EXHIBIT 2.1
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ASSET PURCHASE AGREEMENT
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by and among
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CLIFTON TELECARD, INC.
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a Delaware Corporation
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and
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THE AUXER GROUP, INC.
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A Delaware Corporation
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and
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CLIFTON TELECARD ALLIANCE, INC.
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a New Jersey Corporation
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effective as of September 27, 2000
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ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT, made and entered into
this 27th day of September, 2000, by and among Clifton
Telecard, Inc. a Delaware Corporation with its principal
place of business located at 12 Andrews Drive, West
Paterson, NJ 07424 ("Telecard"); The Auxer Group, Inc., a
Delaware corporation with its principal place of business
located at 12 Andrews Drive, West Paterson, NJ 07424
("Auxer") and Clifton Telecard Alliance, Inc. a New Jersey
Corporation with its principal place of business at 8901
Kennedy Boulevard, North Bergen, NJ 07047 ("Clifton").
Premises
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A. This Agreement provides for the acquisition of
all of the assets as listed on Schedule A and the
liabilities listed on Schedule B attached hereto of Clifton
by Telecard and in connection therewith the payment of
$500,000, the issuance of a $200,000 promissory note plus
the issuance of 2,000,000 ($ 0.0001 par value per share)
shares of restricted common stock of Auxer and other
consideration.
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B. The majority shareholders and boards of
directors of Telecard, Auxer and Clifton have determined,
subject to the terms and conditions set forth in this
Agreement, that the transaction contemplated hereby is
desirable and in the best interests of their stockholders,
respectively. This Agreement is being entered into for the
purpose of setting forth the terms and conditions of the
proposed acquisition.
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C. Auxer is the sole shareholder of Telecard and
this Agreement provides for the transfer of all the assets
listed in Schedule A and all the liabilities listed on
Schedule B of Clifton to Telecard.
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D. Both parties agree that the primary purpose for
this Agreement is for the running of the time to go through
the switches located in California and both parties will
undertake all steps to ensure that this part of the
transaction is undertaken immediately after the Closing Date
of this Agreement. Within one week of the Closing Date, all
current and future telecommunications traffic will be run
through the switch equipment to be owned by Auxer's
subsidiary, Auxer Telecom.
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E. Clifton Telecard, Inc. agrees to obtain its own
lease from sellers landlord as soon as possible. This
representation shall survive the closing.
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Agreement
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NOW, THEREFORE, on the stated premises and for and in
consideration of the mutual covenants and agreements
hereinafter set forth and the mutual benefits to the parties
to be derived herefrom, it is hereby agreed as follows:
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ARTICLE I
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REPRESENTATIONS, COVENANTS AND WARRANTIES OF
TELECARD AND AUXER
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As an inducement to and to obtain the reliance of
Clifton, Telecard and Auxer represent and warrant as
follows:
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Section 1.1 ORGANIZATION. Telecard and Auxer are
corporations duly organized, validly existing, and in good
standing under the laws of Delaware and have the corporate
power and are duly authorized, qualified, franchised and
licensed under all applicable laws, regulations, ordinances
and orders of public authorities to own all of their
properties and assets and to carry on its business in all
material respects as it is now being conducted, including
qualification to do business as a foreign corporation in the
jurisdiction in which the character and location of the
assets owned by it or the nature of the business transacted
by it requires qualification. Included in the Telecard and
Auxer Schedules (as hereinafter defined) are complete and
correct copies of the articles of incorporation, bylaws and
amendments thereto of both Telecard and Auxer as in effect
on the date hereof. The execution and delivery of this
Agreement does not and the consummation of the transactions
contemplated by this Agreement in accordance with the terms
hereof will not violate any provision of Auxer or Telecard's
articles of incorporation or bylaws. Auxer and Telecard
have full power, authority and legal right and have taken
all action required by law, its articles of incorporation,
its bylaws or otherwise to authorize the execution and
delivery of this Agreement.
