SHARE PURCHASE AGREEMENT
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THIS SHARE PURCHASE AGREEMENT (the "Agreement") is effective as of July 1,
2000, is by and among ZiaSun Technologies, Inc., a Nevada corporation,
hereinafter referred to as "ZiaSun", and Vulcan Consultants Limited, a
corporation organized and existing under the laws of the British Virgin Islands,
hereinafter referred to as "Purchaser." This Agreement shall become effective
only when executed by all parties hereto.
RECITALS
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A. Whereas, ZiaSun is the owner and holder of one (1) Share of common stock
of Momentum Internet Incorporated, a corporation organized and existing under
the laws of the British Virgin Islands, hereinafter referred to as "Momentum."
B. Whereas, ZiaSun acquired Momentum on October 5, 1999, in a
stock-for-stock exchange with Purchaser, wherein Purchaser received 565,000
pre-split restricted shares of ZiaSun and ZiaSun received all issued and
outstanding shares of Momentum, consisting of one (1) share of common stock of
Momentum, whereupon Momentum became a wholly owned subsidiary of ZiaSun.
C. Whereas, Ziasun desires to sell to Purchaser and Purchaser desires to
purchase from ZiaSun all of the issued and outstanding shares of Momentum
consisting of one (1) share of common stock, in consideration of seven hundred
twenty-five thousand (725,000) restricted shares of Common Stock of ZiaSun owned
by Purchaser.
D. Whereas, Swiftrade, which is a subsidiary of Momentum has borrowed the
sum of $500,000 from Momentum Asia, Inc., a subsidiary of ZiaSun, As a condition
to the Closing of the sale of Momentum to Vulcan, Swiftrade shall repay this
loan in full as set forth in paragraphs 6.3.3 through 6.3.7, and 8.1.4, below.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing and of the mutual
warranties, representations, agreements and undertakings hereinafter set forth,
the parties do hereby agree as follows:
ARTICLE 1.
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CERTAIN DEFINITIONS.
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1.1 For the purpose of this Agreement, the terms defined in this Article
1., shall have the meanings set out below. All capitalized terms not defined in
this Article 1., shall have the meanings ascribed to them in other parts of this
Agreement.
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1.2 "ZiaSun" shall mean ZiaSun Technologies, Inc. a Nevada corporation.
1.3 "Momentum" shall mean Momentum Internet Incorporated, a corporation
organized and existing under the laws of British Virgin Islands, a wholly owned
subsidiary of ZiaSun.
1.4 "Vulcan" shall mean Vulcan Consultants Limited, a British Virgin
Islands corporation.
1.5 "Closing" shall mean the consummation of the transactions contemplated
hereby on the Closing Date.
1.6 "Closing Date" shall mean that date on or before August 1, 2000, or
such other date as to which the parties may agree.
1.7 "Common Stock" shall mean the Common stock, no par value, of ZiaSun.
1.8 "MII Share" shall mean one (1) share of common stock of Momentum to be
sold to and acquired by Purchaser from the ZiaSun hereunder.
1.9 "Purchase Price" shall mean seven hundred twenty-five thousand
(725,000) restricted shares of common stock of ZiaSun.
ARTICLE 2.
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PURCHASE AND SALE.
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2.1 ZiaSun agrees to sell to Purchaser, and Purchaser agrees to buy from
ZiaSun, all issued and outstanding common stock of Momentum, for the purchase
price and upon the terms, provisions and conditions hereinafter set forth.
ARTICLE 3.
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PURCHASE PRICE AND CONSIDERATION.
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3.1 Purchase Price and Consideration. The purchase price and consideration
for all issued and outstanding common stock of Momentum shall be seven hundred
twenty-five thousand (725,000) restricted shares of Common Stock of ZiaSun, free
of any liens, pledges or encumbrances of any kind.
ARTICLE 4.
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REPRESENTATIONS AND WARRANTIES BY ZIASUN.
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4.1 As a material inducement to Purchaser to enter into this Agreement,
ZiaSun represents and warrants to Purchaser that as of the date hereof:
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4.1.1 Organization and Good Standing. Momentum is duly organized and
existing in good standing under the laws of the British Virgin Islands.
Momentum is not presently engaging in business in any other jurisdiction
and is qualified as a foreign corporation nor authorized to do business in
other jurisdictions. Momentum has the corporate power to own its properties
and to carry on its business as now conducted and as proposed to be
conducted;
4.1.2 Authorization. The execution, delivery and performance by ZiaSun
of this Agreement and the execution, delivery and performance by ZiaSun
and/or Momentum of each related agreement to which ZiaSun and/or Momentum
is a party (a) are within ZiaSun's or Momentum's power and authority, (b)
have been duly authorized by all necessary corporate proceedings, as
applicable, and (c) do not conflict with or result in any breach of any
provision or of the creation of any lien or encumbrance upon any of the
property of Momentum or require any consent or approval pursuant to the
Articles of Incorporation or bylaws of Momentum or any law, regulation,
order, judgment, writ, injunction, license, permit, agreement or instrument
applicable to ZiaSun or Momentum;
4.1.3 Enforceability. The execution and delivery of this Agreement by
ZiaSun and the execution and delivery by ZiaSun and Momentum of each
related agreement to which it is a party, will result in legally binding
obligations of ZiaSun, enforceable against each of ZiaSun and Momentum in
accordance with the respective terms and provisions hereof and thereof,
except to the extent that (a) such enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditor's rights, and (b) the
availability of the remedy of specific performance or injunctive or other
equitable relief will be subject to the discretion of the court before
which any proceeding therefore may be brought;
4.1.4 Governmental Approvals. Except as set forth in Exhibit 4.1.4
hereto, the execution, delivery and performance by ZiaSun of this Agreement
and the execution and delivery by ZiaSun and Momentum of each related
agreement to which it is a party, do not require the approval or consent
of, or any filing with, any governmental authority or agency.
4.2 Capitalization.
4.2.1 Capital Stock. The authorized capital stock of Momentum consists
solely of 50,000 shares of Common Stock, U.S.$1.00 Par Value per share (the
"MII Common Stock"), of which one (1) share is issued and outstanding,
fully paid and non-assessable.
