the risk of loss and title to the Certificates shall
pass, only upon delivery of the Certificates to the Exchange Agent and
shall be in such form and shall have such other provisions as ZiaSun may
reasonably specify) and (ii) instructions for use in effecting the
surrender of the Certificates in exchange for certificates representing
shares of ZiaSun Common Stock. Upon surrender of a Certificate for
cancellation to the Exchange Agent together with such letter of transmittal
duly completed and validly executed in accordance with the instructions
thereto, the holder of the Certificate shall be entitled to receive in
exchange therefore a certificate representing the number of whole shares of
ZiaSun Common Stock plus cash in lieu of fractional shares in accordance
with Section 1.5, to which such holder is entitled pursuant to Section 1.5,
and the Certificate so surrendered shall forthwith be canceled. Until so
surrendered, each outstanding Certificate that, prior to the Effective
Time, represented shares of Internet Services Common Stock will be deemed
from and after the Effective Time, for all corporate purposes, to evidence
the ownership of the number of full shares of ZiaSun Common Stock into
which such shares of Internet Services Common Stock shall and have been so
converted and the right to receive an amount in cash in lieu of the
issuance of any fractional shares in accordance with Section 1.5.
1.8 Tax and Accounting Consequences. It is intended by the parties
hereto that the Merger shall constitute a reorganization within the meaning
of Section 368 of the Code and qualify for accounting treatment as a
"purchase."
1.9 Further Action. If, at any time after the Effective Date, any such
further action is necessary or desirable to carry out the purposes of this
Agreement and to vest the Surviving Corporation with full right, title and
possession to all assets, properties, rights, privileges, powers and
franchises of Internet Services and MergerSub, the officers and Directors
of Internet Services and MergerSub are fully authorized in the name of
their respective corporations or otherwise to take, and will take, all such
lawful and necessary action.
2. Representations and Warranties of Internet Services and the Shareholder.
Internet Services and the Shareholder, jointly and severally, represent and
warrant to ZiaSun that, to the best of their knowledge, all of the statements
made below in this Section 2 are true and correct in all material respects.
These representations and warranties are subject to the exceptions set forth on
attached Exhibit 2 (the "Schedule of Exceptions"), specifically identifying the
relevant Section hereof, which exceptions shall be deemed to be representations
and warranties as if made hereunder. The phrase "to the best knowledge of
Internet Services" shall, when included in a representation or warranty made by
a Shareholder, means to the best knowledge of such Shareholder.
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2.1 Organization and Standing. Internet Services is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Maryland and has full power and authority to carry on its business
as now conducted and as proposed to be conducted. Internet Services is not
required to be qualified as a foreign corporation in any jurisdiction;
provided, however, that Internet Services need not be qualified in any
jurisdiction in which a failure to qualify would not have a material and
adverse effect on its operations or financial condition.
2.2 Capitalization. The authorized capital stock of Internet Services
consists of one thousand (1,000) share of Common Stock, of which one
hundred (100) shares are presently, and at the Effective Time will be
issued and outstanding. All of Internet Services' issued and outstanding
shares are owned beneficially and of record by the Shareholder in the
amount set forth on attached Exhibit 2.2. All outstanding shares of
Internet Services Common Stock are duly authorized, validly issued, fully
paid and non-assessable and are not subject to preemptive rights created by
statute, the Articles of Incorporation or Bylaws of Internet Services or
any agreement to which Internet Services or the Shareholder is a party or
by which it is bound. There are no options, warrants, calls, rights,
conversion privileges, commitments or agreements of any character, written
or oral, to which Internet Services is party, or by which it is bound,
obligating Internet Services to issue, deliver, sell, repurchase or redeem
any shares of the capital stock of Internet Services.
2.3 Subsidiaries. Internet Services has no subsidiaries or affiliated
companies and does not otherwise own or control, directly or indirectly,
any equity interest in any corporation, association, joint venture,
partnership or other business entity.
2.4 Corporate Authority and Authorization. Internet Services has all
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. All corporate action on
the part of Internet Services, its officers, directors and Shareholder
necessary for the authorization, execution, delivery and performance of
this Agreement by Internet Services and the performance of all of Internet
Services' obligations hereunder has been taken. As set forth in Section 1.6
above, all of the holders of Internet Services Capital Stock have consented
to and approved the Merger and no holders of any shares of Internet
Services Capital Stock are entitled to appraisal or dissenters' rights.
This Agreement constitutes a valid and binding obligation of Internet
Services and the Shareholder, enforceable against Internet Services and the
Shareholder in accordance with its terms, except as the indemnification
provisions of Section 5.0 hereof may be limited by principles of public
policy and subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies.
2.5 Governmental Consent. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the
part of Internet Services is required in connection with the valid
execution and delivery of this Agreement, or the consummation of any
transaction contemplated hereby.
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2.6 Intellectual Property.