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Section 1.2 OPTIONS AND WARRANTS. There are no
existing options, warrants, calls or commitments of any
character to which Telecard is a party and by which it is
bound. Telecard have no securities, warrants or options
authorized or issued. Auxer presently has 4,500,000 options
outstanding.
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Section 1.3 LITIGATION AND PROCEEDING. To the
best of Auxer's knowledge and belief, there are no actions,
suits, proceedings or investigations pending or threatened
by or against Auxer or affecting Auxer or its properties, at
law or in equity, before any court or other governmental
agency or instrumentality, domestic or foreign or before any
arbitrator of any kind that would have a material adverse
affect on the business, operations, financial condition or
income of Auxer. Auxer does not have any knowledge of any
default on its part with respect to any judgment, order,
writ, injunction, decree, award, rule or regulation of any
court, arbitrator or governmental agency or instrumentality
or of any circumstances which, after reasonable
investigation, would result in the discovery of such a
default.
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To the best of Telecard's knowledge and belief, there
are no actions, suits, proceedings or investigations pending
or threatened by or against Telecard or affecting Telecard
or its properties, at law or in equity, before any court or
other governmental agency or instrumentality, domestic or
foreign or before any arbitrator of any kind that would have
a material adverse affect on the business, operations,
financial condition or income of Telecard. Telecard does
not have any knowledge of any default on its part with
respect to any judgment, order, writ, injunction, decree,
award, rule or regulation of any court, arbitrator or
governmental agency or instrumentality or of any
circumstances which, after reasonable investigation, would
result in the discovery of such a default.
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Section 1.4 MATERIAL CONTRACT DEFAULTS. To the
best of Auxer's knowledge and belief, Auxer is not in
default in any material respect under the terms of any
outstanding contract, agreement, lease or other commitment
which is material to the business, operations, properties,
assets or condition of Auxer, and there is no event of
default in any material respect under any such contract,
agreement, lease or other commitment in respect of which
Auxer has not taken adequate steps to prevent such a default
from occurring.
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To the best of Telecard's knowledge and belief,
Telecard is not in default in any material respect under the
terms of any outstanding contract, agreement, lease or other
commitment which is material to the business, operations,
properties, assets or condition of Telecard, and there is no
event of default in any material respect under any such
contract, agreement, lease or other commitment in respect of
which Auxer has not taken adequate steps to prevent such a
default from occurring.
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Section 1.5 NO CONFLICT WITH OTHER INSTRUMENTS.
The execution of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an
event of default under, any material indenture, mortgage,
deed of trust or other material contract, agreement or
instrument to which Auxer or Telecard is a party or to which
any of their properties or operations are subject.
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Section 1.6 GOVERNMENTAL AUTHORIZATIONS. To the
best of Auxer's knowledge, Auxer and Telecard have all
licenses, franchises, permits or other governmental
authorizations legally required to enable Auxer and Telecard
to conduct its business in all material respects as
conducted on the date hereof. Except for compliance with
federal and state securities and corporation laws, as
hereinafter provided, no authorization, approval, consent or
order of, or registration, declaration or filing with, any
court or other governmental body is required in connection
with the execution and delivery by Auxer and Telecard of
this Agreement and the consummation of Auxer and Telecard of
the transactions contemplated hereby.
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ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF CLIFTON
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As an inducement to, and to obtain the reliance of
Auxer and Telecard, Clifton represents and warrants as
follows:
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Section 2.1 ORGANIZATION. Clifton is a corporation
duly organized, validly existing and in good standing under
the laws of the state of New Jersey and has the corporate
power and is duly authorized, qualified, franchised and
licensed under all applicable laws, regulations, ordinances
and orders of public authorities to own all of its
properties and assets and to carry on its business in all
material respects as it is now being conducted, including
qualification to do business as a foreign entity in the
country or states in which the character and location of the
assets owned by it or the nature of the business transacted
by it requires qualification. Included in the Clifton
Schedules (as hereinafter defined) are complete and correct
copies of the certificate of incorporation, memorandum and
articles of association and amendments thereto of Clifton
as in effect on the date hereof. The execution and delivery
of this Agreement does not and the consummation of the
transactions contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of
Clifton's certificate of incorporation or bylaws. Clifton
has full power, authority and legal right and has taken all
action required by law, its articles of incorporation,
bylaws or otherwise to authorize the execution and delivery
of this Agreement.