4.2.2 Options, Etc. There are no outstanding rights (either preemptive
or other) or options to subscribe for or purchase any shares of Momentum,
or any securities convertible into exchangeable for its capital stock.
4.3. Subsidiaries and Websites of Momentum. Exhibit 4.3 hereto sets for the
subsidiaries and websites owned by Momentum, which, as a result of the sale of
Momentum to Vulcan will remain part of Momentum. Except as set forth on Exhibit
4.3, Momentum does not have any subsidiaries and does not own or hold of record
and/or beneficially any shares of any class in the capital of any other
corporation. Further, except as set forth on Exhibit 4.3, Momentum does not own
any legal and/or beneficial interests in any partnerships, business trusts or
joint ventures or in any other unincorporated trade or business enterprises.
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4.4. Subsidiaries and Websites Which ARE NOT part of Momentum. Exhibit 4.4
hereto sets for the subsidiaries and websites which are not owned by, or a part
of Momentum, and which remain the property of ZiaSun of its other subsidiaries
4.5 Reports and Financial Statements. Purchaser has heretofore been
furnished with complete and correct copies of the audited balance sheet,
statements of income and cash flows of Momentum, as of December 31, 1999, a copy
of which is attached hereto as Exhibit 4.5. Purchaser accepts said Momentum
Financial Statements "As-Is" and accepts any adjustments that may result
thereto.
4.6 Material Adverse Change. To the best of ZiaSun's knowledge, except as
set forth on Exhibit 4.6, hereto, there has been no material adverse change in
the business, properties, financial condition or prospects of Momentum since the
date of the Momentum Financial Statements.
4.7 Solvency. Prior to, upon and immediately after the consummation of the
acquisition and the transactions contemplated hereby and by the related
agreements, Momentum is solvent, has tangible and intangible assets having a
fair value in excess of the amount required to pay its probable liabilities on
its existing debts as they become absolute and matured and has access to
adequate capital for the conduct of its business and the ability to pay its
debts from time to time incurred in connection therewith as such debts mature.
4.8 Title to Assets; Leases. Except as disclosed herein or set forth on
Exhibit 4.8, attached hereto, Momentum owns all of its assets shown on the
Momentum Financial Statements free and clear of all liens and encumbrances and
enjoys peaceful and undisturbed possession of all leased real property on which
the facilities are currently situated, and all such leases are valid and in full
force and effect.
4.9 Defaults. Momentum is not in default under any provision of its
Articles of Incorporation or by-laws or under any provision of any franchise,
contract, agreement, lease or other instrument to which it is a party or by
which it or its property is bound or in violation of any law, judgment, decree
or governmental order, rule or regulation.
4.10 Indebtedness and Liens. Except as set forth on Exhibit 4.10, hereto,
Momentum does not have any indebtedness or liens upon any of its properties.
4.11 Representations and Warranties. All representations and warranties
made by ZiaSun or Momentum in any of the related agreements or in the
certificates delivered in connection therewith are true and correct as of the
date hereof with the same force and effect as though made on and as of the date
hereof, and such representations and warranties are hereby confirmed to
Purchaser and made representations and warranties of Momentum hereunder as fully
as if set forth herein.
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4.12 Related Agreements. Purchaser has heretofore or simultaneously
herewith been furnished with complete and correct copies of all the related
agreements and all other agreements, instruments and documents entered into in
connection therewith. This Agreement and the related agreements are the only
material agreements relating to the stock purchase and the transactions
contemplated hereby to which Momentum is a party. Momentum is not in default on
any of its obligations under this Agreement or any related agreement.
4.13 Licenses, Etc. Exhibit 4.13, hereto sets forth a list of all
franchises, patents, patent applications, patent licenses, patent rights,
trademarks, trademark rights, trade names, trade name rights, copyrights,
licenses, permits, authorizations and other rights as are necessary for the
conduct of the business of Momentum as currently conducted or currently proposed
to be conducted. All of the foregoing are in full force and effect, and Momentum
is in compliance with the foregoing without any known conflict with the valid
rights of others which could affect or impair in a material manner the property,
business or financial condition of Momentum.
4.14 Litigation. Except as set forth and described on Exhibit 4.14, there
is no pending or threatened litigation or other proceeding before any court,
board or other governmental or administrative agency or arbitrator, to which
Momentum is or would be a party. No such pending or threatened litigation or
other proceeding, individually or in the aggregate, is reasonably likely to
result in any final judgment or liability which, after giving effect to any
applicable insurance, could result in a material adverse change in the business,
assets, financial condition or prospects of Momentum No judgment, decree or
order of any court, board or other governmental or administrative agency or
arbitrator has been issued against or binds Momentum or its assets.
4.15 Tax Returns. Except as set forth on Exhibit 4.15, hereto, Momentum has
filed all tax returns and reports which are required to be filed with any
foreign, federal, state or local governmental authority or agency and has paid,
or made adequate provision for the payment of, all assessments received and all
taxes which have or may become due under applicable foreign, federal, state or
local governmental law or regulations with respect to the periods in respect of
which such returns and reports were filed. Except as set forth on Exhibit 4.14,
hereto, Momentum knows of no additional assessments since the date of such
returns and reports, and there will be no additional assessments with respect to
the periods for which such returns and reports were filed for which adequate
reserves appearing on the balance sheets referred to in paragraph 4.4, have not
been established. Momentum has made adequate provision for all current taxes.
4.16 Governmental Regulations. Momentum is not a "holding company", or a
"subsidiary company" of a "holding company" or an "affiliate" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935; Momentum is not a "registered investment company", or an "affiliated
person" or a principal underwriter of a "registered investment Company", as such
terms are defined in the Investment Company Act of 1940, as amended.
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4.17 Disclosure. No representation, warranty or statement made by ZiaSun or
Momentum in this Agreement, any related agreement or any agreement, certificate,
statement or document furnished by or on behalf of ZiaSun or Momentum in
connection herewith or therewith contains any untrue statement of material fact
or omits to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances in which they were
made, not misleading.