2.6.1 To the best knowledge of Internet Services and the
Shareholder, Internet Services possesses and has good, valid and
marketable title, free and clear of all security interests, liens,
claims, charges, encumbrances or any other defects in title of any
nature whatsoever to, or has the valid, enforceable right to use
(pursuant to written agreements, true and correct copies of which are
listed on Exhibit 2.6.1 and have been submitted to ZiaSun), all
trademarks, trademark rights, trade names, trade name rights,
licenses, franchises, service marks, patents, patent applications,
copyrights, inventions, discoveries, improvements, processes, trade
secrets, confidential or proprietary information, formulae,
proprietary rights or data, shop rights, algorithms, technical data,
ideas or know-how (collectively the "Intellectual Property") necessary
to conduct its business as now being conducted, without conflict with
or infringement upon any valid rights of others and the lack of which
could adversely affect the operations or condition, financial or
otherwise, of Internet Services. To the best knowledge of Internet
Services and Shareholder, Internet Services (i) owns or has the right
to use (and to make, use, sell, license and lease products
incorporating or manufactured using), free and clear of all liens,
claims and restrictions, all Intellectual Property used in the conduct
of its business as now conducted or as proposed to be conducted
without infringing upon or otherwise acting adversely to the right or
claimed right of any person under or with respect to any of the
foregoing, and (ii) is not obligated or under any liability whatsoever
to make any payments by way of royalties, fees or otherwise to any
owner of, licensor of or other claimant to any patent, trademark,
service xxxx, trade name, copyright, license or other right with
respect to the use thereof in connection with the conduct of its
business or otherwise. Internet Services owns and has unrestricted
rights to use all Intellectual Property required for or incident to
the development, manufacture, operation and sale of all products and
services sold or proposed to be sold by Internet Services, free and
clear of any rights, liens or claims of others, including, without
limitation, former employers or all employees of Internet Services, of
which it has knowledge. All of the foregoing rights to Intellectual
Property will be owned and enjoyed by the Surviving Corporation
following the Merger without the consent or approval of any third
party and, following such Merger, the Surviving Corporation will
possess and enjoy all of such rights to Intellectual Property as
Internet Services did immediately prior to such Merger.
2.6.2 Set forth in Exhibit 2.6.2 is a complete listing of all
software related in any fashion or manner whatsoever to the business
of Internet Services as now conducted (the "Software"). All copies of
the Software were, as of the Closing, in Internet Services' possession
and control, except for certain object code copies which then were in
the possession of customers of Internet Services. All such customers
have entered into license agreements with Internet Services that, to
the best knowledge of Internet Services, effectively protect Internet
Services' rights in and to all such Software. For purposes of this
Section, the term "Software" includes any set of instructions
(including, without limitation, arithmetic, logical, data transfer,
data manipulation and input/output) meant to run on, or to control the
operation of, any computer, whether those instructions are a complete
program, a collection of programs making up a subsystem or system or
are merely subroutines or macro routines meant to operate in
conjunction with other software, and whether such instructions must be
run through another computer program (commonly referenced as a
"compiler") before being usable on a computer, whether such
instructions must be used at execution time in conjunction with
another computer program (commonly referenced as an "interpreter") or
whether such instructions are in a form that can be run on a computer
"as is" without additional programs.
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2.6.3 To the best knowledge of Internet Services and the
Shareholder, the Software will not, due to a date change: (i) have any
operational impediments, (ii) malfunction, (iii) cease to perform,
(iv) generate incorrect or ambiguous data or results with respect to
same-century and multi-century, Leap Year and other calendar formulas,
functions and data or (v) produce incorrect or ambiguous results with
respect to same-century and multi-century, Leap Year and other
calendar formulas, functions, date values and date data interfaces.
The Software is free from all computer "viruses" and other illicit
code. The Software performs in all material respects in accordance
with its functional specifications.
2.7 Manufacturing Rights. Internet Services has not granted rights to
manufacture or assemble its products to any other person or entity.
2.8 Officers, Directors and Employees.
2.8.1 To the best knowledge of Internet Services and the
Shareholder, no present or former officer, director or employee of
Internet Services is a party to, or is otherwise bound by any
agreement or arrangement (including any agreement of non-competition)
that in any way adversely affects his or her performance of his or her
duties as an officer, director or employee of Internet Services or
Internet Services' ability to conduct its business. Internet Services
has established appropriate policies and procedures to ensure no
officer, director or other employee of Internet Services misuses
confidential information or trade secrets of others in the course of
their employment or other relationship with Internet Services.
Internet Services is not a party to any labor agreements, employment
contracts, consulting agreements or any other instruments which limit
the rights of Internet Services to terminate the employment or other
relationship with a particular individual at will. To the best of
knowledge of Internet Services and Shareholder, Internet Services is
not aware that any officer, director or key employee, or that any
group of officers, directors or key employees, would not continue
their employment with ZiaSun on the same terms as previously employed
by Internet Services.
2.8.2 Except as mandated by the laws of the United States or the
Philippines, Internet Services: (i) is not bound by or subject to any
collective bargaining agreement with respect to any of its employees
nor has any labor union requested or, to the best knowledge of
Internet Services, sought to represent any of the employees,
representatives or agents of Internet Services, (ii) does not have any
current labor problems or disputes, pending or threatened, (iii) does
not have in effect any "employee pension benefit plans" (as defined in
Section 3(2) of the Employee Retirement Income Security Act of 1974)
or employee benefit or similar plans qualified under Section 401 of
the Internal Revenue Code of 1986, as amended, and (iv) does not
maintain, has not in the past maintained and is not and has not been a
contributor to any multi-employer plan or single employer plan, as
defined in Section 4001 of the Employee Retirement Income Security Act
of 1974, as amended, for the employees of Internet Services or any
trade or business (whether or not incorporated) which, together with
Internet Services, would be deemed to be a "single employer" within
the meaning of such Section 4001. Internet Services has complied in
all material respects with all laws relating to the employment of
labor, including provisions relating to wages, hours, equal
opportunity, collective bargaining and payment of Social Security and
other taxes.
