EX-1.1 SHARE EXCHANGE AGREEMENT
EXECUTION COPY
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT, dated as of December 18, 2000, is by
and among Shopps.com, Inc., a Utah corporation (the "Company"), AccessTel,
Inc., a Delaware corporation ("AccessTel"), and the shareholders of
AccessTel listed on Schedule I hereto (the "Sellers") with reference to the
following:
W I T N E S S E T H:
A. The Sellers own 100% of the shares of common stock of AccessTel
in the denominations as set forth opposite their respective names on
SCHEDULE I to this Agreement which shares constitute all of the issued and
outstanding shares of capital stock of AccessTel (the "AccessTel Shares").
B. The Company desires to acquire from the Sellers, and the Sellers
desire to sell to the Company all of the AccessTel Shares in exchange for
the issuance by the Company of an aggregate of 36,100,540 shares (the
"Company Shares") of the Company's common stock, par value $.001 per share
(the "Company Common Stock"), on the terms and conditions set forth below.
C. The Company currently has 8,997,160 shares of Company Common
Stock issued and outstanding subject to the following:
(a) 3,600,000 outstanding Shares of Company Common Stock are
subject to stop transfer restrictions (the "Transfer Restricted Shares").
The Transfer Restricted Shares shall not be included in the total number of
shares outstanding for purposes of calculating the number shares issuable
to AccessTel at the Closing;
(b) 1,000,000 shares to be issued upon conversion of the
Company's Series A Preferred Stock which Series A Preferred Stock shall be
issued to certain creditors of the Company as soon as practicable after the
Closing (the "Creditors' Shares"). The Creditor Shares shall not be
included in the total number of shares outstanding for purposes of
calculating the number shares issuable to AccessTel at the Closing;
(c) 1,175,000 shares which will be issued at Closing pursuant to
a private placement of $587,500 (the "Private Placement");
(d) 1,574,000 shares which will be issued at Closing in
connection with the conversion of $393,600 in debt (the "Debt Conversion
Shares"); and
(e) 1,000,000 shares which will be issued at Closing to Gerard
Conca and Michelle Miller which will be subject to a pledge agreement by
and among Gerard Conca, Michele Miller and AccessTel (the "Conca Miller
Shares") and 11,740 shares to be issued at Closing pursuant to an existing
agreement with the Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and agreements set forth herein, the parties
hereto agree as follows:
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ARTICLE 1
EXCHANGE OF SHARES
1.1.EXCHANGE OF SHARES. Subject to the terms and conditions of this
Agreement, on the Closing Date (as hereinafter defined):
(a)the Company shall issue and deliver to each of the Sellers the
number of authorized but unissued shares of Company Common Stock set forth
opposite such Seller's name set forth on SCHEDULE I hereto; and
(b)the Sellers agree to deliver to the Company, the number of
shares of Common Stock, of AccessTel (the "AccessTel Common Stock") set
forth opposite such Seller's name on SCHEDULE I hereto along with an
appropriately executed stock power endorsed in favor of the Company.
1.2.TIME AND PLACE OF CLOSING. The closing of the transactions
contemplated hereby (the "Closing") shall take place at the offices of Loeb
& Loeb LLP at 10100 Santa Monica Boulevard, Suite 2100, Los Angeles,
California on the date hereof (the "Closing Date") at 10:00 A.M., Los
Angeles time.
ARTICLE 11
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Sellers, subject to the
exceptions specifically disclosed in the schedules supplied by the Company
to AccessTel and the Sellers, as follows:
2.1 DUE ORGANIZATION AND QUALIFICATION; SUBSIDIARIES; DUE
AUTHORIZATION.
(a)The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
formation, with full corporate power and authority to own, lease and
operate its respective business and properties and to carry on its
respective business in the places and in the manner as presently conducted
or proposed to be conducted. The Company is in good standing as a foreign
corporation in each jurisdiction in which the properties owned, leased or
operated, or the business conducted, by it requires such qualification
except for any such failure, which when taken together with all other
failures, is not likely to have a Material Adverse Effect on the business
of the Company taken as a whole. ("Material Adverse Effect" shall mean,
with respect to the Company on the one hand and AccessTel on the other
hand, the result of one or more events, changes or effects which,
individually or in the aggregate, would have a material adverse effect or
impact on the business, assets, results of operations, intellectual
property rights, prospects or financial condition of such party, taken as a
whole, or is reasonably likely to delay or prevent the consummation of the
transactions contemplated hereby).
(b)Except as set forth on Schedule 2.1, the Company does not own,
directly or indirectly, any capital stock, equity or interest in any
corporation, firm, partnership, joint venture or other entity.
(c)The Company has all requisite corporate power and authority to
execute and deliver this Agreement, and to consummate the transactions
contemplated hereby and thereby. The Company has taken all corporate
action necessary for the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, and this Agreement
constitutes the valid and binding obligation of the Company, enforceable
against the Company in accordance with its respective terms, except as may
be affected by bankruptcy, insolvency, moratoria or other similar laws
affecting the enforcement of creditors' rights generally and subject to the
qualification that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefore may be
brought.
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2.2 .NO CONFLICTS OR DEFAULTS. The execution and delivery of this
Agreement by the Company and the consummation of the transactions
contemplated hereby do not and shall not (a) contravene the Articles of
Incorporation or Bylaws of the Company or (b) with or without the giving of
notice or the passage of time (i) violate, conflict with, or result in a
breach of, or a default or loss of rights under, any material covenant,
agreement, mortgage, indenture, lease, instrument, permit or license to
which the Company is a party or by which the Company is bound, or any
judgment, order or decree, or any law, rule or regulation to which the
Company is subject, (ii) result in the creation of, or give any party the
right to create, any lien, charge, encumbrance or any other right or
adverse interest ("Liens") upon any of the assets of the Company, (iii)
terminate or give any party the right to terminate, amend, abandon or
refuse to perform, any material agreement, arrangement or commitment to
which the Company is a party or by which the Company's assets are bound, or
(iv) accelerate or modify, or give any party the right to accelerate or
modify, the time within which, or the terms under which, the Company is to
perform any duties or obligations or receive any rights or benefits under
any material agreement, arrangement or commitment to which it is a party.
2.3 .CAPITALIZATION. The authorized capital stock of the Company
immediately prior to giving effect to the transactions contemplated hereby
consists of 50,000,000 shares of Company Common Stock of which 8,997,160
shares of $.001 par value Common Stock are issued and outstanding as of the
date hereof and subject to the provisions of Recital C. All of the
outstanding shares of Common Stock are, and the Company Shares when issued
in accordance with the terms hereof, will be, duly authorized, validly
issued, fully paid and nonassessable, and have not been or, with respect to
the Company Shares, will not be issued in violation of any preemptive right
of stockholders. The Company Shares are not subject to any preemptive or
subscription right, any voting trust agreement or other contract,
agreement, arrangement, option, warrant, call, commitment or other right of
any character obligating or entitling the Company to issue, sell, redeem or
repurchase any of its securities, and there is no outstanding security of
any kind convertible into or exchangeable for Common Stock.
2.4 .FINANCIAL STATEMENTS. Schedule 2.4 contains copies of the audited
balance sheet of the Company at December 31, 1999 and the related
statements of operations, stockholders' (deficit) equity and cash flows for
the years ended December 31, 1999 and 1998, including the notes thereto,
and the unaudited balance sheet at June 30, 2000 and the related statement
of operations, stockholders (deficit) and cash flow for the quarter period
ended June 30, 2000 (all such statements being the "Company Financial
Statements"). The Financial Statements, together with the notes thereto,
have been prepared in accordance with U.S. generally accepted accounting
principles applied on a basis consistent throughout all periods presented,
subject to audit adjustments, which are not expected to be material. Such
statements present fairly the financial position of the Company as of the
dates and for the periods indicated. The books of account and other
financial records of the Company have been maintained in accordance with
good business practices.
