EX-2.1
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of May 4,
2004, by and among FREESTAR TECHNOLOGY CORPORATION, a Nevada
corporation (the "Buyer"), UNIPAY, INC., a North Carolina corporation
(the "Seller"), and UNICOMP, INC., a Colorado corporation (the
"Stockholder").
WITNESSETH:
WHEREAS, the Seller, among other operations, provides or acts as
an electronic gateway between sellers of goods and services and
processors of payments for those goods and services made via credit
cards and debit cards, presently located at the Seller's facility in
Murphy, North Carolina (the "Business");
WHEREAS, the Stockholder is the record and beneficial owner of
all of the issued and outstanding capital stock of the Seller; and
WHEREAS, the Seller desires to sell all of its assets and
properties used in connection with the operation of the Business to
the Buyer, and the Buyer desires to purchase such assets and
properties, and the related operations of the Business as a going
concern, all upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. ACQUIRED ASSETS.
2.1 The Assets. Subject to the terms and conditions of
this Agreement, on and as of the date hereof, the Seller is selling,
transferring and delivering to the Buyer, and the Buyer is purchasing
and receiving from the Seller, all of the assets and properties of
the Seller used in connection with the operation of the Business and
which are listed on Schedule 1.1 as same are constituted on the date
hereof (collectively, the "Assets"), and which include:
(a) All accounts receivable, notes receivable and
other rights of the Business to receive payment for goods sold and/or
services rendered after the Closing;
(b) All machinery, equipment, inventory and supplies
owned by the Seller and used in the operation of the Business,
including but not limited to those items listed on Schedule 1.1
annexed hereto (the "Fixed Assets");
(c) All rights under executory contracts and
agreements relating to the Business between the Seller, its
customers, merchants and other parties relating to ongoing and/or
future sales or services to be rendered to such customers, including
without limitation, the Paymentech contract;
(d) All amounts held by the Seller relating to the
Business as merchant reserves or deposits (i) on products to be made
or delivered or services hereafter to be rendered, or (ii) to be
released and retained upon customer acceptance or approval of
products previously shipped or services previously rendered; and
(e) All customer lists, supplier lists, operating
manuals, computer software, trademarks, trade names, trade secrets,
technical information, and other such knowledge and information
constituting the "know-how" of the Seller relating to the Business,
and the good will of the Seller relating to the Business;
(f) All books, records, printouts, drawings, data,
files, notes, notebooks, correspondence and memoranda relating to the
foregoing Assets.
2.2 Excluded Assets. Anything elsewhere contained in this
Agreement to the contrary notwithstanding, the Seller is not selling,
assigning or transferring, and the Buyer is not purchasing or
acquiring, any cash (other than amounts representing merchant
reserves or deposits), marketable securities, rights in real estate
or operations of the Seller which do not constitute the Business.
2.3 Movement of Assets. Buyer hereby accepts delivery of
the Assets at the Seller's place of business set forth in Section
11.2(a) below, and the Buyer agrees that it will, at its expense,
move the Assets out of the Seller's premises within thirty (30) days
after the date hereof.
3. NO ASSUMPTION OF LIABILITIES.
3.1 Disclaimer of Liabilities. The Buyer does not and
will not assume, and hereby expressly disclaims any assumption of,
any debts, liabilities or obligations (absolute or contingent) of any
kind of the Seller, including but not limited to (a) accounts payable
and lease obligations arising or relating to periods prior to the
date hereof, (b) indebtedness for money borrowed, (c) income taxes,
sales taxes, payroll taxes, withholding taxes, franchise taxes, and
other taxes, including but not limited to any taxes which may arise
out of or be assessable in respect of the transactions contemplated
by this Agreement, (d) claims, litigation, liabilities or obligations
arising out of or relating to the operations of the Seller prior to
the date hereof, including, without limitation, the ROI Litigation
(as such term is defined in Section 7.1(a)), or any products
manufactured or sold or services rendered by the Seller prior to the
date hereof, (e) liabilities or obligations of any kind in respect of
any past or present stockholders, directors, officers, employees or
consultants of the Seller, whether under any contract or agreement,
pursuant to any pension plan or employee benefit or welfare plan, or
otherwise, (f) liabilities or obligations relating to recapture of
any depreciation deduction or investment tax credit of the Seller,
and/or (g) any other liabilities or obligations of or relating to the
Seller in any manner whatsoever.