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Section 2.2 MINIMUM REVENUE PER MONTH. Clifton
hereby represents that the assets being transferred will
generate and maintain a minimum of $2,000,0000 in revenue
per month for the first year of this Agreement. However,
this is not a guarantee and will depend upon the quality,
service and competitive pricing of the buyers.
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Section 2.3 AUTHORIZATION. Mustafa Qattous,
President of Clifton and the other officers of Clifton will
sign all necessary documents pursuant to the terms of this
Agreement.
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Section 2.4 TAX MATTERS; BOOKS & RECORDS
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(a) The books and records, financial and others, of
Clifton are in all material respects complete and correct
and have been maintained in accordance with good business
accounting practices; and
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(b) Clifton has no liabilities with respect to the
payment of any country, federal, state, county, local or
other taxes (including any deficiencies, interest or
penalties) except as set forth in Schedule B.
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Section 2.5 INFORMATION. The information
concerning Clifton as set forth in this Agreement and in the
Clifton Schedules is complete and accurate in all material
respects and does not contain any untrue statement of a
material fact or omit to state a material fact required to
make the statements made, in light of the circumstances
under which they were made, not misleading.
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Section 2.6 ABSENCE OF CERTAIN CHANGES OR EVENTS.
Except as described herein or in the Clifton Schedules,
since June 30, 2000:
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(a) Clifton has not: (i) waived any rights of value
which in the aggregate are extraordinary or material
considering the business of Clifton; (ii) made any
material change in its method of management, operation or
accounting; or (iii) made any accrual or arrangement for or
payment of bonuses or special compensation of any kind or
any severance or termination pay to any present or former
officer or employee;
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(b) Clifton has not: (i) borrowed or agreed to
borrow any funds or incurred or become subject to, any
material obligation or liability (absolute or contingent)
except liabilities incurred in the ordinary course of
business; and
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(c) to the best knowledge of Clifton, it has not become
subject to any law or regulation which materially and
adversely affects, or in the future may adversely affect,
the business, operations, properties, assets or condition
of.
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Section 2.7 TITLE AND RELATED MATTERS. Clifton
has good and marketable title to and is the sole and
exclusive owner of all of its properties, inventory,
interests in properties and assets, real and personal
(collectively, the "Assets") free and clear of all liens,
pledges, charges or encumbrances. Except as set forth in
the Clifton Schedules, Clifton owns free and clear of any
liens, claims, encumbrances, royalty interests or other
restrictions or limitations of any nature whatsoever and all
procedures, techniques, marketing plans, business plans,
methods of management or other information utilized in
connection with Clifton's business. Except as set forth in
the Clifton Schedules, no third party has any right to, and
Clifton had not received any notice of infringement of or
conflict with asserted rights of others with respect to any
product, technology, data, trade secrets, know-how,
proprietary techniques, trademarks, service marks, trade
names or copyrights which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding,
would have a materially adverse affect on the business,
operations, financial conditions or income of Clifton or any
material portion of its properties, assets or rights.
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Section 2.8 LITIGATION AND PROCEEDINGS. There are
no actions, suits or proceedings pending or, to the best of
Clifton's knowledge and belief, threatened by or against or
affecting Clifton, at law or in equity, before any court or
other governmental agency or instrumentality, domestic or
foreign or before any arbitrator of any kind that would have
a material adverse effect on the business, operations,
financial condition, income or business prospects of
Clifton. Clifton does not have any knowledge of any default
on its part with respect to any judgement, order, writ,
injunction, decree, award, rule or regulation of any court,
arbitrator or governmental agency or instrumentality.