2.5.FURTHER FINANCIAL MATTERS. The Company does not have any
liabilities or obligations, whether secured or unsecured, accrued,
determined, absolute or contingent, asserted or unasserted or otherwise,
which are required to be reflected or reserved in a balance sheet or the
notes thereto under generally accepted accounting principles, but which are
not reflected in the Company Financial Statements.
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2.6.TAXES. The Company has filed all United States federal, state,
county, local and foreign national, provincial and local returns and
reports which were required to be filed on or prior to the date hereof in
respect of all income, withholding, franchise, payroll, excise, property,
sales, use, value-added or other taxes or levies, imposts, duties, license
and registration fees, charges, assessments or withholdings of any nature
whatsoever (together, "Taxes"), and has paid all Taxes (and any related
penalties, fines and interest) which have become due pursuant to such
returns or reports or pursuant to any assessment which has become payable,
or, to the extent its liability for any Taxes (and any related penalties,
fines and interest) has not been fully discharged, the same have been
properly reflected as a liability on the books and records of the Company
and adequate reserves therefore have been established. All such returns
and reports filed on or prior to the date hereof have been properly
prepared and are true, correct (and to the extent such returns reflect
judgments made by the Company, as the case may be, such judgments were
reasonable under the circumstances) and complete in all material respects.
No tax return or tax return liability of the Company has been audited or,
presently under audit. The Company has not given or been requested to give
waivers of any statute of limitations relating to the payment of any Taxes
(or any related penalties, fines and interest). There are no claims
pending or, to the knowledge of the Company, threatened, against the
Company for past due Taxes. All payments for withholding taxes,
unemployment insurance and other amounts required to be paid for periods
prior to the date hereof to any governmental authority in respect of
employment obligations of the Company, including, without limitation,
amounts payable pursuant to the Federal Insurance Contributions Act, have
been paid or shall be paid prior to the Closing and have been duly provided
for on the books and records of the Company and in the Company Financial
Statements.
2.7.INDEBTEDNESS; CONTRACTS; NO DEFAULTS.
(a)Schedule 2.7 sets forth a true, complete and correct list of
all material instruments, agreements, indentures, mortgages, guarantees,
notes, commitments, accommodations, letters of credit or other arrangements
or understandings, whether written or oral, to which the Company is a party
(collectively, the "Company Agreements").
(b)Except as disclosed in Schedule 2.7, neither the Company, nor,
to the Company's knowledge, any other person or entity is in breach in any
material respect of, or in default in any material respect under, any
contract, agreement, arrangement, commitment or plan to which the Company
is a party, and no event or action has occurred, is pending or is
threatened, which, after the giving of notice, passage of time or
otherwise, would constitute or result in such a material breach or material
default by the Company or any other person or entity. The Company has not
received any notice of default under any contract, agreement, arrangement,
commitment or plan to which it is a party, which default has not been cured
to the satisfaction of, or duly waived by, the party claiming such default
on or before the date hereof.
2.8.PERSONAL PROPERTY. The Company has good and marketable title to
all of its tangible personal property and assets, including, without
limitation, all of the assets reflected in the Company Financial Statements
that have not been disposed of in the ordinary course of business since
March 31, 2000 free and clear of all Liens or mortgages, except for any
Lien for current taxes not yet due and payable and such restrictions, if
any, on the disposition of securities as may be imposed by federal or
applicable state securities laws. Schedule 2.8 sets forth a true and
complete list of all personal property owned by, or leased or subleased by
or to, the Company.
2.9.REAL PROPERTY. Schedule 2.9 sets forth a true and complete list of
all real property owned by, or leased or subleased by or to, the Company.
2.10.COMPLIANCE WITH LAW. Except as set forth in Schedule 2.10, the
Company is not conducting its business or affairs in violation of any
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applicable federal, state or local law, ordinance, rule, regulation, court
or administrative order, decree or process, or any requirement of insurance
carriers. The Company has not received any notice of violation or claimed
violation of any such law, ordinance, rule, regulation, order, decree,
process or requirement.
2.11.LITIGATION. Except as set forth on Schedule 2.12, there is no
claim, dispute, action, suit, proceeding or investigation pending or
threatened, against or affecting the business of the Company, or
challenging the validity or propriety of the transactions contemplated by
this Agreement, at law or in equity or admiralty or before any federal,
state, local, foreign or other governmental authority, board, agency,
commission or instrumentality, nor has any such claim, dispute, action,
suit, proceeding or investigation been pending or threatened, during the
12-month period preceding the date hereof; (b) there is no outstanding
judgment, order, writ, ruling, injunction, stipulation or decree of any
court, arbitrator or federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality, against or
materially affecting the business of the Company; and (c) the Company has
not received any written or verbal inquiry from any federal, state, local,
foreign or other governmental authority, board, agency, commission or
instrumentality concerning the possible violation of any law, rule or
regulation or any matter disclosed in respect of its business.
2.12.ARTICLES OF INCORPORATION AND BYLAWS; MINUTE BOOKS. The copies of
the Articles of Incorporation and Bylaws (or similar governing documents)
of the Company, and all amendments to each are true, correct and complete.
The minute books of the Company contains true and complete records of all
meetings and consents in lieu of meetings of their respective Board of
Directors (and any committees thereof), or similar governing bodies, since
the time of their respective organization. The stock books of the Company
are true, correct and complete.
2.13.EMPLOYEE BENEFIT PLANS. The Company does not maintain, nor has the
Company maintained in the past, any employee benefit plans (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")), or any plans, programs, policies, practices,
arrangements or contracts (whether group or individual) providing for
payments, benefits or reimbursements to employees of the Company, former
employees, their beneficiaries and dependents under which such employees,
former employees, their beneficiaries and dependents are covered through an
employment relationship with the Company, any entity required to be
aggregated in a controlled group or affiliated service group with the
Company for purposes of ERISA or the Internal Revenue Code of 1986 (the
"Code") (including, without limitation, under Section 414(b), (c), (m) or
(o) of the Code or Section 4001 of ERISA, at any relevant time.
2.14.PATENTS; TRADEMARKS AND INTELLECTUAL PROPERTY RIGHTS. The Company
does not own or possesses any patents, trademarks, service marks, trade
names, copyrights, trade secrets, licenses, information, Internet web
site(s) or proprietary rights of any nature.
2.15.BROKERS. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by the Company
directly with the Sellers without the intervention of any individual,
corporation, partnership, joint venture, trust, association, organization,
or other entity (collectively, a "Person") on behalf of the Company in such
a manner as to give rise to any valid claim by any Person against any
Seller for a finder's fee, brokerage commission or similar payment.
2.16.AFFILIATE TRANSACTIONS. Except as disclosed in Schedule 2.16
neither the Company nor any officer, director or employee of the Company
(or any of the relatives or affiliates of any of the aforementioned
Persons) is a party to any agreement, contract, commitment or transaction
with the Company or affecting the business of the Company, or has any
interest in any property, whether real, personal or mixed, or tangible or
intangible, used in or necessary to the Company which will subject the
Sellers to any liability or obligation from and after the Closing Date.
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2.17.TRADING. The Company Common Stock is currently listed for trading
on the OTC Bulletin Board, and the Company has received no notice that the
Company Common Stock is subject to being delisted there from.
2.18.COMPLIANCE. The Company has complied with all applicable foreign,
federal and state laws, rules and regulations, including, without
limitation, the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the Securities Act of 1933, as amended
(the "Securities Act") and is current in its filings.
2.19.FILINGS. None of the filings made by the Company under the
Exchange Act or the Securities Act make any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were made,
not misleading.
