EXHIBIT 2.3
ACQUISITION AGREEMENT
This Acquisition Agreement (the "Agreement") is entered into as of September 21,
2001, by and between, ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, (▇▇. ▇▇▇▇▇▇▇▇") sole owner of
Pacific States Airline Services, Inc. ("PSAS") with principal offices at ▇▇▇
▇▇▇▇▇▇ ▇▇. #▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇ and PSA, Inc., a Nevada corporation ("PSA") with
principal offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇. #▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇. For good and valuable
consideration, the receipt and adequacy of which the parties acknowledge, ▇▇.
▇▇▇▇▇▇▇▇ and PSA mutually agree as follows:
1. RECITAL. This Agreement is made with reference to the following recital of
essential facts:
1.1 ▇▇. ▇▇▇▇▇▇▇▇ desires to sell, pursuant to this Agreement, all of
the issued and outstanding shares of PSAS to PSA.
1.2 PSA desires to buy, pursuant to this Agreement, all of the issued
and outstanding common stock of PSAS (the "PSAS Shares"), after
which, PSA shall own 100% of the issued and outstanding shares of
PSAS.
2. SALE AND EXCHANGE OF STOCK. Subject to the terms and conditions hereof, ▇▇.
▇▇▇▇▇▇▇▇ shall sell to PSA, and PSA shall purchase from ▇▇. ▇▇▇▇▇▇▇▇ the PSAS
Shares.
3. THE CLOSING OF THE TRANSACTION. On or before October 5, 2001 (the "Closing"),
at the principal offices of PSA, the following conditions will be met:
3.1 ▇▇. ▇▇▇▇▇▇▇▇ shall: (a) transfer to PSA the stock certificates for
225,000 shares of PSAS, which shall be 100% of the issued and
outstanding shares of PSAS, and (b) deliver a copy of the
resolution of its board of directors approving the transaction,
attached hereto as Exhibit "A," and by this reference made a part
hereof.
3.2 PSA shall: (a) deliver to ▇▇. ▇▇▇▇▇▇▇▇ the requisite documents
necessary to consummate the provisions of Section 4 below, and (b)
a copy of the resolution of its board of directors approving the
transaction attached hereto as Exhibit "B," and by this reference
made a part hereof.
4. TRANSACTION CONSIDERATION. The PSAS shares shall be acquired by PSA from ▇▇.
▇▇▇▇▇▇▇▇ in exchange for 625,000 shares of Common Stock of PSA (the "PSA
Shares"), as follows:
4.1 The 625,000 PSA Shares to be issued at Closing shall be issued in
two (2) certificates of 312,500 shares each registered in ▇▇.
▇▇▇▇▇▇▇▇' name. One certificate, along with a stock power signed
by ▇▇. ▇▇▇▇▇▇▇▇, shall be held by PSA as security for the
performance by ▇▇. ▇▇▇▇▇▇▇▇ of his obligations described in
Section 4.2 of this agreement. The PSA Shares shall be issued
pursuant to Rules 144 and 506 of Regulation D promulgated under
Section 4(2) of Act of 1933, as amended, and shall bear a
restrictive transfer legend.
4.2 As a condition of each of the two Sale and Purchase Agreements,
dated September 5, 2001, attached hereto as Exhibits "C" and "D,"
by and between ▇▇. ▇▇▇▇▇▇▇▇ and PSA, PSAZZ Air, Inc., and Royal
International Tours, Inc., a total of 312,500 PSA Shares issued
and registered to ▇▇. ▇▇▇▇▇▇▇▇ shall be held by PSA as security
for payment by ▇▇. ▇▇▇▇▇▇▇▇ of the aggregate purchase price of the
aforementioned Sale and Purchase Agreements. In the event that the
payment provisions of Section 4 of the Sale and Purchase
Agreements are not made as scheduled, PSA, in its sole discretion,
may elect to cancel the 312,500 PSA Shares as payment in full of
▇▇. ▇▇▇▇▇▇▇▇' obligation.