4.18 Employees. Except as shown on Exhibit 4.18, to the best of ZiaSun's
knowledge, Momentum does not have any liability or obligation of any kind
whatsoever to any of its former employees. There will be no unpaid bonuses owing
to any employee of Momentum at the Closing Date. Momentum is not a party or
subject to collective bargaining agreements with respect to any of its
employees. To the best knowledge of ZiaSun, Momentum will not be liable to any
of its employees whose employment is terminated by ZiaSun at or before the
Closing for a claim of wrongful termination or severance pay, except as
described in Exhibit 4.18; provided, however, no representation is made that any
such employee will not file a claim or litigation in respect thereto, or that
Momentum will not incur costs or expenses as a result thereof.
4.19 Insurance. Exhibit 4.19 contains a complete list and summary
description of all insurance policies, briefly identifying the nature, period of
coverage, insurer and annual premium, in which Momentum is named as an insured
or beneficiary or as a loss payable payee or for which Momentum has paid all or
part of the premium in force on the date hereof. Such policies will be
maintained in full force and effect by Momentum in their present amounts up
through and including the Closing Date. Exhibit 4.19 specifies any notice or
other information regarding any claims or possible claims under the insurance
policies shown thereon. Momentum is not in material default under any of such
policies and has not received any communication or any nature which would
indicate any problem as to obtaining coverage at substantially similar rates
(other than normal premium increases) or which threatens cancellation of any of
such policies.
4.20 Officers and Directors. Exhibit 4.20 contains the names and titles of
all officers and Directors of Momentum.
4.21 No Dividends or Distributions. No officer, director, principal
shareholder, agent, or employee of Momentum or any predecessor corporation, or
any affiliate of any such person, owns or controls any assets or properties
which are used in its business, nor are there any agreements in effect between
Momentum and said persons other than as set forth in on Exhibit 4.20.
ARTICLE 5.
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REPRESENTATIONS AND WARRANTIES BY PURCHASER
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5.1 As a material inducement to ZiaSun to enter into this Agreement,
Purchaser represents and warrants to ZiaSun that as of the date hereof:
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5.1.1 Authorization. The execution, delivery and performance by the
Purchaser of this Agreement and each related agreement to which it is a
party, (a) are within the Purchaser's power and authority, (b) have been
duly authorized by all necessary proceedings, and (c) do not conflict with
or result in any breach of any provision or of the creation of any lien
upon any of the property of the Purchaser or require any consent or
approval that has not been obtained or will not be obtained before Closing,
and do not violate any law, regulation, order, judgment, writ, injunction,
license, permit, agreement or instrument.
5.1.2 Enforceability. The execution and delivery of this Agreement by
the Purchaser and each related agreement to which it is a party, will
result in legally binding obligations of the Purchaser enforceable against
it in accordance with the respective terms and provisions hereof and
thereof, except to the extent that (a) such enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating
to or affecting generally the enforcement of creditor's rights, (b) the
availability of the remedy of specific performance or injunctive or other
equitable relief will be subject to the discretion of the court before
which any proceeding therefore may be brought.
5.1.3 Governmental Approvals. Except as set forth on Exhibit 5.1.3,
hereof, the execution, delivery and performance by the Purchaser of this
Agreement do not require the approval or consent of, or any filing with,
any governmental authority or agency.
5.1.4 Business. Prior to and at the Closing Date, the Purchaser will
not have conducted any business or incurred any liabilities that shall have
a material adverse impact on Purchaser's ability to fulfill its obligations
hereunder.
5.1.5 Solvency. Prior to, upon and immediately after the consummation
of the Acquisition and the transactions contemplated hereby and by the
related agreements, Purchaser is solvent, has tangible and intangible
assets having a fair value in excess of the amount required to pay his
probable liabilities on his existing debts as they become absolute and
matured and has access to adequate capital for the conduct of his business
and the ability to pay his debts from time to time incurred in connection
therewith as such debts mature.
5.1.6 Title to Assets; Leases. Except as set forth on Exhibit 5.1.6
hereof, upon completion of this Agreement, Purchaser enjoys peaceful and
undisturbed possession to all of Purchaser's assets.
5.1.7 Defaults. The Purchaser is not in default under any provision
any franchise, contract, agreement, lease or other instrument to which
Purchaser is a party or by which Purchaser or Purchaser's property is bound
or in violation of any law, judgment, decree or governmental order, rule or
regulation.
5.1.8 Representations and Warranties. All representations and
warranties made by the Purchaser in any of the related agreements are true
and correct as of the date hereof with the same force and effect as though
made on and as of the date hereof, and such representations and warranties
are hereby confirmed to you and made representations and warranties of the
Purchaser hereunder as fully as if set forth herein.
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5.1.9 Related Agreements. This Agreement and the related agreements
are the only material agreements relating to the stock purchase and the
transactions contemplated hereby to which the Purchaser is a party. The
Purchaser is not in default on any of its obligations under this Agreement
or any related agreements.
5.1.20 Litigation. There is no pending or threatened litigation or
other proceeding before any court, board or other governmental or
administrative agency or arbitrator, to which Purchaser is a party, which
is reasonably likely to result in any final judgment or liability which
could result in a material adverse change in the business, assets,
financial condition or prospects of the Purchaser.
5.1.21 Tax Returns. Purchaser has filed all tax returns and reports
which are required to be filed with any foreign, federal, state or local
governmental authority or agency and has paid, or made adequate provision
for the payment of, all assessments received and all taxes which have or
may become due under applicable foreign, federal, state or local
governmental law or regulations with respect to the periods in respect of
which such returns and reports were filed. The Purchaser knows of no
additional assessments since the date of such returns and reports, and
there will be no additional assessments with respect to the periods for
which such returns and reports were filed for which Purchaser did not have
adequate reserves and Purchaser has made adequate provision for all current
taxes.
5.1.22 Disclosure. No representation, warranty or statement made by
Purchaser in this Agreement, any related agreement or any agreement,
certificate, statement or document furnished by or on behalf of Purchaser
in connection herewith contains any untrue statement of material fact or
omits to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances in which they
were made, not misleading.
