EXHIBIT 2.3
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement"), entered into this 1st day of
December 2000, by, between, and among PayStar Communications Corporation, a
Nevada corporation (hereinafter "PayStar Communications"), XxxXxxx.xxx, Inc.,
a Nevada corporation (hereinafter "XxxXxxx.xxx"), and NCS-Network
Communications Solutions, LLC, a Nevada limited liability company (hereinafter
"NCS").
RECITALS:
WHEREAS, XxxXxxx.xxx is a wholly owned subsidiary of another wholly owned
subsidiary of PayStar Communications; and
WHEREAS, PayStar Communications, through XxxXxxx.xxx, wishes to purchase
substantially all of the assets of NCS in return for stock and warrants of
PayStar Communications and other consideration;
NOW, THEREFORE, based upon the stated premises, which are incorporated herein
by reference, and for and in consideration of the mutual covenants and
agreements set forth herein, the mutual benefits to the parties to be derived
herefrom, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, PayStar Communications, XxxXxxx.xxx, and NCS
agree as follows:
1. Definitions.
1.1 "Acquired Assets" means all right, title, and interest in and to
all of the assets of NCS set forth in Exhibit "A," including, if any, all of
its (a) tangible personal property (such as inventories of raw materials,
supplies, packaging goods, and finished goods, equipment, manufactured and
purchased parts, machinery, goods in process, furniture, automobiles, trucks,
tractors, trailers, tools, jigs, and dies, if any); (b) agreements, contracts,
indentures, mortgages, instruments, Security Interests, guaranties, other
similar arrangements, and rights thereunder; (c) franchises, approvals,
permits, licenses, orders, registrations, certificates, variances, exemptions,
and similar rights obtained from governments and governmental agencies (the
"Permits"); (d) Intellectual Property, goodwill associated therewith, licenses
and sublicenses granted and obtained with respect thereto, and rights
thereunder, remedies against infringements thereof, and rights to protection
of interests therein under the laws of all jurisdictions; (e) real property,
fixtures, improvements, and fittings thereon, leaseholds and subleaseholds
therein, and easements, rights-of-way, ant other appurtenants thereto (such
appurtenant rights in and to public streets); (f) leases, subleases, and
rights thereunder; (g) prepayments, prepaid expenses, and deferred items,
claims, deposits, refunds, causes of action, chooses in action, rights of
recovery, rights of set off, and rights of recoupment (including any such item
relating to the payment of taxes); (h) accounts, notes, and other receivables;
(i) securities (such as the capital stock in any other entity); (j) books,
records, ledgers, files, documents, correspondence, lists, plats,
architectural plans, drawings, and specifications, creative materials,
advertising and promotional materials, studies, reports, and other printed or
written materials; and (k) cash; provided, however, that the Acquired Assets
shall not include (i) the items set forth in Exhibit "B" attached hereto (the
"Excluded Assets"); (ii) the corporate charter, qualifications to conduct
business as a foreign corporation, arrangements with registered agents
relating to foreign qualifications, taxpayer, and other identification
numbers, seals, minute books, stock transfer books, blank stock certificates,
and other documents relating to the organization, maintenance, and existence
of NCS as a corporation; and (iii) any of the rights of NCS under this
Agreement.
1.2 "Assumed Liabilities" means all liabilities and obligations relating
to funded indebtedness of NCS or its subsidiaries.
1.3 "Cash" means cash and cash equivalents (including marketable
securities and short term investments) calculated in accordance with GAAP
applied on a basis consistent with the preparation of the financial statements
of NCS.
1.4 "GAAP" means United States generally accepted accounting principles as
in effect from time to time.
1.5 "Intellectual Property" means (a) all trade secrets and confidential
business information (including customer and supplier lists, ideas, research
and development, know-how, formulas, compositions, manufacturing and
production processes and techniques, technical data, designs, drawings,
specifications, pricing and cost information, and business and marketing plans
and proposals); (b) all trademarks, service marks, trade dress, logos, trade
names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith; (c) all inventions (whether patentable or unpatentable and whether
or not reduced to practice), all improvements thereto, and all patents, patent
applications, and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof; (d) all copyrightable works, all copyrights, and all
applications, registrations, and renewals in connection therewith; (e) all
mask works and all applications, registrations, and renewals in connection
therewith; (f) all computer software (including data, source codes, and
related documentation); (g) all other proprietary rights; and (h) all copies
and tangible embodiments thereof (in whatever form or medium).