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2.9 Certain Transactions. Internet Services is not indebted, directly
or indirectly, to any of its officers, directors or the Shareholder, or to
their respective affiliates, spouses or children, in any amount whatsoever,
except for salaries and fees accrued in the ordinary course of business. To
the best knowledge of Internet Services and the Shareholder, none of said
officers, directors or the Shareholder, or any of their affiliates or
members of their immediate families, are indebted to Internet Services or
have any direct or indirect ownership interest in any firm or corporation
with which Internet Services is affiliated or with which Internet Services
has a business relationship, or any firm or corporation which competes with
Internet Services (except with respect to any interest in less than five
percent (5%) of the stock of any corporation whose stock is publicly
traded). With the exception of the relationship between Maryland
Composition Company, Inc. and Internet Services, no officer, director or
Shareholder, or any affiliate or member of their immediate families, is,
directly or indirectly, interested in any material contract with Internet
Services.
2.10 Compliance with Other Instruments, None Burdensome, Etc. , To the
best knowledge of Internet Services and the Shareholder, Internet Services
is not in violation of any term of its Articles of Incorporation or Bylaws,
as amended and in effect on and as of the Closing. Internet Services is not
in violation in any respect of any term or provision of any mortgage,
indebtedness, indenture, contract, agreement, instrument, judgment or
decree, order, statute, rule or regulation applicable to it where such
violation would adversely affect Internet Services, its operations or
financial condition. The execution, delivery and performance of and
compliance with this Agreement have not resulted and will not result in any
violation of or conflict with, or constitute a material default under, any
mortgage, indebtedness, indenture, contract, agreement, instrument,
judgment or decree, order, statute, rule or regulation applicable to it, or
result in the creation of any mortgage, pledge, lien, encumbrance or charge
upon any of the properties or assets of Internet Services; and there is no
such term or provision which adversely affects Internet Services, its
operations or financial condition as presently conducted or as contemplated
to be conducted. Internet Services and, to the best knowledge of Internet
Services, its officers, directors and key employees, are not parties to any
mortgage, indebtedness, indenture, contract, agreement, instrument,
judgment, decree or order restricting its ability to enter or compete in
any line of business or market.
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2.11 Material Contracts and Obligations.
2.11.1 Included in the Exhibit 2.11 is a list of all agreements,
contracts and other obligations to which Internet Services is a party
or by which it is bound that are material to the operation of its
business and properties, which: (i) provide for aggregate payments to
or by Internet Services in excess of Ten Thousand Dollars ($10,000),
(ii) obligate Internet Services to share, license or develop any
product or technology, (iii) appoint distributors, dealers or
sublicensees of Internet Services' products, which agreements cannot
be terminated on thirty (30) days' notice or less or (iv) involve
transactions or proposed transactions between Internet Services and
its officers, directors, affiliates or any affiliate thereof. Copies
of such agreements and contracts and documentation evidencing such
other obligations have been delivered to ZiaSun. All of such
agreements and contracts are valid, binding and in full force and
effect in all material respects, assuming due execution by the other
parties to such agreements and contracts. There is no pending or
threatened dispute or disagreement, and there have been no events
which may give rise to any dispute or disagreement, between Internet
Services and any of the clients or customers of Internet Services, or
any other person having a business relationship with Internet
Services, which dispute or disagreement, if resolved unfavorably to
Internet Services, would have a materially adverse effect on the
operations or financial condition of Internet Services. No client or
customer of Internet Services, or any other person having a business
relationship with Internet Services, has indicated that it presently
contemplates terminating its business relationship with Internet
Services.
2.11.2 To the best knowledge of Internet Services and
Shareholder, all open orders, licenses and contracts for Internet
Services' products and services can be fulfilled by Internet Services
within its current capacity, in accordance with the terms thereof, and
the fulfillment thereof will not result in material losses or material
warranty or other liabilities to the Surviving Corporation. Exhibit
2.11 sets forth a summary of Internet Services' backlog (including
deferred revenue recorded on Internet Services financials), which
includes the total backlog as of the date of this Agreement,
reflecting any written agreements and a monthly breakdown of the
expected shipment dates for the orders represented by such backlog.
All orders reflected in such backlog are evidenced by written purchase
orders or contracts. All such orders or contracts are firm, fixed,
committed and non-cancelable. To the best of its knowledge, Internet
Services will collect the revenue from such orders and contracts in
accordance with the terms of their respective purchase orders or
contracts, including, without limitation, receiving payment in
accordance with the deadline set forth therein.
2.12 Hazardous Waste Disposal. To the best knowledge of Internet
Services and the Shareholder, Internet Services has materially complied
with all laws regulating the discharge and disposal of hazardous waste, the
violation of which would have a material, adverse effect on the operations
or financial condition of Internet Services, including, but not limited to:
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2.12.1 Comprehensive Environmental Response, Compensation and
Liability Act, 42 USC Sections 9601, et seq.;
2.12.2 Resource Conservation and Recovery Act, 42 USC Sections
6901, et seq.; and
2.12.3 Toxic Substances Control Act, 15 USC Sections 2601, et
seq.