5. REPRESENTATIONS AND WARRANTIES OF ▇▇. ▇▇▇▇▇▇▇▇ AND ▇▇. ▇▇▇▇▇▇▇▇. PSAS and ▇▇.
▇▇▇▇▇▇▇▇, jointly and severally, represent and warrant to PSA as follows:
5.1 PSAS is a corporation duly organized and validly existing under,
and by virtue of, the laws of the State of California and is in
good standing under such laws. PSAS and ▇▇. ▇▇▇▇▇▇▇▇ have all
requisite power and authority, corporate and otherwise, to own and
operate its properties and assets and to carry on its business as
presently conducted and as proposed to be conducted. Except for
the U. S. Bankruptcy Chapter 11 action, PSAS has not taken any
action, adopted any plan, or made any agreement in respect of any
merger, consolidation, sale of all or substantially all of its
assets, reorganization, recapitalization, dissolution, or
liquidation. PSAS and ▇▇. ▇▇▇▇▇▇▇▇ have all requisite legal or
corporate power and authority to execute and deliver this
Agreement and perform its obligations under the terms of this
Agreement. PSAS is not in violation of its Articles of
Incorporation or its by-laws and this Agreement does not conflict
with the foregoing or any other agreement.
PSAS has made and kept books and records and accounts, which, in
reasonable detail, accurately and fairly reflect its business
activities. PSAS has not engaged in any transaction, maintained
any bank account, or used any corporate funds except for
transactions, bank accounts, and funds which have been and are
reflected in its books and records.
5.2 The authorized capital stock of PSAS is 225,000 shares of Common
Stock of which 225,000 shares are issued and outstanding. The PSAS
outstanding shares are owned of record and beneficially, free and
clear of all liens, by ▇▇. ▇▇▇▇▇▇▇▇. The PSAS Shares have been
duly authorized and validly issued and are fully paid and
nonassessable and free of all preemptive and similar rights and
other liens. There are no options, warrants, convertible
securities, or other rights outstanding, or agreements existing,
that obligates PSAS to issue or sell any capital stock or other
security of or equity interest in PSAS.
5.3 PSAS has no subsidiaries, and, other than accounts receivable and
accounts payable existing in the ordinary course of its business,
PSAS owns no securities of, has no investment in, is not a
creditor of, nor is owed any debt or obligation of any kind, by
any person, except as disclosed and provided to PSA in written
form.
5.4 PSAS Financial Statements provided to PSA were prepared from the
books and records of PSAS and fairly represent PSAS's financial
condition and the results of its operations as of their respective
dates and for the periods then ended. Except for those liabilities
specifically reflected or reserved against in PSAS Financial
Statements or otherwise disclosed, PSAS does not have any direct
or indirect indebtedness, liabilities, claims, losses, damages,
deficiencies, obligations or responsibilities, known or unknown,
liquidated or unliquidated, accrued, absolute, contingent, or
otherwise.
5.5 PSAS has, within the times and in the manner prescribed by law,
filed all required tax returns, reports or similar statements
required to be filed with respect to any taxes including any
information return, claim for refund, amended return or
declaration of estimated tax, and has paid or provided for all
taxes shown thereon to be due and owing by it, and has paid all
deficiencies or other assessments of taxes, interest or penalties
owed by it. PSAS has delivered to PSA true and correct copies of
all federal, state and local income Tax Returns of PSAS for the
last two (2) complete fiscal years. PSAS is not a party to any tax
sharing agreement.
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5.6 PSAS is not in violation of any law or regulation or, except for
the U. S. Bankruptcy Chapter 11 action, under any order of any
court or federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality
having jurisdiction which would have a material adverse effect.
PSAS has conducted and is conducting its business in substantial
compliance with the requirements, standards, criteria and
conditions set forth in applicable federal, state and local
statutes, ordinances, permits, licenses, orders, approvals,
variances, rules, regulations, judgments and decrees and is not in
violation of any of the foregoing which might have a material
adverse effect on the business or assets of PSAS.
5.7 There are no claims, actions, suits, governmental investigation,
arbitration, legal, administrative or other proceeding of any
nature, pending or, to the knowledge of PSAS threatened against or
affecting PSAS or its operations, properties, assets, financial
condition or prospects at law or in equity, domestic or foreign
criminal or civil, or before or by any federal, state, municipal
or other governmental department, commission, board, bureau,
agency or instrumentality having jurisdiction over PSAS and no
notice of any claim, action, suit or proceeding, whether pending
or threatened, has been received. There are no judgments, orders,
injunctions, decrees, stipulations or awards against PSAS.
