EXHIBIT 2.7
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement"), entered into this 20th day of
September 2001, is by, between, and among PayStar Communications Corporation,
a Nevada corporation (hereinafter the "Purchaser"), PayStar Info Stations,
Inc., a Nevada corporation (the "Subsidiary"), and iCatcher Network, Inc., a
Delaware corporation (the "Seller").
RECITALS:
A. Seller owns approximately 184 Internet access terminals, approximately
144 of which are installed in the Cincinnati, Ohio, and in the Washington,
D.C.-Baltimore-Philadelphia corridor, geographic areas and approximately 40 of
which are in inventory.
B. The Subsidiary is a wholly owned subsidiary of the Purchaser.
C. Purchaser, through the Subsidiary, owns and operates a network of
pay-for-use Internet access terminals and desires to purchase Seller's
tangible and intangible assets related to the terminals for the purpose of
converting a majority of the terminals into pay-for-use devices.
D. Purchaser wishes to purchase through the Subsidiary, and the Seller is
willing to sell to the Purchaser and the Subsidiary, the terminals for the
consideration, and subject to the terms, set forth in this Agreement.
NOW, THEREFORE, based upon the stated premises, which are incorporated herein
by reference, and for and in consideration of the mutual covenants and
agreements set forth herein, the mutual benefits to the parties to be derived
herefrom, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
1.1 Acquired Assets means all right, title, and interest in and to
all of the assets set forth in Exhibit "A," including, if any, all of the (a)
tangible personal property associated with such assets (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)
advertising, venue, and connectivity contracts, and miscellaneous contracts,
as set forth in Exhibit "B;" (c) customer, or host location or venue contracts
for the Internet access terminals as set forth in Exhibit "C;" (d) other
agreements, indentures, mortgages, instruments, Security Interests,
guaranties, other similar arrangements, and rights thereunder; (e) franchises,
approvals, permits, licenses, orders, registrations, certificates, variances,
exemptions, and similar rights obtained from governments and governmental
agencies (the Permits); (f) software, IT assets and other 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; (g) fixtures, improvements, and fittings thereon,
leaseholds and subleaseholds therein, and easements, rights-of-way, and other
appurtenants thereto (such appurtenant rights in and to public streets); (h)
leases, subleases, and rights thereunder; (i) 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); (j) accounts,
notes, and other receivables; and (k) customer lists, correspondence with
customers, customer files, customer account histories, other books, records,
ledgers, files, documents, correspondence, lists, plans, drawings, and
specifications, creative materials, advertising and promotional materials,
studies, reports, and other printed or written materials; provided, however,
that the Acquired Assets shall not include (i) the items set forth in Exhibit
"D" attached hereto (the Excluded Assets); (ii) the state charter,
qualifications to conduct business as a foreign entity, 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 Seller as a limited partnership; and (iii) any of the rights
of the Seller under this Agreement.
1.2 Assumed Liabilities means (a) all trade account payables and accrued
expenses of the Seller which arose in the ordinary course of business and
which are set forth in Exhibit "E" attached hereto, and (b) all obligations of
the Seller under the agreements, contracts, leases, licenses, and other
arrangements referred to in the definition of Acquired Assets, either (i) to
furnish goods, services, and other non-Cash benefits to another party after
the closing or (ii) to pay for goods, services, and other non-Cash benefits
that another party will furnish to it after the closing; provided, however,
that the Assumed Liabilities shall not include, unless expressly provided for
in this Agreement, (i) any Liability of the Seller for unpaid taxes or for
income, transfer, sales, use, and other taxes arising in connection with the
consummation of the transactions contemplated hereby; (ii) any obligation of
the Seller to indemnify any Person by reason of the fact that such Person was
a Stockholder, employee, or agent of the Seller and any of its affiliates or
was serving at the request of any such entity as a partner, trustee, director,
officer, employee, or agent of another entity (whether such indemnification is
for judgments, damages, penalties, fines, costs, amounts paid in settlement,
losses, expenses, or otherwise and whether such indemnification is pursuant to
any statute, charter document, bylaw, agreement, or otherwise); (iii) all
Liabilities and obligations of the Seller relating to the Excluded Assets
(including accounts payable and accrued expenses); (iv) all liabilities and
obligations relating to funded indebtedness of Seller or its subsidiaries; (v)
any Liability of the Seller for costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby; or (vi) any Liability
or obligation of the Seller under this Agreement.