2.13 Licenses and Permits. Included in the Exhibit 2.13 is a complete
and accurate list of all of the licenses, permits, authorizations and
franchises issued to, possessed by, used by or otherwise in effect with
respect to the business of Internet Services. The Shareholder shall use his
best efforts to assist ZiaSun and Internet Services in obtaining any and
all items not currently represented on said exhibit at the earliest
possible time period following the transition. Taking the above into
account, Internet Services has delivered to ZiaSun complete and accurate
copies of all of the licenses, permits, authorizations and franchises
identified in said Exhibit. All of the licenses, permits, authorizations
and franchises identified are valid and in full force and effect. Said
licenses, permits, authorizations and franchises constitute all of the
licenses, permits, authorizations and franchises required to permit
Internet Services to conduct its business in the manner in which it is now
being conducted, and to the best knowledge of Internet Services and
Shareholder, Internet Services is not in violation or breach of any of the
terms, requirements or conditions of any of material licenses, permits,
authorizations or franchises.
2.14 Litigation, Etc. To the best knowledge of Internet Services and
the Shareholder, there are no actions, suits, proceedings or investigations
pending against Internet Services or, to the best knowledge of Internet
Services, any of its officers or directors or its properties, before any
court or governmental agency (nor, to the best knowledge of Internet
Services, is there any reasonable basis therefore or threat thereof),
which, either in any case or in the aggregate, might result in any material
adverse change in the business or financial condition of Internet Services,
or in any material impairment of the right or ability of Internet Services
to carry on its business as now conducted or in any material liability on
the part of Internet Services, or any change in the current equity
ownership of Internet Services, and none which questions the validity of
this Agreement or any action taken or to be taken in connection herewith.
The foregoing includes, without limiting its generality, actions pending or
threatened (or any basis therefore known to Internet Services) involving
the prior employment of any of Internet Services' employees, their use in
connection with Internet Services' business of any information or
techniques allegedly proprietary to any of their former employers or their
obligations under any agreements with prior employers.
2.15 Criminal Investigations and Activities. To the best knowledge of
Internet Services and Shareholder, Internet Services, its past and present
officers and directors and the Shareholder: (i) have never been convicted
of a felony, (ii) have not been named as a defendant in a pending criminal
proceeding involving a felony, and (iii) are not now or ever have been the
subject of any governmental decree or order prohibiting it or any of them
from engaging in certain business activities. There is no pending criminal
investigation of any nature whatsoever into the activities of Internet
Services, its officers, directors and Shareholder. Internet Services has
fully complied with the provisions of the United States Export
Administration Act and all rules and regulations promulgated thereunder.
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2.16 Material Liabilities. To the best knowledge of Internet Services
and the Shareholder, Internet Services has no liabilities which are,
individually or in the aggregate, material to the financial condition or
operating results of Internet Services which have not been disclosed on
Exhibit 2.16.
2.17 Internet Services Financial Statements. Exhibit 2.17 sets forth
Internet Services' audited balance sheets as of December 31, 1998 and 1999
(the "Balance Sheets") and the related audited statements of operations,
stockholders' equity and cash flows for the years then ended and the
Internet Services' unaudited balance sheets dated as of December 31, 1999
and the unaudited statements of operations for the period then ended (all
of the foregoing collectively the "Internet Services Financials"). The
Internet Services Financials have been prepared in accordance with
generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods presented except that the unaudited Internet
Services Financials do not contain the footnotes required by GAAP and are
subject to normal year-end adjustments which will not be material
individually or in the aggregate. The Internet Services Financials fairly
present the financial position of Internet Services as of their dates and
results of operations for the periods there ended. Except as set forth in
the Internet Services Financials, Internet Services does not have any
liability, indebtedness, obligation, expense, claim, deficiency, guaranty
or endorsement of any type, whether accrued, absolute, contingent, matured
or otherwise (whether or not required to be reflected in financial
statements in accordance with GAAP), which individually or in the aggregate
has not arisen in the ordinary course of Internet Services' business since
the unaudited Internet Services Financials, in all cases consistent with
past practices and amounts.
2.18 Tax and Other Returns and Reports.
2.18.1 Definition of Taxes. For the purposes of this Agreement,
"Tax" or, collectively, "Taxes", means any and all federal, state,
local and foreign taxes, assessments and other governmental charges,
duties, impositions and liabilities, including taxes based upon or
measured by gross receipts, income, profits, sales, use and
occupation, and value added, ad valorem, transfer, franchise,
withholding, payroll, recapture, employment, excise and property
taxes, together with all interest, penalties and additions imposed
with respect to such amounts and any obligations under any agreements
or arrangements with any other person with respect to such amounts and
including any liability for taxes of a predecessor entity.
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2.18.2 Tax Returns and Audits. Except as set forth in Exhibit
2.18.
(a) Internet Services as of the Effective Time will have
prepared and filed all Federal, state, local and foreign returns,
estimates, information statements and reports ("Returns")
required to be filed by such date relating to any and all Taxes
concerning or attributable to Internet Services or its operations
and such Returns are or will be true and correct and have or will
completed in accordance with applicable law.
(b) Internet Services as of the Effective Time: (a) will
have paid or accrued a reserve to pay all Taxes it is required to
pay or accrue and (b) will have withheld with respect to its
employees all federal and state income taxes, FICA, FUTA and
other Taxes required to be withheld.
(c) Internet Services has not been delinquent in the payment
of any Tax nor is there any Tax deficiency outstanding, proposed
or assessed against Internet Services, nor has Internet Services
executed any waiver of any statute of limitations on or extending
the period for the assessment or collection of any Tax.