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Section 2.9 CONTRACTS. On the Closing Date:
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(a) There are no material contracts, agreements,
franchises, license agreements, or other commitments to
which Clifton is a party or by which it or any of its
properties are bound;
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(b) Clifton is not a party to any contract,
agreement, commitment or instrument or subject to any
charter or other corporate restriction or any judgment,
order, writ, injunction, decree or award which materially
and adversely affects, or in the future may (as far as
Clifton can now foresee) materially and adversely affect,
the business, operations, properties, assets or conditions
of Clifton; and
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(c) Clifton is not a party to any material oral or
written: (i) contract for the employment of any officer or
employee; (ii) profit sharing, bonus, deferred
compensation, stock option, severance pay, pension, benefit
or retirement plan, agreement or arrangement covered by
Title IV of the Employee Retirement Income Security Act, as
amended; (iii) agreement, contract or indenture relating to
the borrowing of money; (iv) guaranty of any obligation
for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties of
obligations, which, in the aggregate exceeds $1,000; (v)
consulting or other contract with an unexpired term of more
than one year or providing for payments in excess of $10,000
in the aggregate; (vi) collective bargaining agreement;
(vii) contract, agreement, or other commitment involving
payments by it for more than $10,000 in the aggregate.
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Section 2.10 NO CONFLICT WITH OTHER INSTRUMENTS.
The execution of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an
event of default under, any material indenture, mortgage,
deed of trust or other material contract, agreement or
instrument to which Clifton is a party or to which any of
its properties or operations are subject.
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Section 2.11 MATERIAL CONTRACT DEFAULTS. To the
best of Clifton's knowledge and belief, Clifton is not in
default in any material respect under the terms of any
outstanding contract, agreement, lease or other commitment
which is material to the business, operations, properties,
assets or condition of Clifton, and there is no event of
default in any material respect under any such contract,
agreement, lease or other commitment in respect of which
Clifton has not taken adequate steps to prevent such a
default from occurring.
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Section 2.12 GOVERNMENTAL AUTHORIZATIONS. To the
best of Clifton's knowledge, Clifton has all licenses,
franchises, permits and other governmental authorizations
that are legally required to enable it to conduct its
business operations in all material respects as conducted on
the date hereof. Except for compliance with federal and
state securities or corporation laws, no authorization,
approval, consent or order of, or registration, declaration
or filing with, any court or other governmental body is
required in connection with the execution and delivery by
Clifton of the transactions contemplated hereby.
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Section 2.13 COMPLIANCE WITH LAWS AND REGULATIONS.
To the best of Clifton's knowledge and belief, Clifton has
complied with all applicable statutes and regulations of any
federal, state or other governmental entity or agency
thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations,
properties, assets or condition of Clifton or would not
result in Clifton's incurring any material liability.
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Section 2.14 INSURANCE. All of the insurable
properties of Clifton are insured for Clifton's benefit
under valid and enforceable policy or policies containing
substantially equivalent coverage and will be outstanding
and in full force at the Closing Date.
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ARTICLE III
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EXCHANGE PROCEDURE AND OTHER CONSIDERATION
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Section 3.1 BILL OF SALE FOR ASSETS AND EXHIBIT FOR
ASSUMED LIABILITIES. On the Closing Date, Clifton shall
deliver to Auxer a bill of sale for all of the assets of
Clifton and any and all other documents to transfer all of
the assets to Clifton. In addition, at closing Clifton will
provide Telecard with a Schedule of the liabilities of
Clifton that Clifton has agreed to assume under the terms of
this Agreement.
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Section 3.2 ISSUANCE OF 2,000,000 COMMON SHARES;
PAYMENT OF $500,000 AND ISSUANCE OF $200,000 PROMISSORY
NOTE. In exchange for the transfer of all of the assets of
Clifton to Telecard pursuant to Section 3.1, Auxer shall pay
Clifton $500,000; Telecard shall assume the liabilities of
Clifton as indicated on Schedule B; Auxer shall issue a
$200,000 promissory note to Clifton on the following terms
and conditions: terms of repayment: 180 days; interest rate:
8% per annum; and Auxer shall issue 2,000,000 common shares
of Auxer to Clifton at the time of the Closing. The issued
shares shall be restricted under Rule 144 of the 1933
Securities Act.