1.3 Cash means cash and cash equivalents (including marketable securities
and short term investments) calculated in accordance with GAAP.
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 "Registerable Securities" shall mean the shares of common
stock of the Purchaser issued pursuant to this Agreement (i) in respect of
which the Registration Statement has not been declared effective by the SEC;
(ii) which have not been sold under circumstances under which all of the
applicable conditions of Rule 144 (or any similar provision then in
force)under the Securities Act are met; or (iii) which have not been otherwise
transferred to a holder who may trade such shares without restriction under
the Securities Act, and the Company has delivered a new certificate or other
evidence of ownership for such securities not bearing a restrictive legend.
1.9 "Registration Rights Agreement" shall mean the agreement
regarding the filing of the Registration Statement for the resale of the
Registerable Securities, entered into between the Purchaser and the Investor
on the closing date and annexed hereto as Exhibit "F."
1.10 "Registration Statement" shall mean a registration
statement on Form SB-2 (if use of such form is then available to the Purchaser
pursuant to the rules of the SEC and, if not, on such other form promulgated
by the SEC for which the Purchaser then qualifies and which counsel for the
Purchaser shall deem appropriate, and which form shall be available for the
resale of the Registerable Securities to be registered thereunder in
accordance with the provisions of this Agreement and the Registration Rights
Agreement, and in accordance with the intended method of distribution of such
securities), for the registration of the resale by the Seller of the
Registerable Securities under the Securities Act.
1.11 "SEC" shall mean the Securities and Exchange Commission.
1.12 "Securities Act" means the Securities Act of 1933, as amended.
1.13 Security Interest means any lien, encumbrance, mortgage, pledge,
charge, or other security interest.
1.14 "Stockholder" means any person who or which holds any shares of
capital stock of the Seller.
2. Asset Purchase Transaction.
2.1 Purchase and Sale of Assets. On and subject to the terms and
conditions of this Agreement, the Subsidiary agrees to purchase from the
Seller, and Seller agrees to sell, transfer, convey, and deliver to the
Subsidiary, all of the Acquired Assets at the closing free and clear of any
Security Interests for the consideration set forth in subsection 2.3, below.
2.2 Assumption of Liabilities. On and subject to the terms and conditions
of this Agreement, the Subsidiary agrees to assume and become responsible for
all of the Assumed Liabilities at the closing. The Subsidiary will not assume
or have any responsibility, however, with respect to any other obligation or
Liability of Seller not included within the definition of Assumed Liabilities.
2.3 Securities to be Issued; Price Guarantee.
a. At closing Purchaser shall deliver to Seller 400,000 restricted
shares of common stock of Purchaser. The delivery of the 400,000 restricted
shares shall constitute the full purchase price of the Acquired Assets.
b. If Seller is not able to sell any of the 400,000 shares of stock
received pursuant to this Agreement at or above $1.00 per share, then the
following calculation will be made: If the average daily closing price of the
Purchaser's common stock, during the period from the closing date until 13
months following should fall below an average of $1.00 by dividing the number
of trading days into the closing price, and Seller shall have had ample
opportunity to sell the stock at or above the $1.00 per share price, then no
further money is due Seller. In the event that the average price over the
same 13 month period is below $1.00 and Seller has not had the opportunity to
sell the stock at or above $1.00 then the difference between the amount the
stock was sold for and $1.00 shall be paid by Purchaser to Seller within
thirty (30) days.