(d) No audit or other examination of any Return of Internet
Services is presently in progress, nor has Internet Services been
notified of any request for such an audit or other examination.
(e) Internet Services does not have any liabilities for
unpaid Federal, state, local or foreign Taxes which have not been
accrued or reserved against on the Internet Services Financials,
whether asserted or unasserted, contingent or otherwise, and
Internet Services has no knowledge of or, any basis for the
assertion of any such liability attributable to Internet
Services, its assets or operations.
(f) Internet Services has provided to ZiaSun copies of all
Federal and state income and all state sales and use Tax Returns
filed to date for all periods since the date of Internet
Services' incorporation.
(g) With the exception of the line of credit and any other
Liens, as reflected on the Internet Services Financials, attached
hereto as Exhibit 2.17, there are (and as of immediately
following the Closing there will be) no liens, pledges, charges,
claims, security interests or other encumbrances of any sort
("Liens") on the assets of Internet Services relating to or
attributable to Taxes except liens for current taxes not yet
delinquent.
(h) Internet Services has no knowledge of any basis for the
assertion of any claims relating or attributable to Taxes which,
if adversely determined, would result in any Liens on the assets
of Internet Services.
11
(i) None of Internet Services's assets are treated as
"tax-exempt use property" within the meaning of Section 168(h) of
the Code.
(j) As of the Effective Time, there will not be any
contract, agreement, plan or arrangement, including but not
limited to the provisions of this Agreement, covering any
employee or former employee of Internet Services that,
individually or collectively, could give rise to the payment of
any amount that would not be deductible pursuant to Section 2806
or 162 of the Code.
(k) Internet Services has not filed any consent agreement
under Section 341(f) of the Code or agreed to have Section
341(f)(2) of the Code apply to any disposition of a subsection
(f) asset (as defined in Section 341(f)(4) of the Code) owned by
Internet Services.
(l) Internet Services is not a party to a tax sharing or
allocation agreement nor does Internet Services owe any amount
under any such agreement.
(m) Internet Services is not, and has not been at any time,
a "United States real property holding corporation" within the
meaning of Section 897(c)(2) of the Code.
(n) Internet Services has not agreed to and is not required
to make any adjustment pursuant to Section 481 (a) of the Code
(or any predecessor provision) by reason of any change in any
accounting method, and there is no application by Internet
Services pending with any taxing authority requesting permission
for any changes in any accounting method of Internet Services. No
taxing agency (domestic or foreign) has proposed any adjustment
or change in Internet Services' method of accounting for tax
purposes.
2.19 Title. Internet Services has good and marketable title to all of
its assets and properties (both tangible and intangible). Such assets and
properties (both tangible and intangible) are not subject to any security
interests, liens, mortgages, pledges, encumbrances or charges of any kind.
2.20 Change of Control. There is no plan or agreement pursuant to
which any amounts may become payable (whether currently or in the future)
to current or former employees, officers and directors of Internet Services
as a result of or in connection with the Merger.
2.21 Disclosure. To the best knowledge of Internet Services and the
Shareholder, Internet Services has fully provided ZiaSun with all of the
information which ZiaSun has requested for deciding whether to enter into
the Reorganization hereunder. To the best knowledge of Internet Services
and Shareholder, this Agreement, the Internet Services Financials, and any
written statement or certificate furnished to ZiaSun pursuant to this
Agreement in connection with the transactions contemplated by this
Agreement, when taken together, do not contain any untrue statement of a
material fact nor omit to state a material fact necessary to make the
statements made not misleading.
12
2.22 Tax Treatment of Transaction. To the best knowledge of Internet
Services and the Shareholder, and based upon consultation with its
independent advisors, Internet Services has not taken or agreed to take any
action, and is not aware of any condition that (without giving effect to
any action taken or agreed to be taken by Internet Services) would effect
the ability of the parties hereto to report the business combination to be
effected by the Merger as a tax-free reorganization within the meaning of
Section 368 of the Code.
3. Representations and Warranties of ZiaSun. ZiaSun represents and warrants
to the Shareholder that:
3.1 Corporate Status. ZiaSun is a corporation duly organized and
existing under the laws of Nevada, with authorized, issued and outstanding
capital stock as set forth in the 1934 Act documents defined in Section 3.4
below.
3.2 Corporate Authority and Authorization. ZiaSun has the corporate
power and authority to issue and deliver the ZiaSun Common Stock required
to be issued hereunder to Internet Services; and such shares when delivered
at or after the Closing will be fully paid and nonassessable. All corporate
action on the part of ZiaSun necessary for the authorization, execution,
delivery and performance of this Agreement by ZiaSun and the performance of
all of ZiaSun's obligations hereunder has been taken. This Agreement
constitutes a valid and binding obligation of ZiaSun, and enforceable
against ZiaSun in accordance with its terms, except the indemnification
provisions of Section 5. hereof may be limited by principals of public
policy and subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies.
3.3 Governmental Consent. To the best knowledge of ZiaSun, no consent,
approval or authorization or designation, declaration or filing with any
governmental authority on the part of ZiaSun or third parties, is required
in connection with the valid execution and delivery of this Agreement, or
of the consummation of any other transaction contemplated hereby except as
specifically referenced in the Agreement.