4. PURCHASE PRICE.
4.1 Consideration to the Seller.
(a) The purchase price for the Assets (the
"Consideration") shall be the sum of (i) One Hundred Fifty Thousand
($150,000) Dollars, which will be paid to the Seller on or before
July 1, 2004, by wire transfer to an account designated by the Seller
or by certified or bank cashier's check, and (ii) 10,000,000 shares
of common stock (the "Shares") of the Buyer, which Shares have an
agreed value of $1,000,000, issued in the name of the Stockholder and
delivered to the Stockholder on the date hereof.
(b) To the extent that the Seller has not already
paid its existing debts and liabilities out of its cash on hand, the
Seller will, on the date it receives the Consideration paid pursuant
to Section 3.1(a)(i) above apply a portion thereof to the payment of
its outstanding undisputed debts and liabilities incurred in
connection with the ownership and operation of the Assets, so that
such debts and liabilities are paid in full.
4.2 Allocation of Consideration. The Consideration
specified in Section 3.1 above shall be allocated, as among the
Assets, in accordance with Schedule 3.2 annexed hereto, and the
parties will report these transactions (including, without
limitation, for tax purposes) in accordance with such allocation.
4.3 Sales Taxes. To the extent that any sales or use
taxes may be payable in respect of the transactions pursuant to this
Agreement, such sales and use taxes shall be reported and paid by the
Seller in a timely manner.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE STOCKHOLDER.
In connection with the sale of the Assets to the Buyer, and
except as set forth in the Seller/Stockholder Exception Schedule
attached hereto at Schedule 4, the Seller and the Stockholder hereby
jointly and severally represent and warrant to the Buyer as follows:
5.1 Organization, Good Standing and Qualification. The
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of North Carolina, with full
corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby, and to own
its assets and conduct its business as owned and conducted on the
date hereof. The Seller is not required to be qualified as a foreign
corporation under the laws of any jurisdiction other than the State
of North Carolina.
5.2 Authorization of Agreement. The execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby by the Seller has been duly and
validly authorized by the Board of Directors of the Seller and by the
Stockholder (as the sole stockholder of the Seller). No further
corporate authorization is required on the part of the Seller to
consummate the transactions contemplated hereby.
5.3 Valid and Binding Agreements. This Agreement, and the
Xxxx of Sale, the Non-Competition Agreement and the Registration
Rights Agreement (as such terms are hereinafter defined), constitute
the legal, valid and binding obligations of the Seller and the
Stockholder, as applicable, enforceable against the Seller and the
Stockholder, as applicable, in accordance with their respective terms.
5.4 No Breach of Statute or Contract. Neither the
execution and delivery of this Agreement by the Seller and the
Stockholder, nor compliance with the terms and provisions of this
Agreement on the part of the Seller and the Stockholder, will: (a)
violate any statute or regulation of any governmental authority,
domestic or foreign, affecting the Seller, the violation of which
would result in a material loss or injury to the Buyer; (b) to the
knowledge of the Seller and the Stockholder, require the issuance of
any authorization, license, consent or approval of any federal or
state governmental agency or any other person; or (c) conflict with
or result in a breach of any of the terms, conditions or provisions
of the Seller's certificate of incorporation or by-laws or any
judgment, order, injunction, decree, agreement or instrument to which
the Seller or the Stockholder is a party, or by which the Seller or
the Stockholder is bound, or constitute a default thereunder.
5.5 Subsidiaries and Investments. The Seller does not
own, directly or indirectly, any stock or other equity securities of
any corporation or entity, or have any direct or indirect equity or
ownership interest in any person, firm, partnership, corporation,
venture or business other than the business conducted by the Seller.
5.6 Financial Information.
(a) Attached hereto at Schedule 4.6(a) is summary
financial information concerning the assets and operations of the
Business at February 28, 2003 and February 29, 2004.