2.20.PERMITS AND LICENSES. Except as set forth in Schedule 2.21,
AccessTel has all certificates of occupancy, rights, permits, certificates,
licenses, franchises, approvals and other authorizations as are reasonably
necessary to conduct its respective business and to own, lease, use,
operate and occupy its assets, at the places and in the manner now
conducted and operated, except those the absence of which would not
materially adversely affect its respective business.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers represent and warrant to the Company, subject to the
exceptions specifically disclosed in the schedules supplied by the Sellers
to the Company, as follows:
3.1 DUE ORGANIZATION AND QUALIFICATION; SUBSIDIARIES;DUE AUTHORIZATION.
(a)AccessTel is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
formation, with full corporate power and authority to own, lease and
operate its respective business and properties and to carry on its
respective business in the places and in the manner as presently conducted
or proposed to be conducted. AccessTel is in good standing as a foreign
corporation in each jurisdiction in which the properties owned, leased or
operated, or the business conducted, by it requires such qualification
except for any such failure, which when taken together with all other
failures, is not likely to have a Material Adverse Effect on the business
of AccessTel taken as a whole.
(b)Except as disclosed in SCHEDULE 3.1(B), AccessTel does not
own, directly or indirectly, any capital stock, equity or interest in any
corporation, firm, partnership, joint venture or other entity.
(c)Each of AccessTel and the Sellers has all requisite power
and authority to execute and deliver this Agreement, and to consummate the
transactions contemplated hereby and thereby. Each of AccessTel and the
Sellers has taken all corporate action necessary for the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby, and this Agreement constitutes the valid and binding
obligation of each of AccessTel and the Sellers, enforceable against each
of AccessTel and the Sellers in accordance with its respective terms,
except as may be affected by bankruptcy, insolvency, moratoria or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding
therefore may be brought.
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3.2. NO CONFLICTS OR DEFAULTS. The execution and delivery of this
Agreement by each of AccessTel and the Sellers and the consummation of the
transactions contemplated hereby do not and shall not (a) contravene the
Articles of Incorporation or Bylaws of AccessTel or the governing documents
of the Sellers, if applicable, or (b) with or without the giving of notice
or the passage of time, (i) violate, conflict with, or result in a breach
of, or a default or loss of rights under, any material covenant, agreement,
mortgage, indenture, lease, instrument, permit or license to which
AccessTel or the Sellers is a party or by which AccessTel or the Sellers or
any of their respective assets are bound, or any judgment, order or decree,
or any law, rule or regulation to which AccessTel, or the Sellers or any of
their respective assets are subject, (ii) result in the creation of, or
give any party the right to create, any Lien upon any of the assets of
AccessTel, (iii) terminate or give any party the right to terminate, amend,
abandon or refuse to perform, any material agreement, arrangement or
commitment to which AccessTel is a party or by which AccessTel or any of
its assets are bound, or (iv) accelerate or modify, or give any party the
right to accelerate or modify, the time within which, or the terms under
which, AccessTel is to perform any duties or obligations or receive any
rights or benefits under any material agreement, arrangement or commitment
to which it is a party.
3.3. CAPITALIZATION. The authorized capital stock of AccessTel
immediately prior to giving effect to the transactions contemplated hereby
consists of 20,000,000 shares of which 10,000,000 shares are common stock,
par value $.001 per share ("AccessTel Common Stock") and 10,000,000 shares
of preferred stock, par value $.001 per share. As of the date hereof , on
a fully diluted basis, there are [9,500,000] shares of AccessTel Common
Stock issued and outstanding. Set forth in Schedule 3.3 is a list of all
stockholders of AccessTel, setting forth their names, addresses and number
of shares owned. All of the outstanding shares of AccessTel Common Stock
are, and AccessTel Shares when transferred in accordance with the terms
hereof, will be, duly authorized, validly issued, fully paid and
nonassessable, and have not been or, with respect to AccessTel Shares, will
not be transferred in violation of any rights of third parties. The
AccessTel Shares are not subject to any preemptive or subscription right,
any voting trust agreement or other contract, agreement, arrangement,
option, warrant, call, commitment or other right of any character
obligating or entitling AccessTel to issue, sell, redeem or repurchase any
of its securities, and there is no outstanding security of any kind
convertible into or exchangeable for AccessTel Common Stock.
3.4. FINANCIAL STATEMENTS. Schedule 3.4 contains copies of the
consolidated balance sheets of AccessTel at September 30, 2000, and the
related statements of operations, stockholders' equity and cash flows for
the period then ended, including the notes thereto, as audited by certified
public accountants (all such statements being the "AccessTel Financial
Statements"). The AccessTel Financial Statements, together with the notes
thereto, have been prepared in accordance with U.S. generally accepted
accounting principles applied on a basis consistent throughout all periods
presented, subject to audit adjustments, which are not expected to be
material. Such statements present fairly the financial position of
AccessTel as of the dates and for the periods indicated. The books of
account and other financial records of AccessTel have been maintained in
accordance with good business practices.
3.5. FURTHER FINANCIAL MATTERS. Except as set forth in Schedule 3.5,
AccessTel does not have any material liabilities or obligations, whether
secured or unsecured, accrued, determined, absolute or contingent, asserted
or unasserted or otherwise, which are required to be reflected or reserved
in a balance sheet or the notes thereto under generally accepted accounting
principles, but which are not reflected in the AccessTel Financial
Statements.
3.6. TAXES. AccessTel has filed all United States federal, state,
county, local and foreign national, provincial and local tax returns and
reports which were required to be filed on or prior to the date hereof, and
has paid all Taxes (and any related penalties, fines and interest) which
have become due pursuant to such returns or reports or pursuant to any
assessment which has become payable, or, to the extent its liability for
any Taxes (and any related penalties, fines and interest) has not been
fully discharged, the same have been properly reflected as a liability on
the books and records of AccessTel and adequate reserves therefore have
been established. All such returns and reports filed on or prior to the
date hereof have been properly prepared and are true, correct (and to the
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extent such returns reflect judgments made by AccessTel, such judgments
were reasonable under the circumstances) and complete in all material
respects. Except as indicated in Schedule 3.6, no extension for the filing
of any such return or report is currently in effect. Except as indicated
in Schedule 3.6, no tax return or tax return liability of AccessTel has
been audited or, presently under audit. All taxes and any penalties, fines
and interest which have been asserted to be payable as a result of any
audits have been paid. Except as indicated in Schedule 3.6, AccessTel has
never given or been requested to give waivers of any statute of limitations
relating to the payment of any Taxes (or any related penalties, fines and
interest). There are no claims pending or threatened against AccessTel for
past due Taxes. Except as indicated in Schedule 3.6, all payments for
withholding taxes, unemployment insurance and other amounts required to be
paid for periods prior to the date hereof to any governmental authority in
respect of employment obligations of AccessTel including, without
limitation, amounts payable pursuant to the Federal Insurance Contributions
Act, have been paid or shall be paid prior to the Closing and have been
duly provided for on the books and records of AccessTel and in the
AccessTel Financial Statements.
3.7.INDEBTEDNESS; CONTRACTS; NO DEFAULTS.
(a)SCHEDULE 3.7 sets forth a true, complete and correct list
of all material instruments, agreements, indentures, mortgages, guarantees,
notes, commitments, accommodations, letters of credit or other arrangements
or understandings, whether written or oral, to which AccessTel is a party
(collectively, the "AccessTel Agreements"). An agreement shall not be
considered material for the purposes of this Section 3.7(a) if it provides
for expenditures or receipts of less than $100,000 and has been entered
into by AccessTel in the ordinary course of business. The AccessTel
Operating Agreements constitute all of the contracts, agreements,
understandings and arrangements required for the operation of the business
of AccessTel or which have a material effect thereon. Copies of all such
material written AccessTel Operating Agreements have previously been
delivered or otherwise made available to the Company and such copies are
true, complete and correct as of the date hereof.
(b)Except as disclosed in Schedule 3.7, neither AccessTel nor,
to AccessTel's knowledge, any other person or entity is in breach in any
material respect of, or in default in any material respect under, any
material contract, agreement, arrangement, commitment or plan to which
AccessTel is a party, and no event or action has occurred, is pending or is
threatened, which, after the giving of notice, passage of time or
otherwise, would constitute or result in such a material breach or material
default by AccessTel or, to the knowledge of AccessTel, any other person or
entity. AccessTel has not received any notice of default under any
contract, agreement, arrangement, commitment or plan to which it is a
party, which default has not been cured to the satisfaction of, or duly
waived by, the party claiming such default on or before the date hereof.