1.6 "Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for taxes.
1.7 "Person" means an individual, a partnership, a corporation, an
association, a joint venture, a limited liability company or partnership, a
trust, a joint stock company, an unincorporated organization, or a
governmental entity (or any department, agency, or political subdivision
thereof).
1.8 "Security Interest" means any lien, encumbrance, mortgage, pledge,
charge, or other security interest.
1.9 "Member" means any person who or which holds any ownership interest of
NCS.
2. Asset Purchase Transaction.
2.1 Purchase and Sale of Assets. On and subject to the terms and
conditions of this Agreement, XxxXxxx.xxx agrees to purchase from NCS, and NCS
agrees to sell, transfer, convey, and deliver to XxxXxxx.xxx, all of the
Acquired Assets at the Closing free and clear of any Security Interests for
the consideration with respect to the Acquired Assets listed in Schedule A.
2.2 Assumption of Liabilities. On and subject to the terms and conditions
of this Agreement, XxxXxxx.xxx agrees to assume and become responsible for all
of the Assumed Liabilities at the closing listed in Schedule B. XxxXxxx.xxx
will not assume or have any responsibility, however, with respect to any other
obligation or Liability of NCS not included within the definition of Assumed
Liabilities.
2.3 Securities to be Issued. At closing PayStar Communications shall
deliver to NCS 150,000 units, each of which shall consist of one share of
common stock of PayStar Communications and one two-year Class A Warrant to
purchase another share of common stock at an exercise price of $2.00 per
share. Such units shall be offered and sold to NCS pursuant to this Agreement
and in accordance with the terms of the current private offering of PayStar
Communications as set forth in the private offering memorandum of PayStar
Communications dated August 1, 2000, as amended August 17, 2000 (the "PayStar
Communications Private Offering"). The delivery of the 150,000 units shall
constitute the full purchase price of the Assets.
2.4 Employment and Consultant Agreements. Prior to closing XxxXxxx.xxx
shall negotiate an employment contract with Xxxxxxx X. XxXxxx to serve in a
similar position with XxxXxxx.xxx that he currently holds with NCS. On or
before the closing, and as a condition of closing, XxxXxxx.xxx shall enter
into an employment agreement with Xx. XxXxxx to be effective as of the closing
date.
3. Representations and Warranties of NCS. NCS represents and warrants to
PayStar Communications and XxxXxxx.xxx as set forth below. These
representations and warranties are made as an inducement for PayStar
Communications and XxxXxxx.xxx to enter into this Agreement and, but for the
making of such representations and warranties and their accuracy, PayStar
Communications and XxxXxxx.xxx would not be parties hereto.
3.1 Organization and Authority. NCS is a limited liability company duly
organized, validly existing and in good standing under the laws of the State
of Nevada with full power and authority to enter into and perform the
transactions contemplated by this Agreement. NCS has no subsidiary and owns
no interest in any other entity. NCS is duly qualified as a foreign entity to
transaction business in each jurisdiction in which the operations of NCS would
require such qualification.
3.2 Performance of This Agreement. The execution and performance of this
Agreement and the transaction contemplated hereby have been authorized by the
managers of NCS.
3.3 Financials. The financial statements of NCS for the nine months
ended September 30, 2000, and the years ended December 31, 2000 and 1999,
copies of which have been furnished to PayStar Communications and XxxXxxx.xxx,
are true and correct in all material respects. The year-end financial
statements have been examined and certified by Xxx Xxxx Certified Public
Accountant. Said interim and year-end financial statements are true and
correct in all material respects and present an accurate and complete
disclosure of the financial condition of NCS as of September 30, 2000 and the
earnings for the periods covered, in accordance with GAAP applied on a
consistent basis.
3.4 Title to Assets. NCS has good and marketable title to, or a valid
leasehold interest in, the properties and assets used by it, located on its
premises, or shown on the most recent balance sheet of NCS or acquired after
the date thereof, free and clear of all Security Interests, except for
properties and assets disposed of in the ordinary course of business since the
date of the most recent balance sheet. Without limiting the generality of the
foregoing, NCS has good and marketable title to all of the Acquired Assets,
free and clear of any Security Interest or restriction on transfer, except as
disclosed in writing to PayStar Communications and XxxXxxx.xxx prior to
closing.