3.4 1934 Act Documents. ZiaSun has delivered to Internet Services and
the Shareholder a copy of its most current Registration Statement on Form
10-SB, as amended and its Form 10-KSB for the year ended December 31, 2000
(the "1934 Act Documents") filed with the U.S. Securities and Exchange
Commission ("SEC") by ZiaSun pursuant to the Securities Exchange Act of
1934 (the "1934 Act"). To the best knowledge of ZiaSun, None of the 1934
Documents, when taken together, contain any untrue statement of the
material fact or omit to state a material fact necessary to make the
statements made not misleading.
13
4. Additional Agreements.
4.1 Tax Accounting. ZiaSun, Internet Services and the Shareholder have
not taken and will not take any action which reasonably would be expected
to jeopardize the tax-free nature of the reorganization hereunder.
5. Survival of Representations. Warranties; Indemnity. The respective
representations and warranties given by ZiaSun, Internet Services and the
Shareholder contained herein shall remain effective against their respective
successors, heirs and assigns and shall survive the Closing. ZiaSun shall
indemnify and hold Internet Services and the Shareholder harmless from any
damage, claim, liability or expense, including reasonable attorneys' fees,
arising out of the breach of any representation or warranty or the
nonfulfillment of any agreement contained herein, or in any certificate to be
delivered at the Closing, by ZiaSun. Internet Services and the Shareholder,
jointly and severally, shall, in proportion to the Shareholder's respective
ownership interest in Internet Services, indemnify and hold ZiaSun harmless from
any damage, claim, liability or expense, including reasonable attorneys' fees,
arising out of the breach of any representation or warranty or the
nonfulfillment of any agreement contained herein, or in any certificate to be
delivered at the Closing, by Internet Services or the Shareholder, provided
however, that notice of any such breach shall have been communicated with
specificity within two (2) years of the date hereof.
6. Securities Laws Matters. Because of the exemptions from the registration
requirements of the Securities Act of 1933 (the "Act") and from the
qualification requirements of the Nevada Revised Statutes ("NRS") relied upon by
ZiaSun in issuing the shares of ZiaSun Common Stock under Section 1 above (the
"Securities"), the Shareholder represents and warranties that he:
6.1 Are aware that such Securities are highly speculative and that
there can be no assurance as to what return, if any, there may be.
6.2 Are aware of ZiaSun's business affairs and financial condition and
have acquired sufficient information about ZiaSun to reach an informed and
knowledgeable decision to acquire such Securities.
6.3 Are each acquiring such Securities for investment for his or her
own account only and not with a view to, or for sale in connection with,
any "distribution" thereof within the meaning of the Act or the NRS.
6.4 Understand that such Securities have not been registered under the
Act or qualified under the Law by reason of specific exemptions therefrom,
which exemptions depend upon, among other things, the bona fide nature of
the Shareholder's investment intent as expressed herein. In this
connection, the Shareholder understands that, in the view of the SEC, the
statutory basis for one exemption from the Act may not be present if their
representations mean that their present intentions are to hold such shares
for a minimum capital gains period under the tax statutes, for a deferred
sale, for a market rise, for a sale if the market does not rise, or for a
year or any other fixed period in the future.
14
6.5 Understand that such Securities must be held indefinitely unless
subsequently registered under the Act and qualified under the Law or an
exemption from such registration and such qualification is available, and
that, except as set forth in Section 7 below, ZiaSun is under no obligation
to effect such registration or qualification or to assure the availability
of any such exemption.
6.6 Are aware of Rule 144 promulgated under the Act which permits
limited public resale of the Securities if it is acquired in a non-public
offering subject to the satisfaction of certain conditions, including,
among other things: the availability of certain public information about
ZiaSun, the resale occurring not less than one (1) year after he or she
purchased and completed payment for the Securities to be sold, the sale
being made on the public market through a broker in an unsolicited
"broker's transaction" or to a "market maker" and the amount of the
Securities sold during any three-month period not exceeding specified
limitations (generally, one percent (1%) of all Common Stock outstanding);
except that such conditions need not be met by a person who is not an
affiliate of ZiaSun at the time of sale and has not been an affiliate for
the preceding three (3) months, if the Securities to be sold have been
beneficially owned by such person for at least two (2) years prior to their
sale. The Common Stock may not be publicly traded or ZiaSun may not be
satisfying the current public information requirements of Rule 144 at the
time a Shareholder wishes to sell the Securities; and thus, they may be
precluded from selling the Securities under Rule 144 even though the
minimum holding period may have been satisfied.
6.7 Further understand that in the event the requirements of Rule 144
are not met, registration under the Act, compliance with Regulation A or
some other registration exemption will be required for any disposition of
the Securities; and that, although Rule 144 is not exclusive, the
Commission has expressed its opinion that persons proposing to sell private
placement Securities other than in a registered offering and other than
pursuant to Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such
offers or sales and that such persons and the brokers who participate in
such transactions do so at their own risk.
6.8 Understand that the certificates evidencing the Securities will be
imprinted with legends in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
FOR THESE SHARES UNDER SUCH ACT OR AN OPINION OF THE COMPANY'S COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
15
7. Compliance with Securities Act.
7.1 Reports Under the 1934 Act. With a view to making available to the
Shareholder the benefits of certain rules and regulations promulgated by
the SEC that may permit the Shareholder to sell shares of ZiaSun's stock to
the public without registration, ZiaSun agrees to:
7.1.1 Make and keep adequate current public information available, as
those terms are understood and defined in Rule 144, at all times subsequent
to the Closing; and
7.1.2 Furnish to any Shareholder upon request, a written statement by
ZiaSun that it has complied with the reporting requirements of Rule 144,
and of the Act and the 1934 Act, a copy of the most recent annual or
quarterly report of ZiaSun, and such other reports and documents so filed
by ZiaSun as may be reasonably requested in availing the Shareholder of any
rule or regulation promulgated by the Commission that allows the selling of
any such securities without registration.