5.8 PSAS owns no real property. PSAS has good and marketable title to
each item of personal property, owned by it free and clear of all
liens. Each item of tangible personal property is in good
operating condition and repair, usable in the ordinary course of
business.
5.9 PSAS is the true and lawful owner of, or is licensed or otherwise
possesses legally enforceable rights to use, the registered and
unregistered United States or foreign trademarks, service marks,
trade names, patents and copyrights if any, now held by PSAS. PSAS
has no obligation to compensate any person for the use of any of
its intellectual property nor has PSAS granted to any person any
license, option or other rights to use in any manner any
intellectual property, whether requiring the payment of royalties
or not.
5.10 PSAS has provided PSA or, upon written request, will provide a
list or copies of all agreements, commitments, or instruments
binding PSAS, including all client contracts, employment
agreements, insurance prices, vender contracts, real and personal
property leases. Each such agreement, provided or not, to which
PSAS is a party is the valid and binding obligation of the other
contracting party, enforceable in all material respects in
accordance with its terms against the other contracting party and
is in full force and effect. No other contracting party to any
such agreement is now in material breach thereof, and there is not
now, nor has there been in the 12-month period prior to the date
hereof, any material disputes between either PSAS and any other
party. Furthermore, such agreements shall not contain any terms
and/or conditions that shall be materially adverse to the
continued operation of the business of PSAS.
5.11 PSAS has provided PSA or, upon written request, will provide a
list or copies of every employment agreement, commission
agreement, employee group or executive medical, life, or
disability insurance plan, and each incentive, bonus, profit
sharing, retirement, or severance plan now in effect or any
understanding between PSAS and any employee concerning the terms
of such employment. PSAS has delivered to PSA copies of any PSAS
employee handbook or policy statement, and complete and correct
information concerning PSAS's employees. All employees of PSAS are
employees at will and are subject to immediate termination. As of
the date of this Agreement, no employee of PSAS has submitted a
notice to terminate employment. PSAS is not a party to any
collective bargaining agreement or has any material labor
relations problems. Furthermore, such agreements shall not contain
any terms and/or conditions that shall be materially adverse to
the continued operation of the business of PSAS.
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5.12 No representation or warranty made by PSAS and ▇▇. ▇▇▇▇▇▇▇▇
herein, or in any agreement, list, or document delivered pursuant
to this Agreement contains any misstatement of any material fact
or omits to state, any material fact necessary to make any
material statement made herein not misleading. Furthermore, such
representations and warranties shall be true and accurate as of
the Closing and that there shall be no material change in the
business methodology of PSAS between the execution of this
Agreement and the Closing.
5.13 PSAS and ▇▇. ▇▇▇▇▇▇▇▇ and their respective independent counsel(s)
have been offered, and prior to Closing will have been offered,
every opportunity to ask any questions and make any inquiry with
respect to PSA and this Agreement. PSAS and ▇▇. ▇▇▇▇▇▇▇▇ have not
relied in any manner on any representations or other written or
oral materials furnished to it by PSA. PSAS and ▇▇. ▇▇▇▇▇▇▇▇ are
fully aware that this transaction is being executed upon and
within the representations, warranties and agreements as set forth
in this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF PSA. PSA hereby represents and warrants to
PSAS and ▇▇. ▇▇▇▇▇▇▇▇ as follows:
6.1 PSA is a corporation duly organized and validly existing under,
and by virtue of, the laws of the State of Nevada and is in good
standing under such laws. PSA has all requisite legal or corporate
power and authority to execute and deliver this Agreement and
perform its obligations under the terms of this Agreement.
Delivery of PSA Shares will transfer to ▇▇. ▇▇▇▇▇▇▇▇ good and
marketable title to PSA Shares, free and clear of any liens. PSA
is not in violation of its Certificate of Incorporation or Bylaws,
or in any material respect in violation of any term or provision
of any material agreement to which it is a party. Neither the
execution, delivery, nor performance of this Agreement have
resulted or will result in, any violation of, or conflict with, or
constitute a default under any of the foregoing corporate
documents or agreements.