2.4 Registration Rights. Contemporaneous with the closing, the Purchaser
and the Seller shall enter into the Registration Rights Agreement for the
filing of a Registration Statement for the resale of the Registerable Shares.
Notwithstanding the foregoing, a Registration Statement shall be filed on or
before October 1, 2001. Purchaser shall use its best efforts, subject to the
terms of the Registration Rights Agreement, to maintain the effectiveness of
the Registration Statement for a period of not less than 240 days.
3. Representations and Warranties of Seller. Seller represents and
warrants to Purchaser and the Subsidiary as set forth below. These
representations and warranties are made as an inducement for Purchaser and the
Subsidiary to enter into this Agreement and the Registration Rights Agreement,
and, but for the making of such representations and warranties and their
accuracy, Purchaser and the Subsidiary would not be parties hereto or thereto.
3.1 Organization and Authority. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
with full power and authority to enter into and perform the transactions
contemplated by this Agreement and the Registration Rights Agreement. This
Agreement constitutes a legal, valid, and binding agreement of the Seller.
3.2 Tangible Assets Fit for Use. The tangible Acquired Assets are fit for
use or at least for conversion into the Seller's business as presently
conducted and (i) are each in good repair and operating condition, normal wear
and tear excepted; (ii) have been maintained in accordance with normal
industry practice; (iii) are suitable for the uses to which customarily put in
the conduct of the Seller's business; (iv) are not operated in violation of
any applicable laws, permits, or contracts; and (v) are not leased or on loan
to any third party.
3.3 Title to Assets. Seller has good and marketable title to the Acquired
Assets, free and clear of any Security Interest or restriction on transfer,
except as disclosed in writing to Purchaser and the Subsidiary prior to
closing.
3.4 Clients and Customers. There has been no material dispute
between Seller and any customer applicable to such customer or otherwise in
connection with the business relationship between Seller and any customer;
(ii) Seller has not been advised by any customer that such customer intends
to, or would, cancel or otherwise terminate its business relationship in
relation to the Acquired Assets for any reason whatsoever (including, without
limitation, as a result of the announcement or consummation of a transaction
of the type contemplated by this Agreement or any similar transaction), nor
does Seller believe that any such cancellation or other such termination would
occur or that there is any reasonable basis to expect that such a termination
or cancellation would occur; and (iii) Seller has not been advised by any
customer, and Seller has no reasonable basis to believe, that any customer
intends to solicit "requests for proposal" or would otherwise contract with a
party other than Seller (or Subsidiary upon consummation of the transactions
contemplated hereby) upon expiration of the current contractual relationship
between Seller and such customer.
3.5 Liabilities. There are no material Liabilities of Seller which relate
to the Acquired Assets which are not disclosed in Exhibit "G." As of the date
hereof, there are no known circumstances, conditions, happenings, events or
arrangements, contractual or otherwise, which may hereafter give rise to such
Liabilities, except in the normal course of business of Seller.
3.6 Litigation. There are no legal, administrative or other proceedings,
investigations or inquiries, product liability, trade ▇▇▇▇ or name
infringement, or other claims, judgments, injunctions or restrictions, either
threatened, pending, or outstanding against or involving Seller, or its
assets, properties, or business, nor does Seller know, or have reasonable
grounds to know, of any basis for any such proceedings, investigations or
inquiries, product liability, trade ▇▇▇▇ or name infringement, or other
claims, judgments, injunctions or restrictions. In addition, there are no
material proceedings existing, pending or reasonably contemplated to which any
Stockholder or affiliate of Seller is a party adverse to Seller or has a
material interest adverse to Seller.
3.7 Taxes. All federal, state, foreign, county and local income, profits,
franchise, occupation, property, sales, use, gross receipts and other taxes
(including any interest or penalties relating thereto) and assessments which
are due and payable have been duly reported, fully paid and discharged as
reported by Seller, and there are no unpaid taxes which are, or could become a
lien on the properties and assets of Seller, except as have been incurred in
the normal course of business of Seller since that date. All tax returns of
any kind required to be filed have been filed and the taxes paid or accrued.