8. Expenses. Except as provided to the contrary herein, ZiaSun and Internet
Services shall pay all of its own costs and expenses incurred with respect to
the negotiation, execution and delivery of this Agreement.
9. Severability. If any provision of this Agreement, or the application
thereof, shall for any reason and to any extent be invalid or unenforceable, the
remainder of this Agreement and application of such provision to other persons
or circumstances shall be interpreted so as best to reasonably effect the intent
of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
which will achieve, to the extent possible, the economic, business and other
purposes of the void or unenforceable provision.
10. Entire Agreement. This Agreement, the exhibits hereto, the documents
referenced herein, and the exhibits thereto, constitute the entire understanding
and agreement of the parties hereto with respect to the subject matter hereof
and thereof and supersede all prior and contemporaneous agreements or
understandings, inducements or conditions, express or implied, written or oral,
between the parties with respect hereto and thereto. The expressed terms hereof
control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original as against any party whose
signature appears thereon and all of which together shall constitute one and the
same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as signatories.
12. Broker's or Finder's Fees. The parties hereto represent that no other
broker has brought about this Agreement, and no other finder's fee has been paid
or is payable by either party, except for the broker or finder whose name is set
forth on Exhibit 12, and whose fee shall be paid by ZiaSun. Each party hereto
shall indemnify and hold the other harmless against any and all claims, losses,
liabilities or expenses which may be asserted against it as a result of its
dealings, arrangements or agreements with any other broker.
16
13. Other Remedies. Any and all remedies herein expressly conferred upon a
party shall be deemed cumulative with and not exclusive of any other remedy
conferred hereby or by law on such party, and the exercise of any one remedy
shall not preclude the exercise of any other.
14. Amendment and Waivers. Any term or provision of this Agreement may be
amended, and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only by a writing signed by the party to be bound thereby. The waiver by a party
of any breach hereof for default in payment of any amount due hereunder or
default in the performance hereof shall not be deemed to constitute a waiver of
any other default or succeeding breach or default.
15. Survival of Agreements. All covenants, agreements, representations and
warranties made herein shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
16. No Waiver. The failure of any party to enforce any of the provisions
hereof shall not be construed to be a waiver of the right of such party
thereafter to enforce such provisions.
17. Attorneys' Fees. Should suit be brought to enforce or interpret any
part of this Agreement, the prevailing party shall be entitled to recover, as an
element of the costs of suit and not as damages, reasonable attorneys' fees to
be fixed by the court (including without limitation, costs, expenses and fees on
any appeal).
18. Notices. Whenever any party hereto desires or is required to give any
notice, demand, or request with respect to this Agreement, each such
communication shall be in writing and shall be effective only if it is delivered
by personal service or mailed, United States certified mail, postage prepaid,
addressed as follows:
If to Internet Services, addressed to:.
-------------------------------------
Xx. Xxxxxxx X. Xxx, , President
Asia Internet Xxxxxxxx.xxx, Inc.
0000 Xxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17
With a copy to Internet Services Counsel, addressed to:
------------------------------------------------------
Xx. Xxx X. Xxxxxx
Attorney at Law
X.X. Xxxxx Building
Suite 901
00 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to ZiaSun, addressed to:
Xx. Xxxxx X. Xxxxxxx
President and CEO
ZiaSun Technologies, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to ZiaSun counsel, addressed to:
-------------------------------------------
Xx. Xxxxxx X. Xxxxxxx
Wenthur & Chachas
0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Such communications shall be effective when they are received by the
addressee thereof; but if sent by certified mail in the manner set forth above,
they shall be effective five (5) days after being deposited in the United States
mail. Any party may change its address for such communications by giving notice
thereof to the other party in conformity with this Section.
19. Time. Time is of the essence of this Agreement.
20. Construction of Agreement. This Agreement has been negotiated by the
respective parties hereto and their attorneys and the language hereof shall not
be construed for or against any party. A reference in this Agreement to any
Section shall include a reference to every Section the number of which begins
with the number of the Sections to which reference is specifically made (e.g., a
reference to Section 5.8 shall include a reference to Sections 5.8.1 and
5.8.2.1). The titles and headings herein are for reference purposes only and
shall not in any manner limit the construction of this Agreement which shall be
considered as a whole.
21. No Joint Venture. Nothing contained in this Agreement shall be deemed
or construed as creating a joint venture or partnership between any of the
parties hereto. No party is by virtue of this Agreement authorized as an agent,
employee or legal representative of any other party. No party shall have the
power to control the activities and operations of any other and their status is,
and at all times, will continue to be, that of independent contractors with
respect to each other. No party shall have any power or authority to bind or
commit any other. No party shall hold itself out as having any authority or
relationship in contravention of this Section.
18
22. Further Assurances. Each party agrees to cooperate fully with the other
parties and to execute such further instruments, documents and agreements and to
give such further written assurances, as may be reasonably requested by any
other party, to better evidence and reflect the transactions described herein
and contemplated hereby, and to carry into effect the intents and purposes of
this Agreement.