5.1.23 Access to Financial Reports. ZiaSun shall have full and
complete access to any and all financial information and records, of
Momentum up to June 30, 2000, as required by ZiaSun, in order for ZiaSun
and its independent auditors to prepare the requisite consolidated
financial statements for the year ending December 31, 2000.
5.1.24 Execution of Registrant Name Change Agreement for ZiaSun.com
and Zsun.com Website. Momentum is presently the website master and
Registrant of the Websites "Ziasun.com" and "Zsun.com." ZiaSun and its
board of directors have determined that it is in the best interest of
ZiaSun to host the website in the United States and as such Momentum will
no longer function as the website master, host or registrant for ZiaSun.com
or Zsun.com. Accordingly, as a condition to the Closing of the sale of
Momentum to Vulcan, Momentum agrees to concurrently with the execution of
this Agreement execute that certain Registrant Name Change Agreement
attached hereto as Exhibit 5.1.24(a) and 5.1.24(b) thereby changing the
registered owner of the ZiaSun.com and Zsun.com website to ZiaSun.
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ARTICLE 6.
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CLOSING.
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6.1 The closing of this transaction shall be held at the offices of ZiaSun
Technologies, Inc., located at 462 Stevens Avenue, Suite 106, Solana Beach,
California 92075, on or before August 31, 2000, or at such other place and time
as is mutually agreeable to the parties, or by FAX and Federal Express.
6.2 ZiaSun's Deliveries at Closing. On the Closing date or such time period
as set forth below, ZiaSun shall deliver the following items:
6.2.1 a certificate representing the one (1) share of Common Stock of
Momentum, issued in the name of Purchaser;
6.2.2 all minute books and stock record books of Momentum;
6.2.3 certified resolutions of the Board of Directors of Momentum
authorizing the transactions contemplated hereby; and
6.2.4 all other instruments and agreements not herein specifically
provided for but which are reasonably necessary or desirable to effectuate
the closing hereunder.
6.3 Purchaser's Deliveries. On the Closing Date within such time period as
set forth below, Purchaser shall deliver, or cause to be delivered, to ZiaSun,
the following:
6.3.1 A certificate representing 725,000 restricted shares of the
Common Stock of ZiaSun Technologies, Inc., registered in the name of
ZiaSun, free of any liens, pledges or encumbrances of any kind.
6.3.2. The executed Registrant Name Change Agreement attached hereto
as Exhibit 5.1.24(a), thereby changing the registered owner of the
ZiaSun.com website to ZiaSun.
6.3.3. The executed Registrant Name Change Agreement attached hereto
as Exhibit 5.1.24(b), thereby changing the registered owner of the Zsun.com
website to ZiaSun.
6.3.4 The sum of US$200,000 in cash representing the partial repayment
of the loan by Momentum Asia, Inc., to Swiftrade, Inc. Said US$200,000
shall delivered via wire to the Ziasun directly.
6.3.4 The executed Amendment to Loan Agreement between Momentum Asia,
Inc., and Swiftrade, Inc., wherein the payment terms of said loan has been
accelerated, wherein $200,000 shall be due and payable on July 31, 2000 and
the balance of $300,000 shall be due and payable on or before September 30,
2000.
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6.3.5 An executed Pledge Agreement in the form and content
satisfactory to ZiaSun, wherein Swiftrade, Inc., has pledged 10,000 shares
of the Series A Non Voting Preferred Stock, $0.001 par value, in Mid
American Capital Corp., owned by Swiftrade Inc., to ZiaSun, as the parent
company of Momentum Asia, Inc, as security and collateral for he repayment
by Swiftrade Inc., of the balance of $300,000 due and owing pursuant to the
aforementioned Amendment to Loan Agreement between Momentum Asia, Inc., and
Swiftrade, Inc.
6.3.6 The original stock certificate no. 002 representing the 10,000
shares of Series A Non Voting Preferred Stock of Mid American Capital
Corp., along with a duly executed Irrevocable Stock Power in favor of
ZiaSun Technologies, Inc.
6.3.7 A duly executed Resolution of the Board of Directors of
Swiftrade, Inc. authorizing the execution and delivery of the
aforementioned, pledge agreement, preferred shares and stock power to
ZiaSun.
6.3.8 all other instruments not herein specifically provided for but
which are reasonably necessary or desirable to effectuate the closing
hereunder.
ARTICLE 7.
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CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
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7.1 The obligations of Purchaser hereunder are subject to the following
conditions, any of which may be waived in writing by Purchaser:
7.1.1 Representation and Warranties True at Closing. The
representations and warranties of the ZiaSun contained in this Agreement
shall have been true and correct when made and shall be true and correct on
the Closing Date with the same effect as if made on such date, except to
the extent that such representations and warranties are rendered inaccurate
by reason of transactions contemplated hereby.
7.1.2 Performance of Agreements and Conditions. ZiaSun shall have
performed and complied with all agreements and conditions required by this
Agreement to be performed and complied with by Momentum and ZiaSun prior to
or at the Closing Date.
7.1.3 Certificates. ZiaSun shall have delivered to Purchaser
certificates representing the one (1) shares of Momentum common stock
registered in the name of Purchaser.
7.1.4 No Injunction. On the Closing Date there shall not be in effect
any injunction, writ, preliminary restraining order of any nature issued by
a court or other governmental body or agency directing that the
transactions provided for herein not be consummated as herein provided, nor
shall there be any litigation or proceeding pending or threatened in
respect of the transactions contemplated hereby.
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7.1.5 Instruments of Transfer and Other Documents. ZiaSun shall have
delivered to Purchaser instruments of transfer which vest in Purchaser good
and marketable title to the Shares as required herein and shall have
delivered all other instruments, certificates and other documents required
to be delivered hereunder.
7.1.6 Necessary Approvals. The execution and delivery of this
Agreement and the terms thereof and all corporate and other action
necessary or required in order to effect the fulfillment of the obligations
of Momentum and the ZiaSun hereunder at or prior to the Closing Date shall
have been approved by all necessary governmental bodies or agencies and all
consents of any person contemplated by this Agreement to be obtained prior
to the Closing shall have been obtained.
7.1.7 Absence of Adverse Changes. There shall have not been any
material adverse change in the financial condition, results of operations,
business or prospects of Momentum from December 31, 1999, to the Closing
Date.