3.5 Liabilities. There are no material Liabilities of NCS which arose or
relate to any transaction of NCS, its agents or servants occurring prior to
September 30, 2000, which are not disclosed by or reflected in said financial
statements. As of the date hereof, there are no known circumstances,
conditions, happenings, events or arrangements, contractual or otherwise,
which may hereafter give rise to Liabilities, except in the normal course of
business of NCS.
3.6 Absence of Certain Changes or Events. Except as set forth in this
Agreement, since September 30, 2000, there has not been (i) any material
adverse change in the business, operations, properties, level of inventory,
assets, or condition of NCS, or (ii) any damage, destruction, or loss to NCS
(whether or not covered by insurance) materially and adversely affecting the
business, operations, properties, assets, or conditions of NCS.
3.7 Litigation. There are no legal, administrative or other proceedings,
investigations or inquiries, product liability or other claims, judgments,
injunctions or restrictions, either threatened, pending, or outstanding
against or involving NCS, or its assets, properties, or business, nor does NCS
know, or have reasonable grounds to know, of any basis for any such
proceedings, investigations or inquiries, product liability or other claims,
judgments, injunctions or restrictions, except for the current proceedings
with the Internal Revenue Service dealing with unpaid employee/employer taxes
and related fines/penalties. In addition, there are no material proceedings
existing, pending or reasonably contemplated to which any officer, director,
or affiliate of NCS is a party adverse to NCS or has a material interest
adverse to NCS.
3.8 Taxes. All federal, state, foreign, county and local income, profits,
franchise, occupation, property, sales, use, gross receipts and other taxes
(including any interest or penalties relating thereto) and assessments which
are due and payable have been duly reported, fully paid and discharged as
reported by NCS, and there are no unpaid taxes which are, or could become a
lien on the properties and assets of NCS, except as provided for in the
financial statements of NCS, or have been incurred in the normal course of
business of NCS since that date, except for the current proceedings with the
Internal Revenue Service dealing with unpaid employee/employer taxes and
related fines/penalties. All other tax returns of any kind required to be
filed have been filed and the taxes paid or accrued.
3.9 Accuracy of All Statements Made by NCS. No representation or warranty
by NCS in this Agreement, nor any statement, certificate, schedule, or exhibit
hereto furnished or to be furnished by or on behalf of NCS pursuant to this
Agreement, nor any document or certificate delivered to PayStar Communications
or XxxXxxx.xxx by NCS pursuant to this Agreement or in connection with actions
contemplated hereby, contains or shall contain any untrue statement of
material fact or omits or shall omit a material fact necessary to make the
statement contained therein not misleading.
4. Representations and Warranties of PayStar Communications and
XxxXxxx.xxx. PayStar Communications and XxxXxxx.xxx, jointly and severally,
represent and warrant to NCS as set forth below. These representations and
warranties are made as an inducement for NCS to enter into this Agreement and,
but for the making of such representations and warranties and their accuracy,
NCS would not be a party hereto.
4.1 Organization and Good Standing. PayStar Communications and
XxxXxxx.xxx are corporations duly organized, validly existing and in good
standing under the laws of the State of Nevada with full power and authority
to enter into and perform the transactions contemplated by this Agreement.
4.2 Performance of This Agreement. The execution and performance of this
Agreement and the transaction contemplated hereby have been authorized by the
boards of directors of PayStar Communications and XxxXxxx.xxx.
4.3 Financials. True copies of the consolidated financial statements of
PayStar Communications for the nine months ended September 30, 2000, and the
years ended December 31, 1999 and 1998, have been delivered by PayStar
Communications to NCS. The year-end financial statements for 1999 have been
examined and certified by Xxxxxxxx Xxxxxxxx & Strong, Certified Public
Accountants; the year-end financial statements for 1998 have been examined and
certified by Xxxxxxxxxxxx and Company, Certified Public Accountants. Said
financial statements are true and correct in all material respects and present
an accurate and complete disclosure of the financial condition of PayStar
Communications as of September 30, 2000 and the earnings for the periods
covered, in accordance with GAAP applied on a consistent basis. These
financial statements are set forth in the registration statement filed with
the U.S. Securities and Exchange Commission by PayStar Communications under
the Securities Act of 1933 and periodic reports filed with the U.S. Securities
and Exchange Commission by PayStar Communications pursuant to Section 15(d) of
the Securities Exchange Act of 1934 (collectively the "SEC Periodic Reports").