3.8. PERSONAL PROPERTY. AccessTel has good and marketable title to all
of its tangible personal property and assets, including, without
limitation, all of the assets reflected in the AccessTel Financial
Statements that have not been disposed of in the ordinary course of
business since September 30, 2000, free and clear of all Liens or
mortgages, except for any Lien for current taxes not yet due and payable
and such restrictions, if any, on the disposition of securities as may be
imposed by federal or applicable state securities laws. Section 3.8 sets
forth a true and complete list of all personal property owned by, or leased
or subleased by or to, AccessTel.
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3.9.REAL PROPERTY.
(a) SCHEDULE 3.9 sets forth a true and complete list of all
real property owned by, or leased or subleased by or to, AccessTel.
(b )Except as set forth in SCHEDULE 3.9, each lease to which
AccessTel is a party is valid, binding and in full force and effect with
respect to AccessTel and, to the knowledge of AccessTel, all other parties
thereto; no notice of default or termination under any such lease is
outstanding.
3.10. COMPLIANCE WITH LAW. Except as set forth in Schedule 3.10,
AccessTel is not conducting its respective business or affairs in material
violation of any applicable law, ordinance, rule, regulation, court or
administrative order, decree or process, or any requirement of insurance
carriers. AccessTel has not received any notice of violation or claimed
violation of any such law, ordinance, rule, regulation, order, decree,
process or requirement.
3.11. ORDINARY COURSE. On September 30, 2000 AccessTel has conducted its
business, maintained its real property and equipment and kept its books of
account, records and files, substantially in the same manner as previously
conducted, maintained or kept and solely in the ordinary course.
3.12. NO ADVERSE CHANGES. Except as set forth in Schedule 3.12, since
September 30, 2000 there has not been (a) any material adverse change in
the business, prospects, the financial or other condition, or the
respective assets or liabilities of AccessTel as reflected in the AccessTel
Financial Statements, (b) any material loss sustained by AccessTel,
including, but not limited to any loss on account of theft, fire, flood,
explosion, accident or other calamity, whether or not insured, which has
materially and adversely interfered, or may have a Material Adverse Effect
on AccessTel's business taken as a whole, or (c) any event, condition or
state of facts, including, without limitation, the enactment, adoption or
promulgation of any law, rule or regulation, the occurrence of which
materially and adversely does or would affect the results of operations or
the business or financial condition of AccessTel.
3.13. LITIGATION. a) Except as set forth in Schedule 3.13, there is no
claim, dispute, action, suit, proceeding or investigation pending or, to
the knowledge of AccessTel, threatened, against or affecting the business
of AccessTel, or challenging the validity or propriety of the transactions
contemplated by this Agreement, at law or in equity or admiralty or before
any federal, state, local, foreign or other governmental authority, board,
agency, commission or instrumentality, nor to the knowledge of AccessTel,
has any such claim, dispute, action, suit, proceeding or investigation been
pending or threatened, during the 12-month period preceding the date
hereof; (b) there is no outstanding judgment, order, writ, ruling,
injunction, stipulation or decree of any court, arbitrator or federal,
state, local, foreign or other governmental authority, board, agency,
commission or instrumentality, against or materially affecting the business
of AccessTel; and (c) AccessTel has not received any written or verbal
inquiry from any federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality concerning the
possible violation of any law, rule or regulation or any matter disclosed
in respect of its business.
3.14.INSURANCE. AccessTel maintains insurance against all risks
customarily insured against by companies in its industry. All such
policies are in full force and effect, and AccessTel has not received any
notice from any insurance company suspending, revoking, modifying or
canceling (or threatening such action) any insurance policy issued to
AccessTel.
3.15.CERTIFICATE OF INCORPORATION AND BYLAWS; MINUTE BOOKS. The copies
of the Certificate of Incorporation and Bylaws (or similar governing
documents) of AccessTel, and all amendments to each are true, correct and
complete. The minute book of AccessTel contains true and complete records
of all meetings and consents in lieu of meetings of their respective Board
of Directors (and any committees thereof), or similar governing bodies,
since the time of their respective organization. The stock book of
AccessTel is true, correct and complete.
9
<PAGE>
3.16.EMPLOYEE BENEFIT PLANS. AccessTel does not maintain, nor has
AccessTel maintained in the past, any employee benefit plans (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")), or any plans, programs, policies, practices,
arrangements or contracts (whether group or individual) providing for
payments, benefits or reimbursements to employees of AccessTel, former
employees, their beneficiaries and dependents under which such employees,
former employees, their beneficiaries and dependents are covered through an
employment relationship with AccessTel, any entity required to be
aggregated in a controlled group or affiliated service group with AccessTel
for purposes of ERISA or the Internal Revenue Code of 1986 (the "Code")
(including, without limitation, under Section 414(b), (c), (m) or (o) of
the Code or Section 4001 of ERISA, at any relevant time.
3.17.PATENTS; TRADEMARKS AND INTELLECTUAL PROPERTY RIGHTS. AccessTel
owns or possesses sufficient legal rights to all patents, trademarks,
service marks, trade names, copyrights, trade secrets, licenses,
information, internet web site(s) proprietary rights and processes
necessary for its business as now conducted without any conflict with or
infringement of the rights of others. There are no outstanding options,
licenses or agreements of any kind relating to the foregoing, and AccessTel
is not bound by, or a party to, any options, licenses or agreements of any
kind with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information, proprietary rights and
processes of any other person or entity.
3.18.BROKERS. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by AccessTel
directly with the Sellers without the intervention of any Person on behalf
of AccessTel in such a manner as to give rise to any valid claim by any
Person against any Sellers for a finder's fee, brokerage commission or
similar payment.
3.19.PURCHASE FOR INVESTMENT.
(a)The Sellers are acquiring the Company Shares for investment
for the Sellers' own account and not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and the Sellers
have no present intention of selling, granting any participation in, or
otherwise distributing the same. The Sellers further represent that there
are no contracts, undertakings, agreements or arrangements with any person
to sell, transfer or grant participation to such person or to any third
person, with respect to any of the Company Shares.
(b)The Sellers understand that the Company Shares are not
registered under the Act on the ground that the sale and the issuance of
securities hereunder is exempt from registration under the Securities Act
pursuant to Section 4(2) thereof, and that the Company's reliance on such
exemption is predicated on the Seller's representations set forth herein.
The Seller is an "accredited investor" as that term is defined in Rule
501(a) of Regulation D under the Securities Act.
3.20.INVESTMENT EXPERIENCE. The Sellers acknowledge that it can bear
the economic risk of its investment, and has such knowledge and experience
in financial and business matters that it is capable of evaluating the
merits and risks of the investment in the Company Shares.
3.21.INFORMATION. The Sellers have carefully reviewed such information,
as the Seller deemed necessary to evaluate an investment in the Company
Shares. To the full satisfaction of the Seller, it has been furnished all
materials that it has requested relating to the Company and the issuance of
the Company Shares hereunder, and the Sellers have been afforded the
opportunity to ask questions of representatives of the Company to obtain
any information necessary to verify the accuracy of any representations or
information made or given to the Sellers. Notwithstanding the foregoing,
nothing herein shall derogate from or otherwise modify the representations
and warranties of the Company set forth in this Agreement, on which the
Seller has relied in making an exchange of the AccessTel Shares for the
Company Shares.
10
<PAGE>
3.22.RESTRICTED SECURITIES. The Sellers understand that the Company
Shares may not be sold, transferred, or otherwise disposed of without
registration under the Securities Act or an exemption there from, and that
in the absence of an effective registration statement covering the Company
Shares or any available exemption from registration under the Securities
Act, the Company Shares must be held indefinitely. The Sellers are aware
that the Company Shares may not be sold pursuant to Rule 144 promulgated
under the Securities Act unless all of the conditions of that Rule are met.