3.8 No Conflict or Violation. Neither the execution and
delivery of this Agreement, or the Registration Rights Agreement, by Seller,
nor the consummation by Seller of the transactions hereunder or thereunder nor
compliance by Seller with any of the provisions hereof or thereof will result
in: (i) a violation of or a conflict with any provision of the articles or
certificate of incorporation, as amended, or bylaws, as amended, of Seller;
(ii) a violation of any applicable law, or order, judgment, writ, injunction,
decree or award, or an event which, with the giving of notice, lapse of time
or both, would result in any such violation; (iii) an imposition of any lien
on any Acquired Asset (other than the Assumed Liabilities), or an event which,
with the giving of notice, lapse of time or both, would result in any such
imposition; or (iv) any Person having the right to enjoin, rescind or
otherwise prevent or impede the transactions contemplated hereby or to obtain
damages from Purchaser or the Subsidiary or to obtain any other judicial or
administrative relief as a result of any transaction carried out in accordance
with the provisions of this Agreement or the Registration Rights Agreement.
3.9 Consents and Approvals. No consent, approval or authorization of
any Person, nor any declaration, filing or registration with any Person, is
required to be made or obtained by Seller in connection with the execution,
delivery and performance by Seller of the transactions contemplated to be
consummated by Seller hereunder, except for those consents set forth on
Exhibit "H" (the "Required Consents").
3.10 Contracts. Exhibit "A" is a true, correct and complete list of
all Acquired Assets, including all acquired contracts, provider agreements or
miscellaneous agreements contemplated herein. Each contract is the legal,
valid, and binding obligation of Seller and is in full force and effect as of
the date hereof. Seller has delivered or caused to be delivered to Purchaser
complete copies of each contract disclosed in Exhibit "A." Each of these
contracts will continue to be legal, valid, binding, enforceable, and in full
force and effect on identical terms following the consummation of the
transactions contemplated hereby (including the assignment of the contracts
and assumed provider agreements from Seller to Purchaser as contemplated
herein), provided that the Required Consents and/or assignments are obtained.
3.11 Accuracy of All Statements Made by Seller. No representation or
warranty by Seller in this Agreement, nor any statement, certificate,
schedule, or exhibit hereto furnished or to be furnished by or on behalf of
Seller pursuant to this Agreement, nor any document or certificate delivered
to Purchaser or the Subsidiary by Seller 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 Purchaser and the Subsidiary.
Purchaser and the Subsidiary, jointly and severally, represent and warrant to
Seller as set forth below. These representations and warranties are made as
an inducement for Seller to enter into this Agreement and the Registration
Rights Agreement, and, but for the making of such representations and
warranties and their accuracy, Seller would not be a party hereto or thereto.
4.1 Organization and Good Standing. Purchaser and the Subsidiary 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 Registration Rights Agreement, and the transaction
contemplated hereby and thereby have been authorized by the boards of
directors of Purchaser and the Subsidiary.
4.3 Legality of Securities to be Issued. The shares of common stock of
Purchaser to be issued pursuant to this Agreement, when so issued and
delivered, will have been duly and validly authorized and issued by Purchaser
and will be fully paid and nonassessable.
4.4 Accuracy of All Statements Made by Purchaser and the Subsidiary. No
representation or warranty by Purchaser or the Subsidiary in this Agreement,
nor any statement, certificate, schedule, or exhibit hereto furnished or to be
furnished by Purchaser or the Subsidiary pursuant to this Agreement, nor any
document or certificate delivered to Seller 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 Access to Information.