4.4 Liabilities. There are no material Liabilities of PayStar
Communications which arose or relate to any transaction of PayStar
Communications, its agents or servants which are not disclosed by or reflected
in said financial statements. As of the date hereof, there are no known
circumstances, conditions, happenings, events or arrangements, contractual or
otherwise, which may hereafter give rise to Liabilities, except in the normal
course of business of PayStar Communications.
4.5 Litigation. Except as set forth in the SEC Periodic Reports, there
are no legal, administrative or other proceedings, investigations or
inquiries, product liability or other claims, judgments, injunctions or
restrictions, either threatened, pending, or outstanding against or involving
PayStar Communications or its subsidiaries, or their assets, properties, or
business, nor does PayStar Communications or its subsidiaries know, or have
reasonable grounds to know, of any basis for any such proceedings,
investigations or inquiries, product liability or other claims, judgments,
injunctions or restrictions. In addition, there are no material proceedings
existing, pending or reasonably contemplated to which any officer, director,
or affiliate of PayStar Communications, or its subsidiaries, is a party
adverse to PayStar Communications or any of its subsidiaries or has a material
interest adverse to PayStar Communications or any of its subsidiaries.
4.6 Taxes. All federal, state, foreign, county and local income, profits,
franchise, occupation, property, sales, use, gross receipts and other taxes
(including any interest or penalties relating thereto) and assessments which
are due and payable have been duly reported, fully paid and discharged as
reported by PayStar Communications, and there are no unpaid taxes which are,
or could become a lien on the properties and assets of PayStar Communications,
except as provided for in the financial statements of PayStar Communications,
or have been incurred in the normal course of business of PayStar
Communications since that date. All tax returns of any kind required to be
filed have been filed and the taxes paid or accrued. As a newly formed
corporation, XxxXxxx.xxx has incurred no tax liabilities and has filed no tax
returns.
4.7 Legality of Securities to be Issued. The shares of common stock, the
warrants, and the shares of common stock underlying the warrants, of PayStar
Communications to be issued by PayStar Communications pursuant to this
Agreement, when so issued and delivered, will have been duly and validly
authorized and issued by PayStar Communications and will be fully paid and
nonassessable.
4.8 Accuracy of All Statements Made by PayStar Communications and
XxxXxxx.xxx. No representation or warranty by PayStar Communications or
XxxXxxx.xxx in this Agreement, nor any statement, certificate, schedule, or
exhibit hereto furnished or to be furnished by PayStar Communications or
XxxXxxx.xxx pursuant to this Agreement, nor any document or certificate
delivered to NCS pursuant to this Agreement or in connection with actions
contemplated hereby, contains or shall contain any untrue statement of
material fact or omits to state or shall omit to state a material fact
necessary to make the statement contained therein not misleading.
5. Covenants of the Parties.
5.1 Corporate Records.
a. Simultaneous with the execution of this Agreement by NCS, such entity
shall deliver to PayStar Communications and XxxXxxx.xxx copies of the articles
of organization, as amended, and the operating agreement of NCS, and copies of
the resolutions duly adopted by the managers of NCS approving this Agreement
and the transactions herein contemplated.
b. Simultaneous with the execution of this Agreement by PayStar
Communications and XxxXxxx.xxx, such entities shall deliver to NCS copies of
the articles of incorporation, as amended, and the current bylaws of each
entity, and copies of the resolutions duly adopted by the boards of directors
of PayStar Communications and XxxXxxx.xxx approving this Agreement and the
transactions herein contemplated.
5.2 Access to Information.
a. PayStar Communications and XxxXxxx.xxx and their authorized
representatives shall have full access during normal business hours to all
properties, books, records, contracts, and documents of NCS, and NCS shall
furnish or cause to be furnished to PayStar Communications and XxxXxxx.xxx and
their authorized representatives all information with respect to its affairs
and business as PayStar Communications or XxxXxxx.xxx may reasonably request.