(b) Since February 29, 2004, (i) the Business has
been operated solely in the normal course, (ii) there has been no
material adverse change in the Assets, financial condition or
operations of the Business, (iii) the Seller has not incurred any
material obligation or liability relating to the Business except in
the normal course of business, and (iv) the Seller has not
experienced any material adverse change relating to the Business in
its relationships with customers and/or suppliers.
(c) The Seller and the Stockholder acknowledge that
the Buyer must report the transaction contemplated by this Agreement
to the U.S. Securities and Exchange Commission (the "SEC"). The
Seller and the Stockholder will provide to the Buyer usual and
customary financial information and access to the accounting books
and records reasonably sufficient to enable the preparation of
audited financial statements regarding the Seller's payment
processing business of the Seller in conformity with Section 3-05 of
Regulation S-X under the Securities Act of 1933, as amended.
5.7 Tax Matters.
(a) The Seller has, to the date hereof, filed all tax
reports and tax returns required to be filed by the Seller, and the
Seller and/or the Stockholder (as applicable) has paid all taxes,
assessments and other impositions respecting the Seller and its
income as and to the extent required by applicable law. Without
limitation of the foregoing, the Seller has paid all payroll and
unemployment taxes required to be paid by the Seller on or prior to
the date hereof, and has remitted (and will hereafter remit, as and
when due) all sales taxes required to be remitted by the Seller.
(b) There are no audits pending with respect to any
federal, state or local tax reports or tax returns of the Seller, and
no waiver of statutes of limitations have been given or requested
with respect to any tax years or tax filings of the Seller.
5.8 Title to the Assets. The Seller has and owns good and
marketable title to all of the Assets, free and clear of all liens,
pledges, claims, security interests and encumbrances of every kind
and nature, except as set forth in Schedule 4.8 attached hereto.
Substantially all of the Fixed Assets are listed in Schedule 1.1, all
of which are in good operating condition and repair (reasonable wear
and tear excepted), are adequate for their use in the Seller's
business as presently conducted.
5.9 Inventories and Receivables.
(a) All supplies and other inventories of the
Business are of a quality and quantity which are useable in the
ordinary course of the Business.
(b) All of the accounts receivable included in the
Assets represent bona fide sales made or services rendered by the
Seller prior to the date hereof. To the best of the Seller's and the
Stockholder's knowledge, no offsets, deductions or claims have been
asserted against or in respect of any of such accounts receivable.
5.10 Legal Compliance. The Seller is in compliance in all
material respects with all laws, statutes, regulations, rules and
ordinances applicable to the conduct of the Business (including,
without limitation, laws, regulations and ordinances relating to
protection of the environment and the use, handling and disposal of
hazardous substances), except as to any failure of compliance which
would not have a material adverse effect, and has in full force and
effect all licenses, permits and other authorizations required, to
the knowledge of the Seller, for the conduct of its business as
presently constituted; and the Seller has not received notice of any
default or violation in respect of or under any of the foregoing.
5.11 Real Property. The Seller does not own real estate or
any interest therein, and has heretofore occupied its business
premises on a rental basis.
5.12 Employees. The Seller is not a party to or bound by
any collective bargaining agreement, employment agreement, consulting
agreement or other commitment for the employment or retention of any
person. The Seller has not had any material labor difficulty in the
past two (2) years.
5.13 Employee Benefits. The Seller does not maintain and
is not required to make any contributions to any pension, profit-
sharing, retirement, deferred compensation or other such plan or
arrangement for the benefit of any employee, former employee or other
person.
5.14 Contracts and Commitments. The Seller does not have
any material written contracts or commitments relating to the
Business which are not specifically disclosed in any of the Schedules
to this Agreement, and, to the knowledge of the Seller, no event,
cause or condition exists or has occurred which would constitute a
default under any such material contract, commitment or obligation.
5.15 Litigation. There is no pending or, to the best
knowledge of the Seller and the Stockholder, threatened litigation,
arbitration, administrative proceeding or other legal action or
proceeding against the Seller or relating to the Business. Neither
the Seller nor the Stockholder is aware of any event, cause or
condition which might reasonably give rise to or properly form the
basis of any such suit, action, arbitration or proceeding. The
Seller is not currently engaged in any legal action to recover any
sums of money due to the Seller or damages sustained by the Seller.