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Section 3.3 OTHER CONSIDERATION.
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(a) Mustafa Qattous shall be provided with an
employment agreement with Telecard, attached hereto and made
a part hereof, for a three-year term at the same salary base
that he presently has with Clifton.
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(b) Both parties will ensure as soon as possible after
closing, all current and future telecommunications traffic
will be run through the switch equipment in California to be
owned by Auxer's subsidiary, Auxer Telecom.
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Section 3.4 EVENTS PRIOR TO CLOSING. Upon
execution hereof or as soon thereafter as practical,
management of Auxer, Telecard and Clifton shall execute,
acknowledge and deliver (or shall cause to be executed,
acknowledged and delivered) any and all certificates,
opinions, financial statements, schedules, agreements,
resolutions rulings or other instruments required by this
Agreement to be so delivered, together with such other items
as may be reasonably requested by the parties hereto and
their respective legal counsel in order to effectuate or
evidence the transactions contemplated hereby, subject only
to the conditions to Closing referenced herein below.
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Section 3.6 CLOSING. The closing ("Closing") of
the transactions contemplated by this Agreement shall be on
or about September 19, 2000 ("Closing Date").
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Section 3.7 TERMINATION.
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(a) This Agreement may be terminated by the board
of directors or majority interest of Shareholders of either
Auxer, Telecard or Clifton, respectively, at any time prior
to the Closing Date if:
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(i) there shall be any action or proceeding before
any court or any governmental body which shall seek to
restrain, prohibit or invalidate the transactions
contemplated by this Agreement and which, in the judgement
of such board of directors, made in good faith and based on
the advice of its legal counsel, makes it inadvisable to
proceed with the exchange contemplated by this Agreement; or
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(ii) any of the transactions contemplated hereby
are disapproved by any regulatory authority whose approval
is required to consummate such transactions.
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In the event of termination pursuant to this paragraph (a)
of this Section 3.5, no obligation, right, or liability
shall arise hereunder and each party shall bear all of the
expenses incurred by it in connection with the negotiation,
drafting and execution of this Agreement and the
transactions herein contemplated.
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(b) This Agreement may be terminated at any time
prior to the Closing Date by action of the board of
directors of Auxer or Telecard if Clifton shall fail to
comply in any material respect with any of its covenants or
agreements contained in this Agreement or if any of the
representations or warranties of Clifton contained herein
shall be inaccurate in any material respect, which
noncompliance or inaccuracy is not cured after 20 days
written notice thereof is given to Clifton. If this
Agreement is terminated pursuant to this paragraph (b) of
this Section 3.5, this Agreement shall be of no further
force or effect and no obligation, right or liability shall
arise hereunder.
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ARTICLE IV
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SPECIAL COVENANTS
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Section 4.1 ACCESS TO PROPERTIES AND RECORDS.
Prior to closing, Auxer, Telecard and Clifton will each
afford to the officers and authorized representatives of the
other full access to the properties, books and records of
each other, in order that each may have full opportunity to
make such reasonable investigation as it shall desire to
make of the affairs of the other and each will furnish the
other with such additional financial and operating data and
other information as to the business and properties of each
other, as the other shall from time to time reasonably
request.
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Section 4.2 AVAILABILITY OF RULE 144. Auxer
shareholders holding "restricted securities, " as that term
is defined in Rule 144 promulgated pursuant to the
Securities Act will remain as "restricted securities."
Auxer is under no obligation to register such shares under
the Securities Act, or otherwise. The stockholders of Auxer
holding restricted securities of Auxer and their respective
heirs, administrators, personal representatives, successors
and assigns, are intended third party beneficiaries of the
provisions set forth herein. The covenants set forth in
this Section 4.2 shall survive the Closing and the
consummation of the transactions herein contemplated.