Among the conditions for use of Rule 144 may be the availability of current
information to the public about the Company.
Article IV
INDEMNIFICATION
4.1.INDEMNITY OF THE COMPANY. The Company agrees to defend, indemnify
and hold harmless the Seller from and against, and to reimburse the Seller
with respect to, all liabilities, losses, costs and expenses, including,
without limitation, reasonable attorneys' fees and disbursements, asserted
against or incurred by the Seller by reason of, arising out of, or in
connection with any material breach of any representation or warranty
contained in this Agreement made by the Company or in any document or
certificate delivered by the Company pursuant to the provisions of this
Agreement or in connection with the transactions contemplated thereby.
4.2.INDEMNITY OF THE COMPANY. The Sellers, jointly and severally,
agree to defend, indemnify and hold harmless the Company from and against,
and to reimburse the Company with respect to, all liabilities, losses,
costs and expenses, including, without limitation, reasonable attorneys'
fees and disbursements, asserted against or incurred by the Seller by
reason of, arising out of, or in connection with any material breach of any
representation or warranty contained in this Agreement and made by the
Company or in any document or certificate delivered by the Company pursuant
to the provisions of this Agreement or in connection with the transactions
contemplated thereby.
4.3.INDEMNIFICATION PROCEDURE. A party (an "Indemnified Party")
seeking indemnification shall give prompt notice to the other party (the
"Indemnifying Party") of any claim for indemnification arising under this
Article 4. The Indemnifying Party shall have the right to assume and to
control the defense of any such claim with counsel reasonably acceptable to
such Indemnified Party, at the Indemnifying Party's own cost and expense,
including the cost and expense of reasonable attorneys' fees and
disbursements in connection with such defense, in which event the
Indemnifying Party shall not be obligated to pay the fees and disbursements
of separate counsel for such in such action. In the event, however, that
such Indemnified Party's legal counsel shall determine that defenses may be
available to such Indemnified Party that are different from or in addition
to those available to the Indemnifying Party, in that there could
reasonably be expected to be a conflict of interest if such Indemnifying
Party and the Indemnified Party have common counsel in any such proceeding,
or if the Indemnified Party has not assumed the defense of the action or
proceedings, then such Indemnifying Party may employ separate counsel to
represent or defend such Indemnified Party, and the Indemnifying Party
shall pay the reasonable fees and disbursements of counsel for such
Indemnified Party. No settlement of any such claim or payment in
connection with any such settlement shall be made without the prior consent
of the Indemnifying Party which consent shall not be unreasonably withheld.
11
<PAGE>
ARTICLE V
DELIVERIES
5.1.ITEMS TO BE DELIVERED TO ACCESSTEL PRIOR TO OR AT CLOSING BY THE
COMPANY.
(a)Articles of Incorporation and amendments thereto, Bylaws
and certificate of good standing in the Company's state of incorporation;
(b)all applicable schedules hereto;
(c)all minutes and resolutions of board of director and
shareholder meetings in possession of the Company;
(d)shareholder list;
(e)all financial statements and tax returns in possession of
the Company;
f)copies of all SEC filings;
(g)resolution from the Company's current directors appointing
designees of AccessTel to the Company's Board of Directors;
(h)letters of resignation from the Company's current officers
and directors to be effective upon Closing and after the appointments
described in this section;
(i)certificates representing 36,100,540 shares of the
Company's $.001 par value common stock issued in the denominations as set
forth opposite their respective names on Schedule I to this Agreement, duly
authorized, validly issued, fully paid for and non-assessable;
(j)certificates representing 3,760,740 shares of the Company's
$.001 par value common stock issued in the denominations as set forth
opposite their respective names on Schedule II to this Agreement, duly
authorized, validly issued, fully paid for and non-assessable;
(k)copies of board, and if applicable, shareholder resolutions
approving this transaction and authorizing the issuances of the shares
hereto;
(l) a certificate, in form reasonably acceptable to AccessTel,
signed by an authorized officer of the Company dated the Closing Date,
certifying that the representations and warranties made by the Company
shall be accurate in all material respects as of the date hereof and the
terms and conditions of this Agreement to be performed and complied with by
the Company shall have been performed and complied with the Company;
(m) a letter of instruction from Loeb & Loeb LLP, counsel to the
Company, addresses to the Transfer Agent regarding the issuance of the
Conca Miller Shares; and
(n) any other document reasonably requested by AccessTel that it
deems necessary for the consummation of this transaction.
5.2.ITEMS TO BE DELIVERED TO THE COMPANY PRIOR TO OR AT CLOSING BY
ACCESSTEL.
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(a)Charter documents and certificate of good standing in
AccessTel's jurisdiction of incorporation;
(b)all applicable schedules hereto;
(c)all minutes and resolutions of board of director and
shareholder meetings in possession of the AccessTel;
(d)shareholder list;
(e)resolution from AccessTel current directors appointing
designees of AccessTel to the Company's Board of Directors;
(f)certificates representing 100% of AccessTel's common stock
as set forth opposite their respective names on SCHEDULE I to this
Agreement, duly authorized, validly issued, fully paid for and non-
assessable;
(g)copies of board, and if applicable, shareholder resolutions
approving this transaction and authorizing the issuances of the shares
hereto;
(h) a certificate, in form reasonably acceptable to the Company,
signed by an authorized officer of AccessTel dated the Closing Date,
certifying that the representations and warranties made by the AccessTel
shall be accurate in all material respects as of the date hereof and the
terms and conditions of this Agreement to be performed and complied with by
AccessTel shall have been performed and complied with by AccessTel; and
(i) any other document reasonably requested by the Company that
it deems necessary for the consummation of this transaction.
ARTICLE VI
CONDITIONS PRECEDENT
6.1.CONDITIONS TO OBLIGATIONS OF THE SELLERS. The obligations of the
Sellers shall be subject to fulfillment prior to or at the Closing, of each
of the following conditions:
(a)the Company shall have paid all of its own costs and
expenses associated with this Agreement and the transactions contemplated
herein;
(b)except as disclosed herein, as of the Closing, the Company
shall have no assets and no liabilities whatsoever, contingent or
otherwise;
(c)the Company shall have received all of the regulatory,
shareholder and other third party consents, permits, approvals and
authorizations necessary to consummate the transactions contemplated by
this Agreement;
(d) the Company Common Stock shall be currently listed for
trading on the OTC Bulletin Board and the Company shall have received no
notice that the Company Common Stock is subject to being delisted
therefrom; and
e) the Private Placement shall have been completed.
13
<PAGE>
6.2.CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligations of the
Company shall be subject to fulfillment prior to or at the Closing, of each
of the following conditions:
(a)AccessTel and the Seller shall have paid all of their own
costs and expenses associated with this Agreement and the transactions
contemplated herein; and
(b)AccessTel and the Seller shall have received all of the
regulatory, shareholder and other third party consents, permits, approvals
and authorizations necessary to consummate the transactions contemplated by
this Agreement.
ARTICLE VII
COVENANTS
7.1.ISSUANCE OF ADDITIONAL COMPANY SHARES. It is the express agreement
and understanding of the parties that the Sellers are and shall be entitled
to receive at the Closing 80% (the "Allocable Portion") of the issued and
outstanding capital stock of the Company as of the Closing on a fully
diluted basis after taking into account the (a) issuance of the Company
Shares, (b) the deemed issuance of the Conca Miller Shares, and (c) the
cancellation of the Transfer Restricted Shares. To the extent the Company
is required to issue any additional shares of its capital stock as a result
of (a) the satisfaction of any debt incurred prior to the Closing Date,
including the Creditors' Shares and the Debt Conversion Shares, or (b) the
Private Placement (up to $600,000) or to the extent that any of the
Transfer Restricted Shares are not cancelled within one year from the date
hereof, the Company shall promptly issue to the Sellers (PRO RATA)
additional Company Shares so as to maintain the Allocable Portion.