6.2 Except for the foregoing, PSA makes no representations and
warranties to ▇▇. ▇▇▇▇▇▇▇▇ beyond terms and conditions contained
in this agreement.
7. BROKERAGE FEES. Neither PSA, PSAS, nor ▇▇. ▇▇▇▇▇▇▇▇ have incurred, or will
incur, directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement or
any transaction contemplated hereby.
8. GOVERNING LAW; JURISDICTION. (a) Notwithstanding the place where this
Agreement may be executed by any of the parties hereto, the parties expressly
agree that all the terms and provisions hereof shall be governed by, and
constituted in accordance with, the laws of the State of California, U.S.A.,
without regard to the choice of law principles thereof, (b) the parties hereto
that any and all matters in dispute or claim arising out of or relating to this
Agreement or breach thereof, shall be submitted to arbitration, in conformity
with the Federal Arbitration Act (Section 9 U.S. Code Section 901 ET SEQ), and
shall be conducted in Los Angeles in accordance with the Rules of the American
Arbitration Association. Any award of the arbitration of any dispute herein
shall be binding on both parties, and shall be submitted to a Court of competent
jurisdiction within the State of California This Agreement shall be governed by
and construed in accordance with the laws of the State of California.
9. FURTHER ASSURANCES. Each party to this Agreement shall execute all
instruments and documents and take all actions as may be reasonably required to
consummate the transaction effectuate this Agreement.
10. VENUE AND JURISDICTION. For purposes of venue and jurisdiction, this
Agreement shall be deemed made, and to be performed, in the City of Los Angeles,
California.
11. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one
document.
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12. TIME OF ESSENCE. Time and strict and punctual performance are of the essence
with respect to each provision of this Agreement.
13. ATTORNEY'S FEES. In the event any litigation, arbitration, mediation, or
other proceeding ("Proceeding") is initiated by one party against the other
party to enforce, interpret or otherwise obtain relief in connection with this
Agreement, the prevailing party in such Proceeding shall be entitled to recover
from the other party all costs, expenses, and attorney's fees relating to or
arising out of such Proceeding. Any such judgment or award shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, and attorney's fees.
14. MODIFICATION. This Agreement may be modified only in writing executed by the
parties to this Agreement.
15. PRIOR UNDERSTANDINGS. This Agreement contains the entire agreement between
the parties to this Agreement and is the final expression of such parties'
agreement with respect to the terms included in this Agreement. This Agreement
supersedes all negotiations, stipulations, understandings, agreements,
representations and warranties, if any, with respect to the transaction
contemplated herein which precede or accompany the execution of this Agreement.
16. PARTIAL INVALIDITY. Each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law. If any provision of this
Agreement or the application of such provision to any person or circumstance
shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected by such invalidity or unenforceability, unless such provision or such
application of such provision is essential to this Agreement.
17. NOTICES. All notices or other communications required or permitted to be
given to a party to this Note shall be in writing and shall be personally
delivered, sent by certified mail, postage prepaid, return receipt requested, or
sent by an overnight express courier service that provides written confirmation
of delivery, to such party at the following respective address:
"PSA" "▇▇. ▇▇▇▇▇▇▇▇"
PSA, Inc. Pacific States Airline Services, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇ Fax (▇▇▇) ▇▇▇-▇▇▇▇
Each such notice or other communication shall be deemed given,
delivered and received upon its actual receipt, except that if it is sent by
mail in accordance with this Section, then it shall be deemed given, delivered
and received three days after the date such notice or other communication is
deposited with the United States Postal Service in accordance with this Section.
Any party to this Agreement may give a notice of a change of its address to the
parties to this Agreement.
18. HEADINGS. The headings of the Section of this Agreement have been included
only for convenience, and shall not be deemed in any manner to modify or limit
any of the provisions of this Agreement, or be used in any manner in the
interpretation of this Agreement.
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Agreed and Accepted this twenty-first day of September 2001.
"PSAS"
Pacific States Airline Services, Inc.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
"▇▇. ▇▇▇▇▇▇▇▇"
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
"PSA"
PSA, Inc.:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman/CEO
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