5.16 Intellectual Property. To its knowledge, the Seller
has the valid right to utilize any and all trademarks, trade names,
trade secrets and other intellectual property utilized in the
Business, and has not received notice of any claimed infringement of
such intellectual property with the rights or property of any other
person.
5.17 Investment Covenant. The Seller is receiving the
Shares hereunder for its own account for investment, and not with a
view to the resale or distribution thereof in violation of any
federal or state securities laws. The Seller understands that the
certificate(s) representing the Shares will bear a customary legend
under the Securities Act of 1933, as amended, restricting the resale
thereof in the absence of a subsequent registration of the resale of
the Shares or an exemption from such registration requirements.
5.18 Accuracy of Due Diligence Materials. All documents
provided to the Buyer by the Seller pursuant to or in connection with
this Agreement, including due diligence materials, are true and
accurate in all material respects and do not contain any untrue
statement of a material fact or omit to state a material fact
required to make the statement made, in light of the circumstances
under which they are made, not misleading.
6. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
In connection with the Seller's sale of the Assets to the
Buyer, the Buyer hereby represents and warrants to the Seller and the
Stockholder as follows:
6.1 Organization, Good Standing and Ownership. The Buyer
is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada, with all necessary
power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby.
6.2 Authorization of Agreement. The execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby by the Buyer has been duly and
validly authorized by the Board of Directors of the Buyer. No
further corporate authorization nor third party authorization or
consent is required on the part of the Buyer to consummate the
transactions contemplated hereby.
6.3 Valid and Binding Agreement. This Agreement, and the
Registration Rights Agreement (as such term is hereinafter defined),
constitute the legal, valid and binding obligations of the Buyer,
enforceable against the Buyer in accordance with their respective terms.
6.4 No Breach of Statute or Contract. Neither the
execution and delivery of this Agreement and/or the Registration
Rights Agreement by the Buyer, nor compliance with the terms and
provisions of this Agreement and/or the Registration Rights Agreement
on the part of the Buyer, will: (a) violate any statute or
regulation of any governmental authority, domestic or foreign,
affecting the Buyer; (b) require the issuance of any authorization,
license, consent or approval of any federal or state governmental
agency; or (c) conflict with or result in a breach of any of the
terms, conditions or provisions of any judgment, order, injunction,
decree, note, indenture, loan agreement or other agreement or
instrument to which the Buyer is a party, or by which the Buyer is
bound, or constitute a default thereunder.
6.5 The Shares. The issuance of the Shares hereunder has
been duly authorized by the Board of Directors of the Buyer, and,
when issued, the Shares will be validly issued, fully paid, non-
assessable and free of any preemptive rights.
6.6 SEC Information. The Buyer has delivered or made
available to the Seller and Stockholder true and complete copies of
the Buyer's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 2003, as amended, and Quarterly Reports on Form 10-QSB for
the quarterly periods ended September 30, 2003 and December 31, 2003
(the "SEC Documents"). None of the SEC Documents, as of their
respective dates, contained any untrue statement of a material fact
or omit to state material facts necessary in order to make the
statements contained therein not misleading. The financial
statements included in the SEC Documents fairly present the financial
position of the Buyer at their respective dates and the results of
its operations and cash flows for the periods then ended, in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods covered by such statements.
The Buyer has not filed, and nothing has occurred with respect to
which the Buyer would be required to file, any Current Report on Form
8-K since December 31, 2003, other than the Buyer's Form 8-K/A, dated
October 15, 2003 and filed March 2, 2004, concerning an amendment to
the terms of the Buyer's previous acquisition of shares of TransAxis, Inc.
6.7 Disclosure. The Buyer has received all items of due
diligence requested regarding the Business from the Seller and the
Stockholder and has received answers to all questions and inquiries
regarding same.
7. CLOSING.
7.1 Place and Date of Closing. The consummation of the
transactions contemplated by this Agreement (the "Closing") shall
take place at the offices of the Buyer's counsel in New York, New
York, simultaneous with the execution and delivery hereof on the date
first set forth above (the "Closing Date").