23. Absence of Third Party Beneficiary Rights. No provisions of this
Agreement are intended nor shall be interpreted to provide or create any
third-party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, shareholder, or partner of any party hereto or any other
person; unless specifically provided otherwise herein, and, except as so
provided, all provisions hereof shall be personal solely between the parties to
this Agreement.
24. Parties in Interest. Nothing herein expressed or implied is intended or
shall be construed to confer upon or to give any person, firm or corporation
other than the parties hereto any rights or remedies under or by reason hereof.
25. Binding upon Successors and Assigns. Subject to, and unless otherwise
provided in, this Agreement, each and all of the covenants, terms, provisions,
and agreements contained herein shall be binding upon, and inure to the benefit
of, the successors, executors, heirs, representatives, administrators and
assigns of the parties hereto.
26. Governing Law. It is the intention of the parties hereto that the
internal laws of the State of California (irrespective of its choice of law
principles) shall govern the validity of this Agreement, the construction of its
terms, and the interpretation and enforcement of the rights and duties of the
parties hereto.
27. Negotiated Agreement. This Agreement has been negotiated by the parties
hereto and their respective legal counsel, and the language hereof shall not be
construed for or against any such party.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
ZIASUN TECHNOLOGIES, INC.
A Nevada Corporation
Dated: 05/24/2000 /s/ D. Xxxxx Xxxxx
------------------------------
By: D. Xxxxx Xxxxx
Its: Chairman
Dated: 22 May 2000 /s/ Xxxxx X. Xxxxxxx
------------------------------
By: Xxxxx X. Xxxxxxx
Its: President and CEO
INTERNET MERGER CORP.
A Maryland Corporation
Dated: 22 May 2000 /s/ Xxxxx X. Xxxxxxx
------------------------------
By: Xxxxx X. Xxxxxxx
Its: President and Secretary
ASIA INTERNET XXXXXXXX.XXX, INC.
A Maryland Corporation
Dated: 5/25/00 /s/ Xxxxxxx X. Xxx
------------------------------
By: Xxxxxxx X. Xxx
Its: President
Dated: 5/25/00 /s/ Xxxx XxXxxxxx
------------------------------
By: Xxxx XxXxxxxx
Its: Secretary
SHAREHOLDER
Dated: 5/25/00 /s/ Xxxxxxx X. Xxx
------------------------------
Xxxxxxx X. Xxx
20
LIST OF EXHIBITS
----------------
EXHIBIT 2 Schedule of Exceptions for ASIA INTERNET SERVICES
EXHIBIT 2.2 Shares Issued and Outstanding of ASIA INTERNET
SERVICES
EXHIBIT 2.6.1 Intellectual Property Right Agreements of ASIA
INTERNET SERVICES
EXHIBIT 2.6.2 Software and Proprietary Programs of ASIA INTERNET
SERVICES
EXHIBIT 2.11 Material Agreements, Contracts and Obligations of
ASIA INTERNET SERVICES
EXHIBIT 2.13 Licenses, Permits and Authorizations Related to ASIA
INTERNET SERVICES
EXHIBIT 2.16 Material Liabilities of ASIA INTERNET SERVICES
EXHIBIT 2.17 Audited Financial Statements of ASIA INTERNET SERVICES
EXHIBIT 2.18 Tax Reports and Returns of ASIA INTERNET SERVICES
EXHIBIT 12 Brokers
EXHIBIT 2
---------
SCHEDULE OF EXCEPTIONS FOR ASIA INTERNET SERVICES
--------------------------------------------------------------------------------
NONE
EXHIBIT 2.2
-----------
SHARES ISSUED AND OUTSTANDING OF ASIA INTERNET SERVICES
--------------------------------------------------------------------------------
Shareholder Name Shares Owned
-------------------------------------------------------
Xxxxxxx X. Xxx 100
EXHIBIT 2.6.1
-------------
INTELLECTUAL PROPERTY RIGHT AGREEMENTS OF ASIA INTERNET SERVICES
--------------------------------------------------------------------------------
NONE
EXHIBIT 2.6.2
-------------
SOFTWARE AND PROPRIETARY PROGRAMS OF ASIA INTERNET SERVICES
--------------------------------------------------------------------------------
NONE
EXHIBIT 2.11
------------
MATERIAL AGREEMENTS, CONTRACTS AND OBLIGATIONS OF ASIA INTERNET SERVICES
--------------------------------------------------------------------------------
NONE
EXHIBIT 2.13
------------
LICENSES, PERMITS AND AUTHORIZATIONS RELATED TO ASIA INTERNET SERVICES
--------------------------------------------------------------------------------
NONE
EXHIBIT 2.16
------------
MATERIAL LIABILITIES OF ASIA INTERNET SERVICES
--------------------------------------------------------------------------------
NONE
EXHIBIT 2.17
------------
AUDITED FINANCIAL STATEMENTS
--------------------------------------------------------------------------------
TO BE PROVIDED WITHIN 60 DAYS OF CLOSING
EXHIBIT 2.18
------------
TAX REPORTS AND RETURNS OF ASIA INTERNET SERVICES
--------------------------------------------------------------------------------
SEE ATTACHED
EXHIBIT 12
----------
BROKERS
--------------------------------------------------------------------------------
With the exception of the shares issued to the Shareholder of ASIA INTERNET
SERVICES as set forth herein, no brokerage of finders fees in the form of cash
or securities were paid to any party or person in connection with the
acquisition.