7.2 ZiaSun represents and warrants that they have not caused, and he
covenants and agrees that he shall not cause, any event that would prevent the
satisfaction of all of the conditions set forth in Article 8 of this Agreement.
ZiaSun covenants and agrees to take all action reasonably required on his part
to satisfy such conditions.
ARTICLE 8.
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CONDITIONS PRECEDENT TO OBLIGATIONS OF ZIASUN
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8.1 The obligations of the ZiaSun hereunder are subject to the following
conditions, any of which may be waived in writing by the ZiaSun:
8.1.1 This Agreement; Related Agreements. This Agreement and any
related agreements shall have been executed and delivered, shall be in full
force and effect and no term or condition hereof or thereof shall have been
amended, modified or waived except with ZiaSun's prior written consent. All
covenants, agreements and conditions contained herein or in any related
agreements which are to be performed or complied with on or prior to the
Closing Date, other than by ZiaSun or Momentum, shall have been performed
or complied with (or waived with ZiaSun's prior written consent) in all
material respects.
8.1.2 Related Conditions Satisfied. All conditions to purchase as set
forth in Article 5, have been satisfied as of the Closing Date, except to
the extent to be fulfilled by Momentum.
8.1.3 Certificates. Purchaser shall have delivered to ZiaSun
certificates representing 725,000 restricted shares of the Common Stock of
ZiaSun Technologies, Inc., registered in the name of ZiaSun, free of any
liens, pledges or encumbrances of any kind.
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8.1.4 Repayment and Security for Repayment of Swiftrade Loan.
Purchaser, Momentum, or its subsidiary shall have delivered via wire, to
ZiaSun, the sum of US$200,000 representing the partial repayment of the
loan to Swiftrade by Momentum Asia, and all other documents set forth in
paragraphs 6.3.3 through 6.3.8 to secure repayment of the loan to Swiftrade
by Momentum Asia, Inc.
8.1.5 Representations and Warranties True at Closing. The
representations and warranties of Purchaser contained in this Agreement
shall have been true and correct when made and shall be true and correct on
the Closing Date with the same effect as if made on such date, and
Purchaser shall have delivered a Certificate to such effect to ZiaSun.
8.1.6 Performance of Agreement and Conditions. Purchaser shall have
performed and complied with all agreements and conditions required by this
Agreement to be performed or complied with by Purchaser prior to or at the
Closing Date Purchaser shall have delivered the Purchase Price to ZiaSun at
the Closing in the form provided hereby and shall have satisfied all other
financial obligations as set forth herein.
8.1.7 No Injunction. On the Closing Date there shall not be in effect
any injunction, writ, preliminary restraining order or any order of any
nature issued by a court or other governmental body or agency directing
that the transactions provided for herein not be consummated as herein
provided, nor shall there be any litigation or proceeding pending or
threatened with respect to the transactions contemplated hereby.
8.1.8 Necessary Approvals. The execution and delivery of this
Agreement and the Exhibits hereto and all other action necessary or proper
to effectuate the fulfillment of the obligations of Purchaser to be
performed hereunder in or prior to the Closing Date shall have been duly
authorized and approved, to the extent required by law.
(a) The execution and delivery of the documents and items set
forth herein.
(b) This Agreement has been duly executed and delivered by
Purchaser.
8.2 Purchaser. Purchaser represents and warrants that is has not caused,
and it covenants and agrees that it shall not cause, any event that would
prevent the satisfaction of all of the conditions set forth in this Agreement.
Purchaser covenants and agrees to take all action reasonably required on its
part to satisfy such conditions.
Page 12 of 19
<PAGE>
ARTICLE 9.
----------
INDEMNIFICATION AND HOLD HARMLESS
---------------------------------
9.1 Indemnification by ZiaSun The ZiaSun agrees to indemnify, defend and
hold the Purchaser, and its officers and directors, harmless against and in
respect of any and all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest, penalties
and reasonable attorney fees that it shall incur or suffer, which arise out of,
result or relate to any breach of, or failure by ZiaSun to perform any of its
material representations, warranties, covenants or agreements in this Agreement
or in any schedule, certificate, exhibit or other instrument furnished or to be
furnished by ZiaSun under this Agreement; provided however, that notice of any
such breach shall have been communicated with specificity within one (1) year of
the date hereof.
9.2 Indemnification of ZiaSun by Momentum. Momentum agrees to indemnify,
defend and hold the ZiaSun harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties and reasonable
attorney fees, that it shall incur or suffer, which arise out of, result or
relate to any act of Momentum, its officer's, or directors, agents,
representatives, and employees from any claim from Momentum's inception.
9.3 Indemnification of ZiaSun by Purchaser. Purchaser agrees to indemnify,
defend and hold the ZiaSun harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties and reasonable
attorney fees, that it shall incur or suffer, which arise out of, result or
relate to act of Momentum, its officer's, or directors, agents, representatives,
and employees from any claim from the date of the Closing and thereafter.
9.4 Notice and Opportunity to Defend. If there occurs an event which any
Party asserts is an indemnifiable event, the Party seeking indemnification shall
notify the Party obligated to provide indemnification (the "Indemnifying Party")
promptly. If such event involves (i) any claim or (ii) the commencement of any
action or proceeding by a third person, the Party seeking indemnification will
give such Indemnifying Party written notice of such claim or the commencement of
such action or proceeding. Such notice shall be a condition precedent to any
liability of the Indemnifying Party hereunder. Such Indemnifying Party shall
have a period of thirty (30) days within which to respond thereto. If such
Indemnifying Party does not respond within such thirty (30) days period, such
Indemnifying Party shall be obligated to compromise or defend, at its own
expense and by counsel chosen by the Indemnifying Party shall provide reasonably
satisfactory to the Party seeking indemnity, such matter and the Indemnifying
Party shall provide the Party seeking indemnification with such assurances as
may be reasonably required by the latter to assure that the Indemnifying Party
will assume, and be responsible for, the entire liability issue. If such
Indemnifying Party does not respond within such thirty (30) day period and
rejects responsibility for such matter in whole or in part, the Party seeking
indemnification shall be free to pursue, without prejudice to any of its rights
hereunder, such remedies as may be available to such Party under applicable law.