PayStar Communications and XxxXxxx.xxx shall hold, and shall cause its
representatives to hold confidential, all such information and documents,
other than information that (i) is in the public domain at the time of its
disclosure to PayStar Communications or XxxXxxx.xxx; (ii) becomes part of the
public domain after disclosure through no fault of PayStar Communications or
XxxXxxx.xxx; (iii) is known to PayStar Communications or XxxXxxx.xxx or any of
their officers or directors prior to disclosure; or (iv) is disclosed in
accordance with the written consent of NCS. In the event this Agreement is
terminated prior to closing, PayStar Communications and XxxXxxx.xxx shall,
upon the written request of NCS, promptly return all copies of all
documentation and information provided by NCS hereunder.
b. NCS and its authorized representatives shall have full access during
normal business hours to all properties, books, records, contracts, and
documents of PayStar Communications and XxxXxxx.xxx, and PayStar
Communications and XxxXxxx.xxx shall furnish or cause to be furnished to NCS
and its authorized representatives all information with respect to their
affairs and business as NCS may reasonably request. NCS shall hold, and shall
cause its representatives to hold confidential, all such information and
documents, other than information that (i) is in the public domain at the time
of its disclosure to NCS; (ii) becomes part of the public domain after
disclosure through no fault of NCS; (iii) is known to NCS or any of its
managers prior to disclosure; or (iv) is disclosed in accordance with the
written consent of PayStar Communications or XxxXxxx.xxx, as applicable. In
the event this Agreement is terminated prior to closing, NCS shall, upon the
written request of PayStar Communications or XxxXxxx.xxx, promptly return all
copies of all documentation and information provided by PayStar Communications
or XxxXxxx.xxx hereunder.
5.3 Actions Prior to Closing. From and after the date of this Agreement
and until the closing date:
a. NCS shall carry on its business diligently and substantially in the
same manner as heretofore, and shall not make or institute any unusual or
novel methods of purchase, sale, management, accounting or operation.
b. NCS shall not enter into any contract or commitment, or engage in any
transaction not in the usual and ordinary course of business and consistent
with its business practices.
c. NCS shall not amend its articles of incorporation or bylaws or make any
changes in authorized or issued capital stock, except as provided in this
Agreement.
d. NCS shall use its best efforts to preserve its business organization
intact.
e. NCS shall not do any act or omit to do any act, or permit any act or
omission to act, which will cause a material breach of any material contract,
commitment, or obligation of NCS.
f. NCS shall duly comply with all applicable laws as may be required for
the valid and effective transfer of assets contemplated by this Agreement.
g. NCS shall not sell or dispose of any property or assets, except
products sold in the ordinary course of business.
h. NCS shall promptly notify PayStar Communications of any lawsuits,
claims, proceedings, or investigations that may be threatened, brought,
asserted, or commenced against it, its officers or directors involving in any
way the business, properties, or assets of NCS.
5.4 Members' Meeting or Consent. NCS shall promptly submit this Agreement
and the transactions contemplated hereby for the approval of its Members at a
meeting of Members or by consent of Members owning a majority of the
outstanding ownership interests, and, subject to the fiduciary duties of the
managers of NCS under applicable law, shall use its best efforts to obtain
Member approval and adoption of this Agreement and the transactions
contemplated hereby.
5.5 No Covenant as to Tax or Accounting Consequences. It is expressly
understood and agreed that neither PayStar Communications, nor XxxXxxx.xxx,
nor their officers, agents, or legal counsel has made any warranty or
agreement, expressed or implied, as to the tax or accounting consequences of
the transactions contemplated by this Agreement or the tax or accounting
consequences of any action pursuant to or growing out of this Agreement.
5.6 Bulk Transfer Laws. Prior to closing the parties shall comply with
the provisions of any bulk transfer laws of any jurisdiction in connection
with the transactions contemplated by this Agreement.