ARTICLE VIII.
NO PUBLIC DISCLOSURE
8.1.NO PUBLIC DISCLOSURE. Without the prior written consent of the
others, none of the Company, AccessTel or the Seller will, and will each
cause their respective representatives not to, make any release to the
press or other public disclosure with respect to either the fact that
discussions or negotiations have taken place concerning the transactions
contemplated by this Agreement, the existence or contents of this Agreement
or any prior correspondence relating to this transactions contemplated by
this Agreement, except for such public disclosure as may be necessary, in
the written opinion of outside counsel (reasonably satisfactory to the
other parties) for the party proposing to make the disclosure not to be in
violation of or default under any applicable law, regulation or
governmental order. If either party proposes to make any disclosure based
upon such an opinion, that party will deliver a copy of such opinion to the
other party, together with the text of the proposed disclosure, as far in
advance of its disclosure as is practicable, and will in good faith consult
with and consider the suggestions of the other party concerning the nature
and scope of the information it proposes to disclose.
ARTICLE IX
CONFIDENTIAL INFORMATION
9.1.CONFIDENTIAL INFORMATION. In connection with the negotiation of
this Agreement and the consummation of the transactions contemplated
hereby, each party hereto will have access to data and confidential
information relating to the other party. Each party hereto shall treat
such data and information as confidential, preserve the confidentiality
thereof and not duplicate or use such data or information, except in
connection with the transactions contemplated hereby, and in the event of
14
<PAGE>
the termination of this Agreement for any reason whatsoever, each party
hereto shall return to the other all documents, work papers and other
material (including all copies thereof) obtained in connection with the
transactions contemplated hereby and will use reasonable efforts, including
instructing its employees who have had access to such information, to keep
confidential and not to use any such data or information; provided,
however, that such obligations shall not apply to any data and information
(i) which at the time of disclosure, is available publicly, (ii) which,
after disclosure, becomes available publicly through no fault of the
receiving party, (iii) which the receiving party knew or to which the
receiving party had access prior to disclosure by the disclosing party,
(iv) which is required by law, regulation or exchange rule, or in
connection with legal process, to be disclosed, (v) which is disclosed by a
receiving party to its attorneys or accountants, who shall respect the
above restrictions, or (vi) which is obtained in connection with any Tax
matters and is disclosed in connection with the filing of Tax returns or
claims for refund or in conducting an audit or other proceeding.
ARTICLE X
TERMINATION
10.1.TERMINATION. This Agreement may be terminated at any time before
or, at Closing, by:
(a)the mutual agreement of the parties;
(b)any party if:
(i)any provision of this Agreement applicable to a party
shall be materially untrue or fail to be accomplished;
(ii)any legal proceeding shall have been instituted or
shall be imminently threatening to delay, restrain or prevent the
consummation of this Agreement; or
(iii)the conditions precedents to Closing are not
satisfied.
Upon termination of this Agreement for any reason, in accordance
with the terms and conditions set forth in this paragraph, each said party
shall bear all costs and expenses as each party has incurred and no party
shall be liable to the other.
ARTICLE XI
MISCELLANEOUS
11.1.SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations and warranties and statements made by a party to in this
Agreement or in any document or certificate delivered pursuant hereto shall
survive the Closing Date for so long as the applicable statute of
limitations shall remain open. Each of the parties hereto is executing and
carrying out the provisions of this agreement in reliance upon the
representations, warranties and covenants and agreements contained in this
agreement or at the closing of the transactions herein provided for and not
upon any investigation which it might have made or any representations,
warranty, agreement, promise or information, written or oral, made by the
other party or any other person other than as specifically set forth
herein.
11.2.ACCESS TO BOOKS AND RECORDS. During the course of this
transaction through Closing, each party agrees to make available for
inspection all corporate books, records and assets, and otherwise afford to
each other and their respective representatives, reasonable access to all
documentation and other information concerning the business, financial and
legal conditions of each other for the purpose of conducting a due
diligence investigation thereof. Such due diligence investigation shall be
for the purpose of satisfying each party as to the business, financial and
legal condition of each other for the purpose of determining the
desirability of consummating the proposed transaction. The parties further
agree to keep confidential and not use for their own benefit, except in
accordance with this Agreement any information or documentation obtained in
connection with any such investigation.
15
<PAGE>
11.3FURTHER ASSURANCES. If, at any time after the Closing, the parties
shall consider or be advised that any further deeds, assignments or
assurances in law or that any other things are necessary, desirable or
proper to complete the merger in accordance with the terms of this
agreement or to vest, perfect or confirm, of record or otherwise, the title
to any property or rights of the parties hereto, the parties agree that
their proper officers and directors shall execute and deliver all such
proper deeds, assignments and assurances in law and do all things
necessary, desirable or proper to vest, perfect or confirm title to such
property or rights and otherwise to carry out the purpose of this
Agreement, and that the proper officers and directors the parties are fully
authorized to take any and all such action.
11.4NOTICE. All communications, notices, requests, consents or demands
given or required under this Agreement shall be in writing and shall be
deemed to have been duly given when delivered to, or received by prepaid
registered or certified mail or recognized overnight courier addressed to,
or upon receipt of a facsimile sent to, the party for whom intended, as
follows, or to such other address or facsimile number as may be furnished
by such party by notice in the manner provided herein:
If to the Company:
Shopps.Com, Inc.
115 Newtown Road
Plainview, New York 11802
Attn: Jerry Conca
with a copy to:
David L. Ficksman, Esq.
Loeb & Loeb, LLP.
10100 Santa Monica Boulevard
Suite 2200
Los Angeles, California 90067
If to the Sellers:
AccessTel Inc.
115 River Road
Building #12, Suite 1205
Edgewater, New Jersey 07020
16
<PAGE>
11.5 ENTIRE AGREEMENT. This Agreement, the Disclosure Schedules and any
instruments and agreements to be executed pursuant to this Agreement, sets
forth the entire understanding of the parties hereto with respect to its
subject matter, merges and supersedes all prior and contemporaneous
understandings with respect to its subject matter and may not be waived or
modified, in whole or in part, except by a writing signed by each of the
parties hereto. No waiver of any provision of this Agreement in any
instance shall be deemed to be a waiver of the same or any other provision
in any other instance. Failure of any party to enforce any provision of
this Agreement shall not be construed as a waiver of its rights under such
provision.
11.6.SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon,
enforceable against and inure to the benefit of, the parties hereto and
their respective heirs, administrators, executors, personal
representatives, successors and assigns, and nothing herein is intended to
confer any right, remedy or benefit upon any other person. This Agreement
may not be assigned by any party hereto except with the prior written
consent of the other parties, which consent shall not be unreasonably
withheld.
11.7.GOVERNING LAW. This Agreement shall in all respects be governed by
and construed in accordance with the laws of the State of California are
applicable to agreements made and fully to be performed in such state,
without giving effect to conflicts of law principles.
11.8.COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.9.CONSTRUCTION. Headings contained in this Agreement are for
convenience only and shall not be used in the interpretation of this
Agreement. References herein to Articles, Sections and Exhibits are to the
articles, sections and exhibits, respectively, of this Agreement. The
Disclosure Schedules are hereby incorporated herein by reference and made a
part of this Agreement. As used herein, the singular includes the plural,
and the masculine, feminine and neuter gender each includes the others
where the context so indicates.
11.10.SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, this
Agreement shall be interpreted and enforceable as if such provision were
severed or limited, but only to the extent necessary to render such
provision and this Agreement enforceable.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
SHOPPS.COM, INC.
By:/S/ Gerard Conca
---------------------------------------
Gerard Conca
President and Chief Executive Officer
ACCESSTEL, INC.
By:/S/ Lawrence Liang
---------------------------------------
Name: Lawrence Liang
Title: President and CEO
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first set forth above.
Seller:
ROCKWELL PROPERTIES LTD.