The Party seeking indemnification agrees to cooperate fully with the
Indemnifying Party and its counsel in the defense against any such asserted
liability. In any event, the Party seeking indemnification shall have the right
to participate at its own expense in the defense of such asserted liability. Any
compromise of such asserted liability by the Indemnifying Party shall require
the prior written consent of the Party seeking indemnification. If, however, the
Party seeking indemnification refuses its consent to a bona fide offer of
settlement which the Indemnifying Party wishes to accept, the Party seeking
indemnification may continue to pursue such matter, free of any participation by
the Indemnifying Party, at the sole expense of the Party seeking
indemnification. In such event, the obligation of the Indemnifying Party to the
Party seeking indemnification shall be equal to the lesser of (i) the amount of
the offer of settlement which the Party seeking indemnification refused to
accept plus the costs and expenses of such Party prior to the date the
Indemnifying Party notifies the Party seeking indemnification of the offer of
settlement and (ii) the actual out-of-pocket amount the Party seeking
indemnification is obligated to pay as a result of such Party's continuing to
pursue such an offer. An Indemnifying Party shall be entitled to recover from
the Party seeking indemnification any additional expenses incurred by such
Indemnifying Party as a result of the decision of the Party seeking
indemnification to pursue such matter.
Page 13 of 19
<PAGE>
9.5 The obligations under Article 9 shall survive the Closing hereunder and
Termination of this Agreement. Purchaser, ZiaSun, and Momentum shall promptly
notify the responsible party of the existence of any claim, demand or other
matter to which such indemnification obligations would apply, and shall give a
reasonable opportunity to defend the same at their own expense and with counsel
of their own selection; provided, if he that party fails to defend the same,
Purchaser, ZiaSun or Momentum, as the case may be, shall have the right to
contract and defend the same, and in any event Purchaser, ZiaSun, or Momentum
shall at all times also have the right fully to participate in the defense of,
and to compromise or settle in good faith the claim or other matter on behalf,
for the account and at the risk of the other parties. If the claim is one that
cannot by its nature be defended solely by ZiaSun, Purchaser, or Momentum, then
Purchaser, ZiaSun or Momentum shall make available all information and
assistance that Purchaser, ZiaSun, or Momentum may reasonably request.
ARTICLE 10.
-----------
ACCESS TO INFORMATION
---------------------
10.1 From the date hereof until the Closing Date, Purchaser, through its
employees, accountants, attorneys and other representatives, may make such
investigation of the financial and legal condition, business, operations and
properties of Momentum as it may deem necessary or advisable, and ZiaSun agrees
to cause Momentum to make available to such persons all records and other
information and data, including corporate records and copies of documents, as
Purchaser may reasonably request, and to have its personnel cooperate with
Purchaser's representatives. Such investigation shall be made at reasonable
hours so as not to interfere with the operations of Momentum. In the event that
the transactions contemplated hereby are not consummated, all documents obtained
by Purchaser from Momentum shall be promptly returned to them and all
information obtained by Purchaser concerning Momentum shall be kept strictly
confidential and shall not be used for competitive purposes.
Page 14 of 19
<PAGE>
ARTICLE 11.
-----------
OPERATION OF THE BUSINESS PENDING CLOSING.
------------------------------------------
11.1 Except as otherwise provided herein, between the date of this
Agreement and the Closing Date, ZiaSun and Momentum shall operate the businesses
of Momentum in such a manner as to keep intact the business organization of
Momentum keep available the services of the employees and preserve its present
relations with the suppliers and customers.
ARTICLE 12.
-----------
BROKERAGE.
----------
12.1 Each party represents and warrants to the others that no person or
persons assisted in or brought about the negotiation of this Agreement in the
capacity of broker, agent, finder or organizer on behalf of it. Each party
("First Party") agrees to indemnify and hold harmless the others from any claim
asserted against the others for a brokerage or agent's or finder's or
originator's commission or compensation in respect of the transactions
contemplated by this Agreement by any person purporting to have acted on behalf
of First Party.
ARTICLE 13.
-----------
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
-------------------------------------------------------
13.1 All representations, warranties and agreements by ZiaSun, Momentum, or
the Purchaser pursuant hereto shall survive the closing of this transaction and
shall not be affected by any investigation at any time made by or on behalf of
any party.
ARTICLE 14.
-----------
TERMINATION PRIOR TO THE CLOSING.
---------------------------------
14.1 This Agreement shall terminate and be of no further force or effect as
between the parties hereto except as to liability for breach or default of any
covenant, agreement, representation, warranty, duty or obligation occurring or
arising prior to the date of termination, upon the occurrence of any of the
following:
14.1.1 Immediately prior to Closing the Purchaser has given
notice to ZiaSun of the material breach or default by Momentum or
ZiaSun in the performance of any covenant, agreement, representation,
warranty, duty or obligation hereunder, and provided that no such
termination shall be effective if, prior to Closing, the breaching
party shall have fully and completely corrected and cured the grounds
for the termination as set forth in said notice of termination.
Page 15 of 19
<PAGE>
14.1.2 Immediately prior to Closing the ZiaSun has given notice
to Purchaser of material breach of default in the performance of any
covenant, agreement, representation, warranty, duty or obligation of
Purchaser hereunder, and provided that no such termination shall be
effective, if prior to Closing the Purchaser shall have fully and
completely corrected and cured the grounds for the termination as set
forth in said notice of termination.
14.2 Notwithstanding anything to the contrary contained herein, no party
hereto shall have the right to terminate this Agreement on account of its own
breach or because of any immaterial breach by any other party hereto or any
covenant, agreement, representation, warranty, duty or obligation hereunder.
14.3 No termination of this Agreement for any reason or in any manner shall
release, or be construed as so releasing, any party hereto from any liability or
damage to any other party hereto arising out of, in connection with or otherwise
relating to, directly to, directly or indirectly, said party's breach, default,
or failure in performance of any of his covenants, agreements, duties or
obligations arising hereunder, or any of his misrepresentations of any
representations or warranty herein contained.