5.7 Indemnification. NCS shall indemnify PayStar Communications and
XxxXxxx.xxx for any loss, cost, expense, or other damage (including, without
limitation, attorneys' fees and expenses) suffered by PayStar Communications
or XxxXxxx.xxx resulting from, arising out of, or incurred with respect to, or
alleged to result from, arise out of or have been incurred with respect to,
the falsity or the breach of any representation, warranty, or covenant made by
NCS herein, and any claims arising from the operations of NCS prior to the
closing date. PayStar Communications and XxxXxxx.xxx, jointly and severally,
shall indemnify and hold NCS harmless from and against any loss, cost,
expense, or other damage (including, without limitation, attorneys' fees and
expenses) resulting from, arising out of, or incurred with respect to, or
alleged to result from, arise out of or have been incurred with respect to,
the falsity or the breach of any representation, covenant, warranty, or
agreement made by PayStar Communications or XxxXxxx.xxx herein, and any claims
arising from the operations of PayStar Communications or XxxXxxx.xxx prior to
the closing date. The indemnity agreement contained herein shall remain
operative and in full force and effect, regardless of any investigation made
by or on behalf of any party and shall survive the consummation of the
transactions contemplated by this Agreement.
5.8 Publicity. The parties agree that no publicity, release, or other
public announcement concerning this Agreement or the transactions contemplated
by this Agreement shall be issued by any party hereto without the advance
approval of both the form and substance of the same by the other parties and
their counsel, which approval, in the case of any publicity, release, or other
public announcement required by applicable law, shall not be unreasonably
withheld or delayed.
5.9 Expenses. Each party to this Agreement shall bear its own respective
expenses incurred in connection with the negotiation and preparation of this
Agreement, in the consummation of the transactions contemplated hereby, and in
connection with all duties and obligations required to be performed by each of
them under this Agreement.
5.10 No Finders' Fees. No broker, finder, or similar agent has been
employed by or on behalf of NCS, PayStar Communications, or XxxXxxx.xxx in
connection with this Agreement or the transactions contemplated hereby, and
such parties have not entered into any agreement or understanding of any kind
with any Person for the payment of any brokerage commission, finder's fee, or
any similar compensation in connection with this Agreement or the transactions
contemplated hereby.
5.11 Further Actions. Each of the parties hereto shall take all such
further action, and execute and deliver such further documents, as may be
necessary to carry out the transactions contemplated by this Agreement.
6. Conditions Precedent to PayStar Communication's and XxxXxxx.xxx's
Obligations. Each and every obligation of PayStar Communications and
XxxXxxx.xxx to be performed on the closing date shall be subject to the
satisfaction prior thereto of the following conditions:
6.1 Truth of Representations and Warranties. The representations and
warranties made by NCS in this Agreement or given on its behalf hereunder
shall be substantially accurate in all material respects on and as of the
closing date with the same effect as though such representations and
warranties had been made or given on and as of the closing date.
6.2 Performance of Obligations and Covenants. NCS shall have performed
and complied with all obligations and covenants required by this Agreement to
be performed or complied with by it prior to or at the closing.
6.3 Manager's Certificate. PayStar Communications and XxxXxxx.xxx shall
have been furnished with a certificate (dated as of the closing date and in
form and substance reasonably satisfactory to PayStar Communications and
XxxXxxx.xxx), executed by the manager of NCS, certifying to the fulfillment of
the conditions specified in subsections 6.1 and 6.2 hereof.
6.4 No Litigation or Proceedings. There shall be no litigation or any
proceeding by or before any governmental agency or instrumentality pending or
threatened against any party hereto that seeks to restrain or enjoin or
otherwise questions the legality or validity of the transactions contemplated
by this Agreement or which seeks substantial damages in respect thereof.
6.5 No Material Adverse Change. As of the closing date there shall not
have occurred any material adverse change, financially or otherwise, which
materially impairs the ability of NCS to conduct its business or the earning
power thereof on the same basis as in the past.
6.6 Members' Approval. The holders of not less than a majority of the
outstanding ownership interests of NCS shall have voted for authorization and
approval of this Agreement and the transactions contemplated hereby.
7. Conditions Precedent to Obligations of NCS. Each and every obligation
of NCS to be performed on the closing date shall be subject to the
satisfaction prior thereto of the following conditions:
7.1 Truth of Representations and Warranties. The representations and
warranties made by PayStar Communications and XxxXxxx.xxx in this Agreement or
given on their behalf hereunder shall be substantially accurate in all
material respects on and as of the closing date with the same effect as though
such representations and warranties had been made or given on and as of the
closing date.