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Section 4.3 SPECIAL COVENANTS AND REPRESENTATIONS
REGARDING THE AUXER COMMON SHARES TO BE ISSUED IN THE
AGREEMENT. The consummation of this Agreement, including
the issuance of the Auxer Common Shares to Clifton as
contemplated hereby, constitutes the offer and sale of
securities under the Securities Act, and applicable state
statutes. Such transaction shall be consummated in reliance
on exemptions from the registration and prospectus delivery
requirements of such statutes which depend, inter alia, upon
the circumstances under which Clifton acquires such
securities.
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Section 4.4 THIRD PARTY CONSENTS. Auxer, Telecard
and Clifton agree to cooperate with each other in order to
obtain any required third party consents to this Agreement
and the transactions herein contemplated.
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Section 4.5 ACTIONS PRIOR AND SUBSEQUENT TO
CLOSING.
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(a) From and after the date of this Agreement until
the Closing Date, except as permitted or contemplated by
this Agreement, Clifton, Telecard and Auxer will each use
its best efforts to:
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(i) carry on its business in substantially the
same manner as it has heretofore;
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(ii) maintain and keep its properties in
states of good repair and condition as at present, except
for depreciation due to ordinary wear and tear and damage
due to casualty;
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(iii) maintain in full force and effect
insurance comparable in amount and in scope of coverage to
that now maintained by it;
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(iv) perform in all material respects all of
its obligations under material contracts, leases and
instruments relating to or affecting its assets, properties
and business;
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(v) maintain and preserve its business
organization intact, to retain its key employees and to
maintain its relationship with its material suppliers and
customers; and
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(vi) fully comply with and perform in all
material respects all obligations and duties imposed on it
by all federal and state laws and all rules, regulations and
orders imposed by federal or state governmental authorities.
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Section 4.6 INDEMNIFICATION.
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(a) Clifton hereby agrees to indemnify Auxer and
Telecard and each of the officers, agents and directors of
Auxer and Telecard as of the date of execution of this
Agreement against any loss, liability, claim, damage or
expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing
or defending against any litigation, commenced or threatened
or any claim whatsoever), to which it or they may become
subject to or rising out of or based on any inaccuracy
appearing in or misrepresentation made in this Agreement,
including, but not limited to, misrepresentations. The
indemnification provided for in this paragraph shall survive
the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement.
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ARTICLE V
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CONDITIONS PRECEDENT TO OBLIGATIONS OF AUXER AND TELECARD
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The obligations of Auxer of Telecard under this
Agreement are subject to the satisfaction, at or before the
Closing Date, of the following conditions:
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Section 5.1 ACCURACY OF REPRESENTATIONS. The
representations and warranties made by Clifton in this
Agreement were true when made and shall be true at the
Closing Date with the same force and effect as if such
representations and warranties were made at the Closing Date
(except for changes therein permitted by this Agreement),
and Clifton shall have performed or compiled with all
covenants and conditions required by this Agreement to be
performed or complied with by Clifton prior to or at the
Closing.
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Section 5.2 OFFICER'S CERTIFICATE. Auxer
shall be furnished with a certificate dated the Closing date
and signed by a duly authorized officer of Clifton to the
effect that: (a) the representations and warranties of
Clifton set forth in the Agreement and in all Exhibits,
Schedules and other documents furnished in connection
herewith are in all material respects true and correct as if
made on the Effective Date; and (b) Clifton had performed
all covenants, satisfied all conditions, and complied with
all other terms and provisions of the Agreement to be
performed, satisfied or complied with by it as of the
Effective Date.
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Section 5.3 APPROVAL. Mustafa Qattous shall
have the proper authority to bind Clifton to the terms of
the Agreement and the transactions contemplated herein.
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Section 5.4 NO MATERIAL ADVERSE CHANGE. Prior
to the Closing Date, there shall not have occurred any
material adverse change in the financial condition, business
or operations of nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or
create any material adverse change in the financial
condition, business or operations of Clifton.