By: /S/ PETER OW
-------------------------
Name: Peter Ow
Title: CEO
- 18 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ JOHN P. FALKOWSKI
-------------------------
John P. Falkowski
- 19 -
20
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ MARTIN CHRISTEN
-------------------------
Martin Christen
- 21 -
<PAGE>
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ VINCENT S. ALBANESE
-------------------------
Vincent S. Albanese
- 22 -
<PAGE>
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ BRUCE A. PERLMUTTER
-------------------------
Bruce A. Perlmutter
- 23 -
<PAGE>
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ STEVEN GREENBURG
-------------------------
Steven Greenburg
- 24 -
<PAGE>
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ DON ABRAMSON
-------------------------
Don Abramson
/S/ LISA ABRAMSON
-------------------------
Lisa Abramson
- 25 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ BARBARA BOCKLER
-------------------------
Barbara Bockler
- 26 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
TELECOM MARKETING
By: /S/ LAWRENCE C. LIANG
-------------------------
Name: Lawrence C. Liang
Title:President
- 27 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
IMC ADVISORS
By: /S/ STUART BOCKLER
-------------------------
Name: Stuart Bockler
Title:
- 28 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ TERRY CHOW
-------------------------
Terry Chow
- 29 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ STAN TAYLOR
-------------------------
Stan Taylor
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ STEVE AUSTIN
-------------------------
Steve Austin
- 30 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ IGNATIUS J. SEMINARA
-------------------------
Ignatius J. Seminara
/S/ VITA SEMINARA
-------------------------
Vita Seminara
- 31 -
<PAGE>
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ RICHARD G. KRANTS
-------------------------
Richard G. Krants
/S/ LINDA KRANTS
-------------------------
Linda Krants
- 32
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ GLENN MYLES
-------------------------
Glenn Myles
- 33
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ JACK BOCKLER
-------------------------
Jack Bockler
/S/ EVELYN BOCKLER
-------------------------
Evelyn Bockler
- 34
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ STEPHANIE HALAMAR
-------------------------
Stephanie Halamar
/S/ MICHAEL HALAMAR
-------------------------
Michael Halamar
- 35-
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ DR. MARTIN BOCKLER
-------------------------
Dr. Martin Bockler
/S/ DR. ELSIE BOCKLER
-------------------------
Dr. Elsie Bockler
- 36 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ JAY AUSTIN
-------------------------
Jay Austin
- 37 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ WEN CHAUNG KO
-------------------------
Wen Chaung Ko
- 38 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
GOLDEN DRAGON TRUST
By: /S/ LAWRENCE C. LIANG
-------------------------
Name: Lawrence C. Liang
Title: Trustee Trustor
- 39 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ STUART BOCKLER
-------------------------
Stuart Bockler
- 40 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
BLIZZARD TRUST
By: /S/ STUART BOCKLER
-------------------------
Name: Stuart Bockler
Title: Trustee
- 41 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ DR. WILLIAM C. LEE
-------------------------
Dr. William C. Lee
- 42 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ JOHN L. MILLING
-------------------------
John L. Milling
- 43 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ ORAN CHANG
-------------------------
Oran Chang
- 44 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ YAXIAN (ARTHUR) ZHENG
-------------------------
Yaxian (Arthur) Zheng
- 45 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ SHARON CHEN
-------------------------
Sharon Chen
- 46 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
TRANQUIL OCEAN TRUST
By: /S/ WILLIAM C. Y. LEE
-------------------------
Name: William C. Y. Lee
Title: Trustee
- 47 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ DR. LEE
-------------------------
Dr. Lee
- 48 -
<TABLE>
<CAPTION>
<S> <C> <C>
. 1
01/02/2001
</TABLE>
- 49 -
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Seller:
/S/ PAUL K. CHANG
-------------------------
Paul K. Chang
- 50 -
<PAGE>
SCHEDULE I
AccessTel Shareholders
Total Shares to be issued at Closing 22,418,980 (36,100,540 less 13,681,560
reserved for issuance under the stock option plan)
<TABLE>
<CAPTION>
NAME SHARES
<S> <C>
AccessTel EOP Dr. Lee Non Vested 3,000,000
AccessTel EOP Reserve 4,042,300
Barbara Bockler 40,000
Blizzard Trust 2,000,000
Bruce A. Perlmutter 54,000
Don & Lisa Abramson 20,000
Dr. Martin & Dr. Elsie Bockler 40,000
Dr. W.C. Lee 500,000
Glenn Myles 13,412
Golden Dragon Trust 2,000,000
Ignatius J. and Vita Seminara 13,416
IMC Advisors Inc. 880,000
Jack & Evelyn Bockler 40,000
Jay Ausin 100,000
Jay Austin Non Vested 600,000
John L. Milling 1,600,000
John P. Falkoski 20,000
Lawrence Liang 2,000,000
Lawrence Liang EOP Non-Vested 2,400,000
Lawrence Liang EOP Vested 800,000
Martin Christen 250,000
Milling Escrow FBO A. Nastasi 4,000
Oran Chan 800,000
Oran Chan EOP Non Vested 2,400,000
Paul K. Chang 200,000
Richard G. and Linda Krants 13,412
Rockwell Properties 1,000,000
Sharon Chen EOP Non Vested 800,000
Stan Taylor 160,000
Stephanie & Michael Halamar 40,000
Steve Austin 20,000
Steven Greenburg 50,000
Stuart Bockler 2,000,000
Stuart Bockler EOP Vested 800,000
Stuart Bockler EOP Non Vested 2,400,000
Telecom Marketing 900,000
Terry Chow 120,000
Tranquil Ocean Trust 500,000
Vincent S. Albanese 180,000
Wen Chaung Ko 100,000
Yaxian (Arthur) Zheng 800,000
Yaxian (Arthur) Zheng EOP Non Vested 2,400,000
</TABLE>
- 51 -
<PAGE>
SCHEDULE II
Shares to be Issued at Closing
<TABLE>
<CAPTION>
NAME AND ADDRESS
NUMBER OF SHARES
<S> <C>
Global Guarantee Corporation 1,574,000
15760 Ventura Boulevard
Suite 1020
Encino, California 91436
Gerard Conca
81 Lakebridge Drive 500,000
Kingspark, NY 11754 8,690
Michelle Miller
11 Spartan Place 500,000
Dix Hills, NY 11756 3,050
Jerome B. Armstrong
P.O. Box 975 25,000
Seaside, OR 97138
Clark Carter
6630 Commerce Pkwy 25,000
Woodstock, GA
Paul Corson
459 Ashbourne Rd. 500,000
Elkins Park, PA 19027
Rob Highstreet
4210 N.W. 2{nd} Ter. 100,000
Boca Raton, FL 33431
James Taraborrelli
1002 Lamb Road 25,000
Secane, PA 19018
Robert Vanhoose
300,000
Peter W. Doerken
18835 Olympic Blvd. SAC 975 200,000
Los Angeles, CA 90064
TOTAL
-----------
3,760,740
</TABLE>
- 52 -
<PAGE>
SCHEDULE 2.1
Subsidiaries
The Company has one (1) wholly owned subsidiary; CCM Computer
Accessories, Inc., a New York Corporation.
<PAGE>
SCHEDULE 2.4
Financial Statements
Provided to the Company on August 29. 2000.
- 53 -
<PAGE>
SCHEDULE 2.7
Company Agreements and Financial Obligations
COMPANY AGREEMENTS
The Company is party to the following agreements:
1. Agreement dated as of April 3, 2000 relating to the conversion of
OSCM shares to common stock of the Company
2. Asset Purchase Agreement dated as of October 26, 1999 relating to
the asset purchase of the OSCM assets.