7.2 Performance of Obligations and Covenants. PayStar Communications and
XxxXxxx.xxx shall have performed and complied with all obligations and
covenants required by this Agreement to be performed or complied with by them
prior to or at the closing.
7.3 Officer's Certificates. NCS shall have been furnished with
certificates (dated as of the closing date and in form and substance
reasonably satisfactory to NCS), executed by an executive officer of PayStar
Communications and by an executive officer of XxxXxxx.xxx, certifying to the
fulfillment of the conditions specified in subsections 7.1 and 7.2 hereof.
7.4 No Litigation or Proceedings. There shall be no litigation or any
proceeding by or before any governmental agency or instrumentality pending or
threatened against any party hereto that seeks to restrain or enjoin or
otherwise questions the legality or validity of the transactions contemplated
by this Agreement or which seeks substantial damages in respect thereof.
7.5 No Material Adverse Change. As of the closing date there shall not
have occurred any material adverse change, financially or otherwise, which
materially impairs the ability of either PayStar Communications or XxxXxxx.xxx
to conduct its business.
8. Securities Law Provisions. At closing NCS shall deliver to PayStar
Communications subscription agreements, as provided by PayStar Communications,
containing appropriate representations concerning the restricted nature of the
securities to be issued to it, the non-distributive intent of the recipients
of the securities, and other provisions to reasonably satisfy the non-public,
unregistered nature of the transaction.
9. Closing.
9.1 Time and Place. The closing of this transaction ("closing") shall
take place at the offices of PayStar Communications, 0000 Xxxx Xxxxxxxxx Xxxx,
Xxxxx 00, Xxxx, XX 00000, at 11:00 a.m., January 2, 2001, or at such other
time and place as the parties hereto shall agree upon. Such date is referred
to in this Agreement as the "closing date."
9.2 Documents To Be Delivered by NCS. At the closing NCS shall deliver to
PayStar Communications and XxxXxxx.xxx the following documents:
a. A xxxx of sale and such other instruments of sale, transfer,
conveyance, and assignment of the Acquired Assets to XxxXxxx.xxx as
XxxXxxx.xxx and its counsel may request.
b. The subscription agreement described in Section 8 hereof.
c. The certificate required pursuant to subsection 6.3 hereof.
d. A certified copy of the duly adopted resolutions of NCS's managers
authorizing this Agreement and the transactions contemplated hereby.
e. If applicable, proof of compliance with bulk transfer laws.
f. Such other documents of transfer, certificates of authority, and other
documents as PayStar Communications or XxxXxxx.xxx may reasonably request.
9.3 Documents To Be Delivered by PayStar Communications and XxxXxxx.xxx.
At the closing PayStar Communications and XxxXxxx.xxx shall deliver to NCS the
following documents:
a. A certificate for 150,000 shares and a certificate for 150,000 warrants
of PayStar Communications issued to NCS as set forth in subsection 2.3 hereof.
b. Copies of the employment contract entered into by XxxXxxx.xxx with Xx.
XxXxxx as set forth in subsection 2.4 hereof.
c. The certificate required pursuant to subsection 7.3 hereof.
d. If applicable, proof of compliance with bulk transfer laws.
e. Such other documents of transfer, certificates of authority, and other
documents as NCS may reasonably request.
10. Termination. This Agreement may be terminated by PayStar
Communications, XxxXxxx.xxx, or NCS by notice to the others if, (i) at any
time prior to the closing date any event shall have occurred or any state of
facts shall exist that renders any of the conditions to its or their
obligations to consummate the transactions contemplated by this Agreement
incapable of fulfillment, or (ii) on January 31, 2001, if the closing shall
not have occurred. Following termination of this Agreement no party shall
have liability to another party relating to such termination, other than any
liability resulting from the breach of this Agreement by a party prior to the
date of termination.
11. Miscellaneous.
11.1 Notices. All communications provided for herein shall be in writing
and shall be deemed to be given or made when served personally or when
deposited in the United States mail, certified return receipt requested,
addressed as follows, or at such other address as shall be designated by any
party hereto in written notice to the other party hereto delivered pursuant to
this subsection:
NCS: Xxxxxxx X. XxXxxx, President
0000 Xxxxxxxxxx Xxxxxx #0
Xxxxxxx, XX 00000
PayStar Communications
& XxxXxxx.xxx: Xxxxxxx X. Xxxxx, Chairman
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 00
Xxxx, XX 00000
with copy to: Xxxxxx X. Xxxxx
Attorney at Law
00 Xxxx 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
11.2 Default. Should any party to this Agreement default in any of the
covenants, conditions, or promises contained herein, the defaulting party
shall pay all costs and expenses, including a reasonable attorney's fee, which
may arise or accrue from enforcing this Agreement, or in pursuing any remedy
provided hereunder or by statute.