7.2 Actions at Closing. On the Closing Date, simultaneous
with the Closing, (a) the Buyer is paying to the Seller the
Consideration provided in Section 3.1(a)(ii) above, (b) the Seller is
executing and delivering to the Buyer a Xxxx of Sale in respect of
the Assets (the "Xxxx of Sale"), together with such further
conveyancing documents in respect of the Assets (including but not
limited to endorsements of title documents, as appropriate) as may be
necessary or appropriate in order to effect the transfer of the
Assets to the Buyer, (c) the Buyer and the Stockholder are executing
and delivering to one another a Non-Competition and Non-Disclosure
Agreement (the "Non-Competition Agreement"), (d) the Buyer and the
Stockholder are executing and delivering to one another a
Registration Rights Agreement (the "Registration Rights Agreement"),
and (e) the Seller is delivering to the Buyer a correct and complete
list of all liabilities of the Seller relating to the Business as of
the Closing Date (setting forth names, addresses and amounts owed).
8. INDEMNIFICATION.
8.1 General.
(a) The Seller and the Stockholder shall jointly and
severally defend, indemnify and hold harmless the Buyer from, against
and in respect of any and all claims, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorneys' fees, that
the Buyer may incur, sustain or suffer ("Losses") as a result of (i)
any breach of, or failure by the Seller or the Stockholder to
perform, any of the representations, warranties or covenants of the
Seller or the Stockholder contained in this Agreement, (ii) any
failure by the Seller to pay or perform when due any of its costs,
expenses, obligations, claims and liabilities in respect of the
Assets for periods prior to the Closing Date, (iii) any failure by
the parties to comply, to the extent applicable, with the bulk
transfers law under the North Carolina Uniform Commercial Code
(provided that nothing herein contained shall be deemed to
acknowledge the applicability of such bulk transfers law to the
transactions hereunder), and/or (iv) the action captioned Return on
Investment Corporation v. UniComp, Inc., and any claims, suits,
proceedings or other actions related thereto (the "ROI Litigation").
(b) The Buyer shall defend, indemnify and hold
harmless the Seller and the Stockholder from, against and in respect
of any and all Losses, that the Seller or the Stockholder may incur,
sustain or suffer as a result of any breach of, or failure by the
Buyer to (i) perform any of the representations, warranties or
covenants of the Buyer contained in this Agreement and (ii) pay all
costs, expenses, obligations and claims relating to the Assets and
the Business for periods after the Closing Date.
8.2 Limitations on Certain Indemnity.
(a) Notwithstanding any other provision of this
Agreement to the contrary, except as specified in Section 7.2(d),
neither the Seller nor the Stockholder shall be liable to the Buyer
with respect to Losses unless and until the aggregate amount of all
Losses incurred by the Buyer shall exceed the sum of $25,000 (the
"Basket"). The Seller and the Stockholder shall thereafter be
jointly and severally liable for all Losses in excess of the Basket,
provided that the Seller's and the Stockholder's maximum aggregate
liability in respect of all Losses shall not, except as specified in
Section 7.2(d) and with respect to any Losses involving proven fraud
by the Seller or the Stockholder, in any event exceed the limitations
set forth in Section 7.2(b) below.
(b) Except as specified in Section 7.2(d) and with
respect to any Losses involving proven fraud by the Seller or the
Stockholder, the Seller and the Stockholder shall not be required, in
the aggregate, to pay indemnification hereunder in an aggregate
amount equal to the lesser of (i) $150,000, plus the Stockholder's
net proceeds from the sale of the Shares, if the Shares have been
sold or, if not, then the fair market value of the Shares, based on
the average closing price of the Shares over the preceding five
consecutive trading days, at the time the indemnification is to be
satisfied, or (ii) One Million One Hundred Fifty Thousand Dollars
($1,150,000).
(c) The Buyer shall be entitled to indemnification by
the Seller and the Stockholder for Losses only in respect of claims
for which notice of claim shall have been given to the Seller or the
Stockholder on or before April 15, 2005.
(d) The limitations set forth in subsections (a), (b)
and (c) of this Section 7.2 shall not apply to any claim of the Buyer
with respect to the ROI Litigation.