a. Purchaser and the Subsidiary and their authorized representatives shall
have full access during normal business hours to all properties, books,
records, contracts, and documents of Seller, and Seller shall furnish or cause
to be furnished to Purchaser and the Subsidiary and their authorized
representatives all information with respect to its affairs and business as
Purchaser or the Subsidiary may reasonably request. Purchaser and the
Subsidiary 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 Purchaser or the
Subsidiary; (ii) becomes part of the public domain after disclosure through no
fault of Purchaser or the Subsidiary; (iii) is known to Purchaser or the
Subsidiary or any of their officers or directors prior to disclosure; or (iv)
is disclosed in accordance with the written consent of Seller. In the event
this Agreement is terminated prior to closing, Purchaser and the Subsidiary
shall, upon the written request of Seller, promptly return all copies of all
documentation and information provided by Seller hereunder.
b. Seller and its authorized representatives shall have full access during
normal business hours to all properties, books, records, contracts, and
documents of Purchaser and the Subsidiary, and Purchaser and the Subsidiary
shall furnish or cause to be furnished to Seller and its authorized
representatives all information with respect to their affairs and business as
Seller may reasonably request. Seller 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 Seller; (ii) becomes part of the public domain after disclosure
through no fault of Seller; (iii) is known to Seller or any of its partners or
managers prior to disclosure; or (iv) is disclosed in accordance with the
written consent of Purchaser or the Subsidiary, as applicable. In the event
this Agreement is terminated prior to closing, Seller shall, upon the written
request of Purchaser or the Subsidiary, promptly return all copies of all
documentation and information provided by Purchaser or the Subsidiary
hereunder.
5.2 Actions Prior to Closing. From and after the date of this Agreement
and until the closing date:
a. Seller 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. Seller 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. Seller shall use its best efforts to preserve its business organization
intact.
d. Seller 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 Seller.
e. Seller shall duly comply with all applicable laws as may be required
for the valid and effective transfer of assets contemplated by this Agreement.
f. Seller shall not sell or dispose of any property or assets, except
products sold in the ordinary course of business.
g. Seller shall promptly notify Purchaser 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 Seller.
5.3 No Covenant as to Tax or Accounting Consequences. It is expressly
understood and agreed that neither Purchaser, nor the Subsidiary, 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.
5.4 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.
5.5 Indemnification. Seller shall indemnify Purchaser and the Subsidiary
for any loss, cost, expense, or other damage (including, without limitation,
attorneys' fees and expenses) suffered by Purchaser or the Subsidiary
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 Seller
herein, and any claims arising from the operations of Seller prior to the
closing date. Purchaser and the Subsidiary, jointly and severally, shall
indemnify and hold Seller 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
Purchaser or the Subsidiary herein, and any claims arising from the operations
of Purchaser or the Subsidiary 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.
5.6 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.
5.7 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.
5.8 No Finder's Fees. No broker, finder, or similar agent has been
employed by or on behalf of Seller, Purchaser, or the Subsidiary in connection
with this Agreement or the transactions contemplated hereby, and such parties
have not entered into any agreement or understanding of any kind with any
Person for the payment of, and shall not be required to pay, any brokerage
commission, finder's fee, or any similar compensation in connection with this
Agreement or the transactions contemplated hereby.
5.9 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 Purchaser' and the Subsidiary's Obligations.
Each and every obligation of Purchaser and the Subsidiary 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 Seller 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. Seller 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 Officer's Certificate. Purchaser and the Subsidiary shall have been
furnished with a certificate (dated as of the closing date and in form and
substance reasonably satisfactory to Purchaser and the Subsidiary), executed
by a the president of Seller, 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, to the
Acquired Assets or which materially impairs the ability of Seller to conduct
its business or the earning power thereof on the same basis as in the past.
7. Conditions Precedent to Obligations of Seller. Each and every
obligation of Seller 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 Purchaser and the Subsidiary 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. Purchaser and the
Subsidiary 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. Seller shall have been furnished with
certificates (dated as of the closing date and in form and substance
reasonably satisfactory to Seller), executed by an executive officer of
Purchaser and by an executive officer of the Subsidiary, 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 Purchaser or the Subsidiary to
conduct its business.