ARTICLE 15.
-----------
MISCELLANEOUS
-------------
15.1 Payment of Expenses. ZiaSun, Momentum and Purchaser shall each pay
their own respective expenses incident to the preparation and carrying out of
this Agreement.
15.2 Binding Agreement. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by and
against the parties hereto and their respective successors, assigns,
transferees, heirs, representatives and estates.
15.3 Notices. Any notice or other communication required or permitted
hereunder shall be expressed in writing and sent by certified or registered
mail, return receipt requested, to their respective parties at the following
addresses, or at such other addresses as the parties shall designate by written
notice to be the other:
If to the Purchaser, addressed to:
---------------------------------
Vulcan Consultants Ltd.
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola, British Islands
Page 16 of 19
<PAGE>
If to Momentum Internet, addressed to:
-------------------------------------
Mr. Anthony L. Tobin
Momentum Internet Inc.
12A, First Pacific Bank Centre
56 Gloucester Road
Wanchai, Hong Kong
With a copy to their Counsel, addressed to:
Mr. Alan Day
Compsec Services Limited
Suite C, 16th Floor, On Hing Building
1-9 On Hing Terrace, Central, Hong Kong
If to the ZiaSun, addressed to:
------------------------------
Mr. Allen D. Hardman
President and CEO
ZiaSun Technologies, Inc.
462 Stevens Avenue
Suite 106
Solana Beach, California 92075
With a copy to counsel, addressed to:
------------------------------------
George G. Chachas, Esq.
Wenthur & Chachas
4180 La Jolla Village Drive
Suite 500
La Jolla, CA 92037
15.5 Article Headings. The Article headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15.6 Exhibits. All Exhibits referred to in this Agreement shall be attached
hereto and are hereby incorporated herein.
15.7 Counterparts. This Agreement may be executed in any one or more
counterparts, all of which taken together shall constitute one instrument.
15.8 Cooperation. Each party shall cooperate and use its best efforts to
consummate the transactions contemplated herein. Without limiting the foregoing,
each of Momentum and the ZiaSun shall use its or his good faith best efforts and
take such action as may reasonably be requested by Purchaser to help secure for
Momentum following the Closing any consents or approvals as may be required from
any governmental agency in order for Momentum to sell franchises as soon as
practicable following the Closing, and each shall cooperate with Purchaser in
its efforts to secure such consents and approvals. In addition, each party shall
cooperate and take such action and execute such other and further documents as
may be reasonably requested from time to time after the Closing Date by any
other party to carry out the terms and provisions and intend of this Agreement.
Page 17 of 19
<PAGE>
15.9 Gender. Wherever the context of this Agreement so requires or permits,
the masculine herein shall include the feminine or the neuter, the singular
shall include the plural, and the term "person" shall also include "corporation"
or other business entity.
15.20 Facsimile Signatures. It is expressly agreed that the parties may
execute this Agreement via facsimile signature and such facsimile signature
pages shall be treated as originals for all purposes.
15.21 Entire Agreement. This Agreement and the other documents delivered
concurrently herewith or pursuant hereto constitute the entire agreement among
the parties hereto, and it is understood and agreed that there are no other than
those contained herein. This Agreement may not be changed or modified except by
a writing duly executed by the parties hereto.
15.22 Governing Law; Choice of Forum. This Agreement shall be governed by
and construed in accordance with the laws of the State of California applicable
to agreements made and to be performed entirely within such State and without
regard to its choice of law principles. All parties hereto (i) consents to
submit itself to the personal jurisdiction of any federal court located in the
State of California or any California state court in the event any dispute
arises out of this Agreement or any of the transactions contemplated by this
Agreement, (ii) agrees that Venue for any such dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement shall be any
federal court located in the State of California or any California state court,
(iii) agrees that they will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (iv)
agrees that it will not bring any action relating to this Agreement or any of
the transactions contemplated by this Agreement in any court other than a
federal court sitting in the State of California or a California state court.
15.23 Legal Action Fees. Subject to the specific provisions of Article 9,
above, if any action or other proceeding, in law or in equity, is brought for
the enforcement of this Agreement or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party or parties shall be entitled to
recover its or their reasonable attorney's fees and other costs incurred in that
arbitration, action or proceeding, in addition to any other relief to which it
or may be entitled.
Page 18 of 19
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first written above.
ZIASUN TECHNOLOGIES, INC.
Dated: 16 August 2000 /s/ Allen D. Hardman
----------------------------------
By: Allen D. Hardman
Its: President and CEO
VULCAN CONSULTANTS, LTD.
Dated: August 22, 2000 /s/ Anthony L. Tobin
----------------------------------
By: Anthony L. Tobin
Title: President
MOMENTUM INTERNET INC.
Dated: August 22, 2000 /s/ Anthony L. Tobin
----------------------------------
By: Anthony L. Tobin
Its: President
Page 19 of 19
<PAGE>
EXHIBIT 4.1.4
-------------
REQUIRED GOVERNMENT APPROVALS
OF
MOMENTUM INTERNET INCORPORATED
------------------------------
None
<PAGE>
EXHIBIT 4.3
-----------
SUBSIDIARIES AND WEBSITES
OF
MOMENTUM INTERNET INCORPORATED
------------------------------
The following subsidiaries and websites are owned or a part of Momentum
Internet, Inc., and will remain such as a result of the sale of Momentum
Internet, Inc., to Vulcan:
Subsidiaries of Momentum Internet, Inc.
---------------------------------------
1. Momentum Associates Ltd., is a Hong Kong registered corporation and
a wholly-owned subsidiary of Momentum Internet Inc.
2. Momentum Internet (Phils.) Inc., a Philippines corporation is a
wholly-owned subsidiary of Momentum Internet Inc.
3. AsiaEnet Limited, is a Hong Kong registered corporation of which
presently Momentum Internet presently owns 74.0%.
(a) Graphia International, is a wholly-owned subsidiary of
AsiaEnet Limited, which is a partially owned subsidiary of Momentum
Internet, Inc.