11.3 Assignment. This Agreement may not be assigned in whole or in part
by the parties hereto without the prior written consent of the other party or
parties, which consent shall not be unreasonably withheld.
11.4 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, their heirs, executors,
administrators, successors and assigns.
11.5 Partial Invalidity. If any term, covenant, condition, or provision
of this Agreement or the application thereof to any person or circumstance
shall to any extent be invalid or unenforceable, the remainder of this
Agreement or application of such term or provision to persons or circumstances
other than those as to which it is held to be invalid or unenforceable shall
not be affected thereby and each term, covenant, condition, or provision of
this Agreement shall be valid and shall be enforceable to the fullest extent
permitted by law.
11.6 Entire Agreement. This Agreement constitutes the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all negotiations, representations, prior discussions,
and preliminary agreements between the parties hereto relating to the subject
matter of this Agreement.
11.7 Incorporation of Exhibits. The exhibits identified in this Agreement
are incorporated herein by reference and made a part hereof.
11.8 Interpretation of Agreement. This Agreement shall be interpreted and
construed as if equally drafted by all parties hereto.
11.9 Survival of Covenants, Etc. All covenants, representations, and
warranties made herein to any party, or in any statement or document delivered
to any party hereto, shall survive the making of this Agreement and shall
remain in full force and effect until the obligations of such party hereunder
have been fully satisfied.
11.10 Further Action. The parties hereto agree to execute and deliver
such additional documents and to take such other and further action as may be
required to carry out fully the transactions contemplated herein.
11.11 Amendment. This Agreement or any provision hereof may not be
changed, waived, terminated, or discharged except by means of a written
supplemental instrument signed by the party or parties against whom
enforcement of the change, waiver, termination, or discharge is sought.
11.12 Full Knowledge. By their signatures, the parties acknowledge that
they have carefully read and fully understand the terms and conditions of this
Agreement, that each party has had the benefit of counsel, or has been advised
to obtain counsel, and that each party has freely agreed to be bound by the
terms and conditions of this Agreement.
11.13 Headings. The descriptive headings of the various sections or parts
of this Agreement are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
11.14 Counterparts. This Agreement may be executed in two or more
partially or fully executed counterparts, each of which shall be deemed an
original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto executed the foregoing Asset Purchase
Agreement as of the day and year first above written.
PAYSTAR COMMUNICATIONS: PayStar Communications Corporation
By /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Chairman
XXXXXXX.XXX: XxxXxxx.xxx, Inc.
By /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Chairman
NCS: NCS-Network Communications Solutions, LLC.
By /s/ Xxxxxxx X. XxXxxx
Xxxxxxx X. XxXxxx, President
EXHIBIT "A"
LIST OF ASSETS
Per NCC New Commerce Communications, Inc., August, 2000 Valuation Report:
Web-Hosting $461,700
Web Development/E-Commerce $500,000
PDF On The Fly $250,000
________
Total $1,211,700
Discount @75% $908,775
Office Furniture and Equipment, per
attached $33,540
Grand Total $942,315
EXHIBIT "B"
ASSUMED FUNDED INDEBTEDNESS
NIBG, LLC, Notes
Note Date Amount Interest/Day Days Interest
March 16, 1999 $57,500 $21.32 645 $13,751.40
April 1, 1999 $57,500 $21.32 630 $13,431.60
May 4, 1999 $57,500 $21.32 595 $12,685.40
July 1, 1999 $50,000 $18.54 540 $10,011.60
September 21, 1999 $50,000 $18.54 460 $8,528.40
December 15, 1999 $28,750 $10.66 376 $4,008.16
December 22, 1999 $17,250 $6.40 369 $2,361.60
TOTAL $318,500 $118.10 $64,778.16
TOTAL PRINCIPAL AND INTEREST $383,278.16