8. Securities Law Provisions. At closing Seller shall deliver to
Purchaser a subscription agreement, as provided by Purchaser, containing
appropriate representations concerning the restricted nature of the securities
to be issued to it, the non-distributive intent of the recipient of the
securities, and other provisions to reasonably satisfy the non-public,
unregistered nature of the transaction.
9. Closing.
9.1 Time and Place. The closing of this transaction ("closing") shall
take place at the offices of Purchaser, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇,
▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 a.m., September ___, 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 Seller. At the closing Seller shall
deliver to Purchaser and the Subsidiary the following documents:
a. The Required Consents, assignments, and such other instruments of sale,
transfer, conveyance, and assignment of the Acquired Assets to the Subsidiary
as the Subsidiary 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. If applicable, proof of compliance with bulk transfer laws.
e. The Registration Rights Agreement.
f. Such other documents of transfer, certificates of authority, and other
documents as Purchaser or the Subsidiary may reasonably request.
9.3 Documents To Be Delivered by Purchaser and the Subsidiary. At the
closing Purchaser and the Subsidiary shall deliver to Seller the following
documents:
a. An assumption document and such other instruments of assumption by the
Subsidiary as set forth in subsection 2.2 hereof and as Seller and its counsel
may reasonably request.
b. A stock certificate for 400,000 shares of restricted common stock of Purchaser.
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 Seller may reasonably request.
10. Termination. This Agreement may be terminated by Purchaser, the
Subsidiary, or Seller 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 September 30, 2001, if the closing shall not have occurred. Following
termination of this Agreement no party shall have liability to another party
relating to such termination, other than any liability resulting from the
breach of this Agreement by a party prior to the date of termination.
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:
Seller: ▇▇▇▇ ▇▇▇▇, Chairman
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Purchaser
& the Subsidiary: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CFO
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
with copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Attorney at Law
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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 Interpretation of Agreement. This Agreement shall be interpreted and
construed as if equally drafted by all parties hereto.
11.8 Survival of Covenants, Etc. All covenants, representations, and
warranties made herein to any party, or in any statement or document delivered
to any party hereto, shall survive the making of this Agreement and shall
remain in full force and effect until the obligations of such party hereunder
have been fully satisfied.
11.9 Further Action. The parties hereto agree to execute and deliver such
additional documents and to take such other and further action as may be
required to carry out fully the transactions contemplated herein.
11.10 Amendment. This Agreement or any provision hereof may not be
changed, waived, terminated, or discharged except by means of a written
supplemental instrument signed by the party or parties against whom
enforcement of the change, waiver, termination, or discharge is sought.
11.11 Full Knowledge. By their signatures, the parties acknowledge that
they have carefully read and fully understand the terms and conditions of this
Agreement, that each party has had the benefit of counsel, or has been advised
to obtain counsel, and that each party has freely agreed to be bound by the
terms and conditions of this Agreement.
11.12 Headings. The descriptive headings of the various sections or parts
of this Agreement are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
11.13 Counterparts. This Agreement may be executed in two or more
partially or fully executed counterparts, each of which shall be deemed an
original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument.
11.14 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without
regard to conflict of law principles and will be binding upon and shall inure
to the benefit of the Parties and Shareholders and their successors and
assigns.
11.15 Exhibits. As set forth in this Agreement, there are attached
hereto, or delivered herewith, the following Exhibits, each of which is
incorporated herein by this reference and expressly made a part hereof:
Exhibit Description
"A" Acquired Assets
"B" Acquired Contracts
"C" Customer Contracts
"D" Excluded Assets
"E" Assumed Liabilities
"F" Registration Rights Agreement
"G" Liabilities Related to Acquired Assets
"H" Required Consents
IN WITNESS WHEREOF, the parties hereto executed the foregoing Asset Purchase
Agreement the day and year first above written.
PURCHASER: PayStar Communications Corporation
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CEO
THE SUBSIDIARY: PayStar Info Stations, Inc.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman
SELLER: iCatcher Network, Inc.
By /s/ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, Director & Co-Founder