4. Swiftrade, Inc., a British Virgin Islands registered corporation,
is a wholly-owned subsidiary of Momentum Internet, Inc. Swiftrade is an
online trading and financial services portal, which provides Internet
access for retail and institutional users to international electronic stock
trading.
Websites of Momentum Internet, Inc.
----------------------------------
"MOMENTUM INTERNET" (www.momentuminternet.com)
"PINMAIL" (www.pinmail.com)
"MEDIAHITS" (www.mediahits.com)
"SWIFTRADE" (www.swiftrade.com)
"ASIAENET" (www.asiaenet.com)
"TIGERTOOTH" (www.tigertooth.com)
"TIGERHITS" (www.tigerhits.com)
"SEARCH DRAGON" (www.searchdragon.com),
"M FINANCE" (www.mfinance.com)
"MING STORES" (www.mingstores.com)
<PAGE>
EXHIBIT 4.4
-----------
SUBSIDIARIES AND WEBSITES WHICH
ARE NOT OWNED OR A PART OF
MOMENTUM INTERNET INCORPORATED
------------------------------
The subsidiaries and websites, including but not limited to, those set
forth below, are owned by ZiaSun or its other subsidiaries and will remain such,
and are not included as a subsidiary or website owned or a part of Momentum
Internet, Inc.
ZiaSun's Subsidiaries
---------------------
1. Online Investors Advantage, Inc., a Utah corporation is a wholly
owned subsidiary of ZiaSun.
2. Momentum Asia, Inc., a corporation organized under the laws of the
Republic of the Philippines, is a wholly owned subsidiary of ZiaSun.
3. Asia Prepress Technologies, Inc., a Maryland Corporation is a
wholly owned subsidiary of ZiaSun.
4. Asia Internet Services.com, Inc., a Maryland Corporation is a
wholly owned subsidiary of ZiaSun.
5. BestWay Beverages, Inc., a Nevada Corporation is a wholly owned
subsidiary of ZiaSun.
Websites of Momentum Asia, Inc.
------------------------------
"SERVICE LIVE"
"MOMENTUM DIRECT"
<PAGE>
EXHIBIT 4.5
-----------
DECEMBER 31, 1999
FINANCIAL STATEMENTS
OF
MOMENTUM INTERNET INCORPORATED
------------------------------
[TO BE PROVIDED PRIOR TO CLOSING]
<PAGE>
EXHIBIT 4.6
-----------
MATERIAL ADVERSE CHANGES IN
FINANCIAL CONDITION
OF
MOMENTUM INTERNET INCORPORATED
------------------------------
Momentum Internet Inc., has depleted its operating capital and only has
sufficient cash on hand to sustain operations through the end of July 2000, with
out an infusion of additional working capital.
<PAGE>
EXHIBIT 4.8
-----------
EXCEPTIONS TO TITLE TO ASSETS AND LEASES
OF
MOMENTUM INTERNET INCORPORATED
------------------------------
None
<PAGE>
EXHIBIT 4.10
------------
INDEBTEDNESS AND LIENS
OF
MOMENTUM INTERNET INCORPORATED
------------------------------
Swiftrade, Inc., a wholly owned subsidiary of Momentum Internet, Inc., is
indebted to Momentum Asia, Inc., a wholly owned subsidiary of ZiaSun, in the
amount of $500,000. Pursuant to the terms of the Amendment to Loan Agreement
dated July 31, 2000, $200,000 shall be due and payable as of August 31, 2000
with the balance of $300,000 due and payable on of before September 30, 2000.
<PAGE>
EXHIBIT 4.13
------------
FRANCHISES, INTELLECTUAL PROPERTY,
LICENSES AND PERMITS
OF
MOMENTUM INTERNET INCORPORATED
------------------------------
1. The designs and programs of the websites set forth on Exhibit 4.3 above are
trade names owned by Momentum Internet, Inc.
2. License Agreement from the Stock Exchange of Hong Kong
3. License Agreement from the London Stock Exchange
<PAGE>
EXHIBIT 4.14
------------
LITIGATION AND PENDING OR THREATEN CLAIMS
OF
MOMENTUM INTERNET INCORPORATED
------------------------------
None
<PAGE>
EXHIBIT 4.15
------------
EXCEPTIONS TO TAX RETURNS AND REPORTS REQUIRED TO BE FILED
BY
MOMENTUM INTERNET INCORPORATED
------------------------------
None
<PAGE>
EXHIBIT 4.18
------------
LIABILITY TO EMPLOYEE AND CLAIMS BY EMPLOYEES
OF
MOMENTUM INTERNET INCORPORATED
------------------------------
None
<PAGE>
EXHIBIT 4.19
------------
LIST OF INSURANCE POLICIES
OF
MOMENTUM INTERNET INCORPORATED
------------------------------
Momentum Internet Inc., itself does not have any insurance policies, but
has the usual and standard office and medical insurance policies for its
subsidiary corporations.
<PAGE>
EXHIBIT 4.20
------------
OFFICERS AND DIRECTORS
OF
MOMENTUM INTERNET INCORPORATED
------------------------------
OFFICERS
--------
President ..................................... Anthony L. Tobin
Chief Financial Officer ....................... None
Secretary...................................... Compsec ltd.
DIRECTORS
---------
Anthony Tobin
Graham Daley
Alan Hubert Day
<PAGE>
EXHIBIT 5.1.3
-------------
REQUIRED GOVERNMENT APPROVALS
OF
VULCAN CONSULTANTS LIMITED
--------------------------
None
<PAGE>
EXHIBIT 5.1.6
-------------
EXCEPTIONS TO TITLE TO ASSETS AND LEASES
OF
VULCAN CONSULTANTS LIMITED
--------------------------
None
<PAGE>
EXHIBIT 5.1.24(a)
-----------------
Registrant Name Change Agreement
for
ZiaSun.com Website
------------------
[To be executed and notarized by Momentum Internet, Inc., transferring the
registration of the ZiaSun.com website to ZiaSun]
<PAGE>
EXHIBIT 5.1.24(b)
-----------------
Registrant Name Change Agreement
for
ZSUN.com Website
----------------
[To be executed and notarized by Momentum Internet, Inc., transferring the
registration of the ZSUN.com website to ZiaSun]