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Section 5.5 OTHER ITEMS. Auxer shall have
received such further documents, certificates or instruments
relating to the transactions contemplated hereby as Auxer
may reasonably request.
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ARTICLE VI
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CONDITIONS PRECEDENT TO OBLIGATIONS OF CLIFTON
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The obligations of Clifton under this Agreement are
subject to the satisfaction, at or before the Closing date
(unless otherwise indicated herein), of the following
conditions:
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Section 6.1 ACCURACY OF REPRESENTATIONS. The
representations and warranties made by Auxer and Telecard
in this Agreement were true when made and shall be true as
of the Closing Date (except for changes therein permitted by
this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the
Closing Date, and Auxer and Telecard shall have performed
and complied with all covenants and conditions required by
this Agreement to be performed or complied with by Auxer and
Telecard prior to or at the Closing. Clifton shall have
been furnished with a certificate, signed by a duly
authorized executive officer of Auxer and Telecard and dated
the Closing Date, to the foregoing effect.
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Section 6.2 OFFICER'S CERTIFICATE. Clifton
shall be furnished with a certificate dated the Closing date
and signed by a duly authorized officer of Auxer and
Telecard to the effect that: (a) the representations and
warranties of Auxer and Telecard set forth in the Agreement
and in all Exhibits, Schedules and other documents furnished
in connection herewith are in all material respects true and
correct as if made on the Effective Date; and (b) Auxer and
Telecard had performed all covenants, satisfied all
conditions, and complied with all other terms and provisions
of the Agreement to be performed, satisfied or complied with
by it as of the Effective Date.
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Section 6.3 NO MATERIAL ADVERSE CHANGE. Prior to
the Closing Date, there shall not have occurred any material
adverse change in the financial condition, business or
operations of nor shall any event have occurred which, with
the lapse of time or the giving of notice, may cause or
create any material adverse change in the financial
condition, business or operations of Auxer and Telecard.
<P>
Section 6.4 OTHER ITEMS. Clifton shall have
received such further documents, certificates or instruments
relating to the transactions contemplated hereby as Clifton
may reasonably request.
<P>
ARTICLE VII
MISCELLANEOUS
<P>
Section 7.1 BROKERS AND FINDERS. Each party
hereto hereby represents and warrants that it is under no
obligation, express or implied, to pay certain finders in
connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement.
The parties each agree to indemnify the other against any
claim by any third person not listed in Schedule 7.1 for any
commission, brokerage or finder's fee or other payment with
respect to this Agreement or the transactions contemplated
hereby based on any alleged agreement or understanding
between the indemnifying party and such third person,
whether express or implied from the actions of the
indemnifying party.
<P>
Section 7.2 LAW, FORUM AND JURISDICTION. This
Agreement shall be construed and interpreted in accordance
with the laws of the State of New Jersey, United States of
America.
<P>
Section 7.3 NOTICES. Any notices or other
communications required or permitted hereunder shall be
sufficiently given if personally delivered to it or sent by
registered mail or certified mail, postage prepaid, or by
prepaid telegram addressed as follows:
<P>
If to Auxer and Clifton: 12 Andrews Drive
West Paterson, NJ 07424
<P>
and : Richard I. Anslow & Associates
4400 Route 9 South, 2nd Floor
Freehold, NJ 07728
<P>
If to Clifton: 8901 Kennedy Boulevard
North Bergen, NJ 07047
<P>
or such other addresses as shall be furnished in writing by
any party in the manner for giving notices hereunder, and
any such notice or communication shall be deemed to have
been given as of the date so delivered, mailed or
telegraphed.
<P>
Section 7.4 ATTORNEYS' FEES. In the event that
any party institutes any action or suit to enforce this
Agreement or to secure relief from any default hereunder or
breach hereof, the breaching party or parties shall
reimburse the non-breaching party or parties for all costs,
including reasonable attorneys' fees, incurred in connection
therewith and in enforcing or collecting any judgment
rendered therein.