3. Agreement dated as of May 12, 2000 relating to the Debt
Restructuring
4. Debt for Equity Proposal dated as of June 27, 2000
5. Fidelity Leasing dated as of January 2000 for Saving Digital Copier
(Lease assumed by Metro Group)
6. Granite Financial dated as of September 1999 for certain computer
equipment
7. United Capital Leasing dated as of October 1999 for NEC Telephone
(Lease assumed by Metro Group)
FINANCIAL OBLIGATIONS
The Company has financial obligations totaling $2,099,945.93. The Company
has made arrangements with certain of its creditors pursuant to which
$1,284,867.11 shall be converted into equity of the Company with the
remaining $815,078.82 to be settled at Closing.
MERCHANT ACCOUNTS
<TABLE>
<CAPTION>
American Express $31,498.93
<S> <C>
National Bank of the Redwoods $71,034.44
Summit Bank $78,180.00
Card Service International $70,602.15
Discover $18,661.44
TOTAL $269,976.96
</TABLE>
- 52 -
<PAGE>
ACCOUNTS PAYABLE
<TABLE>
<CAPTION>
Amount Owed Settled Settled Settled
100% 20% For Other
Amount
<S> <C> <C> <C> <C>
ADP 4,331.37 4,331.37
Advanta Corp. Card 2,513.56 2,513.56
Aetna 6,965.20 6,965.20
ATT Long Distance 6,592.41 6,592.41
ATT Wireless 266.23 266.23
BA Pargh 936.13 187.23
BDO Seidman 81,390.00 81,390.00
BNS 1,890.00 378.00
Budget 767.96 767.96
Candle Business 1,012.66 1,012.66
Cusip Service Bureau 136.00 136.00
Daisytek 1,351.69 1,351.69
Datacomm 5,608.65 5,608.65
Depository Trust 1,920.00 1,920.00
DMGT 2,664.00 532.80
Federal Express 2,977.06 2,977.06
First Bankcard Ctr Jerry Bu 3,979.41 3,979.41
First Bankcard Ctr Mikki Bu 3,488.35 3,488.35
Global Computer Supplies 62.40 62.40
Grafix 919.00
GTE 458.97 458.97
Hartford 9,509.00 9,509.00
InstaCheck 2,382.00 2,382.00
Keydata 1799.50 359.90
Konica 29,812.97 $22,375.80
Labor Ready 1,668.00 4,123.62 333.60
LIPA 4,123.62
Lloyd Staffing 2,094.00 418.80
Loeb & Loeb 240,000.00 240,000.00
Merrill Corp. (CCM) 3,228.82 3,228.82
Merill Corp. (Shopss) 4,256.81 4,256.81
MicroConnections 1,900.00 1,900.00
Mobil Oil 577.64 577.64
Nellon Chu, Esq. 8,000.00 8,000.00
Newsday 8,302.80 1,660.56
Piping Rock 348.66 348.66
Qwest 6,073.50 6,073.50
Radin Glass 11,000.00 11,000.00
Silver Star 621.18 621.18
Skytel 227.08 227.08
Staples 3,696.65 739.33
Tech Data 10,151.57 10,151.57
Techworks 38,798.00 7,758.60
Uline 1,502.47 300.49
Unique Sanitation 2,274.03 2,274.03
UPS 3,402.70 3,402.70
Value Business 1,777.91 355.58
Verizon (0505 076) 1,482.89 1,482.89
Verizon (1577-278) 3,149.98 3,149.98
Verizon Wireless 481.78 481.78
Wrap `N' Pack 3,358.50 3,358.50
TOTAL $454,308.37 $ $ $31,529.80
404,221.97 3,870.09
</TABLE>
PAYROLL
The Company owes each of Gerard Conca and Michelle Miller three (3)
months salary ($42,000){1*} for services rendered to the Company in May,
June and July of 2000.
LOANS
<TABLE>
<CAPTION>
NAME TOTAL AMOUNT PAYABLE IN CASH TOTAL
AMOUNT NUMBER
OUTSTANDING OF
SHARES{2**}
<S> <C> <C> <C>
Gerard $34,761 $17,380 8,690
Conca
Michelle $12,200 $6,100 3,050
Miller
Margaret $40,000 $40,000 -
Stettner
TOTAL $86,961 $63,480 11,740
</TABLE>
> The Company has entered into an agreement with each of the
following creditors to convert amounts set forth below into Preferred
Stock of the Company. The conversion will take place after the Closing
pursuant to the terms and conditions set forth in a letter agreement,
dated July 27, 2000, by and between the Company and each of the
creditors set forth below.
**FOOTNOTES**
{1*} $84,000/12 = $7,000 x 3 = $21,000 x 2 = $42,000
{2**} Mr. Conca and Ms. Miller have each agreed to accept half of the
amount owed to them in common shares of the Company at $2.00 per share.
- 53 -
<PAGE>
<TABLE>
<CAPTION>
NAME AMOUNT OWED
<S> <C>
American Digi
$48,265.00
Bek-Tronics
$170,651.00
Continental
$195,558.90
Derek
$73,030.00
Int'l Logistics
$7,718.44
Panalpina
$49,210.29
Phase II Media
$121,000.00
Winn Labs
$161,873.00
Nexus (NSI Media)
$65,050.00
TOTAL
$891,267.00
</TABLE>
The Company has the following obligations represented by demand
notes payable Global Guarantee Corporation. Global Guarantee has agreed
to accept common shares as payment for the demand notes. The conversion
price is $.25 per share. Total number of shares issuable to Global
Guarantee at closing: 1,574,400.
<TABLE>
<CAPTION>
April 11, 2000 $56,600
<S> <C>
March 1, 2000 $25,000
February 28, 2000 $22,000
February 14, 2000 $50,000
February 14, 2000 $50,000
February 10, 2000 $150,000
November 1, 1999 $35,000
June 23, 2000 5,000
--------
TOTAL $393,600
</TABLE>
- 54 -
<PAGE>
SCHEDULE 2.8
Personal Property
None.
- 55 -
<PAGE>
SCHEDULE 2.9
Real Property
None.
- 56 -
<PAGE>
SCHEDULE 2.12
Litigation
The Company and/or its wholly owned subsidiary CCM Computer
Accessories, Inc. have been named as defendants in the following
pending/threatened litigation matters:
Demand Letter dated August 28, 2000
Plaintiff: Cardservice International
Estimated Exposure: 70,602.15
Filed: July 14, 2000
Court: District Court of the County of Nasau First
District
Plaintiff: Data Comm For Business, Inc.
Index No. 11987/2000
Estimated Exposure: $5,000
Filed: June 19, 2000
Court: Supreme Court of the State of New York
Plaintiff: LKG&S, Inc.
Index No. 00-14816
Estimated Exposure: $121,000
Filed: December 1999
Court: U.S. District Court Eastern District of New
York
Plaintiff: Integrated Technology & Development, Inc.
and Israel Letzter.
Estimated Exposure: None.
Summary: Integrated Technology & Development, Inc. and
Mr. Israel Letzter filed a claim in the U.S. District
Court Eastern District of New York (the "Court"),
alleging breach of fiduciary duty, fraudulent
securities filings and securities fraud in connection
with the sale by OSCM of CCM to AMCI International.
In an opinion filed on May 24, 2000 the Court
characterized the plaintiffs' claims generally as
securities fraud under section 10(b) of the Securities
Exchange Act of 1934 and discussed them collectively
when it dismissed all claims of securities and fraud
for failure to allege all elements of the crime. As
noted above, this action was brought in federal court.
Jurisdiction of the Court was based on the alleged
federal question. Since the dismissed claim of
securities fraud was the lynchpin for federal question
jurisdiction the complaint should have been dismissed,
but for plaintiffs' right to amend the complaint as a
matter of right pursuant to the Federal Rules of Civil
Procedure. After receipt of the Judge's Order, the
Company served an answer which foreclosed the
plaintiffs' right to amend the complaint as of right
and the plaintiffs have never filed a motion for leave
to amend the complaint. While the case has not yet
been formerly dismissed, the Plaintiffs have instructed
their counsel to drop the matter.
- 57 -
<PAGE>
SCHEDULE 2.16
Affiliate Transactions
None.
- 58 -
<PAGE>
Schedule 2.20
Permits and Licenses
None.