8.3 Claims for Indemnity. Whenever a claim shall arise
for which any party shall be entitled to indemnification hereunder,
the indemnified party shall notify the indemnifying party in writing
within thirty (30) days of the indemnified party's first receipt of
notice of, or the indemnified party's obtaining actual knowledge of,
such claim, and in any event within such shorter period as may be
necessary for the indemnifying party or parties to take appropriate
action to resist such claim. Such notice shall specify all facts
known to the indemnified party giving rise to such indemnity rights
and shall estimate (to the extent reasonably possible) the amount of
potential liability arising therefrom. If the indemnifying party
shall be duly notified of such dispute, the parties shall attempt to
settle and compromise the same or may agree to submit the same to
arbitration or, if unable or unwilling to do any of the foregoing,
such dispute shall be settled by appropriate litigation, and any
rights of indemnification established by reason of such settlement,
compromise, arbitration or litigation shall promptly thereafter be
paid and satisfied by those indemnifying parties obligated to make
indemnification hereunder.
8.4 Right to Defend. If the facts giving rise to any
claim for indemnification shall involve any actual or threatened
action or demand by any third party against the indemnified party or
any of its affiliates, the indemnifying party or parties shall be
entitled (without prejudice to the indemnified party's right to
participate at its own expense through counsel of its own choosing),
at their expense and through a single counsel of their own choosing,
to defend or prosecute such claim in the name of the indemnifying
party or parties, or any of them, or if necessary, in the name of the
indemnified party. In any event, the indemnified party shall give
the indemnifying party advance written notice of any proposed
compromise or settlement of any such claim. If the remedy sought in
any such action or demand is solely money damages, the indemnifying
party shall have fifteen (15) days after receipt of such notice of
settlement to object to the proposed compromise or settlement, and if
it does so object, the indemnifying party shall be required to
undertake, conduct and control, though counsel of its own choosing
and at its sole expense, the settlement or defense thereof, and the
indemnified party shall cooperate with the indemnifying party in
connection therewith.
9. POST-CLOSING EVENTS.
9.1 Continuing Seller Liabilities. To the extent that the
Seller shall defer payment beyond the Closing Date of any of its
liabilities existing as of the Closing Date, and with respect to any
liabilities of the Seller which may arise and become due and payable
subsequent to the Closing Date, the Seller shall timely pay or
satisfy such liabilities.
9.2 Movement of Assets. The Seller shall cooperate with
the Buyer in all reasonable respects (but without requirement for the
Seller to incur any material expense) to permit the Buyer to remove
the Assets from the Seller's premises on and after the Closing Date
and, to transfer the servicing of its customers to the Buyer's Systems.
9.3 Corporate Name. From and after the date hereof, the
Seller shall cease and desist from any and all further use of the
name "Smokey Mountain Processing" or any confusingly similar name,
other than for purposes of filing routine corporate reports, tax
returns and other such items.
9.4 Operation of Business. Nothing contained in this
Agreement shall be deemed to restrict the Buyer's sole and absolute
discretion to operate the Assets at all times following the Closing Date.
9.5 Accounts Receivable Collections. To the extent that,
at any time from and after the Closing Date, the Seller shall receive
payment of any accounts receivable which accrued and were due and
payable prior to the Closing Date and which were included in the
Assets, the Seller shall immediately turn same over to the Buyer in
the form received (subject to any necessary endorsement), and pending
such delivery, shall hold same in trust for the benefit of the
Seller. To the extent that, at any time from and after the Closing
Date, the Buyer shall receive payment of any accounts receivable
which accrued and were due and payable before the Closing Date, the
Buyer shall immediately turn same over to the Seller in the form
received (subject to any necessary endorsement), and pending such
delivery, shall hold same in trust for the benefit of the Seller.
9.6 Further Assurances. From time to time from and after
the Closing Date, the parties will execute and deliver to one another
any and all further agreements, instruments, certificates and other
documents as may reasonably be requested by any other party in order
more fully to consummate the transactions contemplated hereby, and to
effect an orderly transition of the business being acquired by the
Buyer hereunder.
9.7 Costs of Operation. As to periods from and after the
Closing Date, the Buyer shall pay all costs and expenses associated
with or arising from the use of the Assets in the operation of the
Business.
10. COSTS.
10.1 Finder's or Broker's Fees. Each of the Buyer, the
Seller and the Stockholder represents and warrants that neither they
nor any of their respective affiliates have dealt with any broker or
finder in connection with any of the transactions contemplated by
this Agreement, and no broker or other person is entitled to any
commission or finder's fee in connection with any of these
transactions.
10.3 Expenses. The Buyer, the Seller and the Stockholder
shall each pay all costs and expenses incurred or to be incurred by
them, respectively, in negotiating and preparing this Agreement and
in closing and carrying out the transactions contemplated by this
Agreement.
11. FORM OF AGREEMENT.
11.1 Effect of Headings. The Section headings used in
this Agreement and the titles of the Schedules hereto are included
for purposes of convenience only, and shall not affect the
construction or interpretation of any of the provisions hereof or of
the information set forth in such Schedules.
11.2 Entire Agreement; Waivers. This Agreement and the
other agreements and instruments referred to herein constitute the
entire agreement between the parties pertaining to the subject matter
hereof, and supersede all prior agreements or understandings as to
such subject matter. No party hereto has made any representation or
warranty or given any covenant to the other except as set forth in
this Agreement, the Schedules hereto, and the other agreements and
instruments referred to herein. No waiver of any of the provisions
of this Agreement shall be deemed, or shall constitute, a waiver of
any other provisions, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
11.3 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument.
12. PARTIES.
12.1 Parties in Interest. Nothing in this Agreement,
whether expressed or implied, is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other
than the parties to it and their respective heirs, executors,
administrators, personal representatives, successors and permitted
assigns, nor is anything in this Agreement intended to relieve or
discharge the obligations or liability of any third persons to any
party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over or against any party
to this Agreement.
12.2 Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be
deemed to have been duly given on the date of service if served
personally on the party to whom notice is to be given, on the first
day after delivery thereof to a recognized overnight delivery service
for next day delivery with all charges prepaid or billed to the
account of the sender, or on the third day after mailing if mailed to
the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, and properly addressed as follows:
(a) If to the Seller and/or the Stockholder:
UniComp, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxx
Chief Executive Officer
with a copy to:
Durham Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
(b) If to the Buyer:
FreeStar Technology Corporation
Calle Fantino Falco, X.X. Xxxx Bldg., 2nd Fl.
Santo Xxxxxxx, Dominican Republic
Attention: Xxxx Xxxx, President & Chief
Executive Officer
with a copy to:
Xxxxxxxxx Traurig, LLP
MetLife Building
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
or to such other address as any party shall have specified by notice
in writing given to the other parties.
13. MISCELLANEOUS.
13.1 Amendments and Modifications. No amendment or
modification of this Agreement or any Schedule hereto shall be valid
unless made in writing and signed by the party to be charged therewith.
13.2 Non-Assignability; Binding Effect. Neither this
Agreement, nor any of the rights or obligations of the parties
hereunder, shall be assignable by any party hereto without the prior
written consent of all other parties hereto. Otherwise, this
Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns.
13.3 Governing Law; Jurisdiction. This Agreement shall be
construed and interpreted and the rights granted herein governed in
accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly within such State. Except
as otherwise provided in Section 7.3 above, any claim, dispute or
controversy arising under or in connection with this Agreement or any
actual or alleged breach hereof shall be settled exclusively by
arbitration to be held before a single arbitrator in the state of
Florida or Georgia, in accordance with the commercial arbitration
rules of the American Arbitration Association then obtaining. As
part of his or her award, the arbitrator shall make a fair allocation
of the fee of the American Arbitration Association, the cost of any
transcript, and the parties' reasonable attorneys' fees, taking into
account the merits and good faith of the parties' claims and
defenses. Judgment may be entered on the award so rendered in any
court having jurisdiction. Any process or other papers hereunder may
be served by registered or certified mail, return receipt requested,
or by personal service, provided that a reasonable time for
appearance or response is allowed.
IN WITNESS WHEREOF, the parties have executed this Agreement on
and as of the date first set forth above.
FREESTAR TECHNOLOGY CORPORATION
By: /s/ Xxxx Xxxx
Xxxx Xxxx
President & Chief Executive Officer
UNICOMP, INC.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Chief Executive Officer
UNIPAY, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