<P>
Section 7.5 CONFIDENTIALITY. Each party hereto
agrees with the other party that, unless and until the
transactions contemplated by this Agreement have been
consummated, they and their representatives will hold in
strict confidence all data and information obtained with
respect to another party or any subsidiary thereof from any
representative, officer, director or employee, or from any
books or records or from personal inspection, of such other
party, and shall not use such data or information or
disclose the same to others, except: (i) to the extent
such data is a matter of public knowledge or is required by
law to be published; and (ii) to the extent that such data
or information must be used or disclosed in order to
consummate the transactions contemplated by this Agreement.
<P>
Section 7.6 SCHEDULES; KNOWLEDGE. Each party is
presumed to have full knowledge of all information set forth
in the other party's schedules delivered pursuant to this
Agreement.
<P>
Section 7.7 THIRD PARTY BENEFICIARIES. This
contract is solely between Auxer and Clifton and except as
specifically provided, no director, officer, stockholder,
employee, agent, independent contractor or any other person
or entity shall be deemed to be a third party beneficiary of
this Agreement.
<P>
Section 7.8 ENTIRE AGREEMENT. This Agreement
represents the entire agreement between the parties relating
to the subject matter hereof. This Agreement alone fully
and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other
courses of dealing, understanding, agreements,
representations or warranties, written or oral, except as
set forth herein. This Agreement may not be amended or
modified, except by a written agreement signed by all
parties hereto.
<P>
Section 7.9 SURVIVAL; TERMINATION. The
representations, warranties and covenants of the respective
parties shall survive the Closing Date and the consummation
of the transactions herein contemplated for 18 months.
<P>
Section 7.10 COUNTERPARTS. This Agreement may
be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be
but a single instrument.
<P>
Section 7.11 AMENDMENT OR WAIVER. Every right
and remedy provided herein shall be cumulative with every
other right and remedy, whether conferred herein, at law, or
in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by
the other shall be construed as a waiver of the same or any
other default then, theretofore, or thereafter occurring or
existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties
hereto, with respect to any of the terms contained herein,
and any term or condition of this Agreement may be waived or
the time for performance hereof may be extended by a writing
signed by the party or parties for whose benefit the
provision is intended.
<P>
Section 7.12 INCORPORATION OF RECITALS. All of
the recitals hereof are incorporated by this reference and
are made a part hereof as though set forth at length herein.
<P>
Section 7.13 EXPENSES. Each party herein shall
bear all of their respective cost s and expenses incurred in
connection with the negotiation of this Agreement and in the
consummation of the transactions provided for herein and the
preparation thereof.
<P>
Section 7.14 HEADINGS; CONTEXT. The headings of
the sections and paragraphs contained in this Agreement are
for convenience of reference only and do not form a part
hereof and in no way modify, interpret or construe the
meaning of this Agreement.
<P>
Section 7.15 BENEFIT. This Agreement shall be
binding upon and shall inure only to the benefit of the
parties hereto, and their permitted assigns hereunder. This
Agreement shall not be assigned by any party without the
prior written consent of the other party.
<P>
Section 7.16 PUBLIC ANNOUNCEMENTS. Except as
may be required by law, neither party shall make any public
announcement or filing with respect to the transactions
provided for herein without the prior consent of the other
party hereto. Notwithstanding same, both parties agree that
Auxer will be issuing a press release regarding this
transaction.
<P>
Section 7.17 SEVERABILITY. In the event that
any particular provision or provisions of this Agreement or
the other agreements contained herein shall for any reason
hereafter be determined to be unenforceable, or in
violation of any law, governmental order or regulation, such
unenforceability or violation shall not affect the remaining
provisions of such agreements, which shall continue in full
force and effect and be binding upon the respective parties
hereto.
<P>
Section 7.18 FAILURE OF CONDITIONS; TERMINATION.
In the event of any of the conditions specified in this
Agreement shall not be fulfilled on or before the Closing
Date, either of the parties have the right either to proceed
or, upon prompt written notice to the other, to terminate
and rescind this Agreement without liability to any other
party. The election to proceed shall not affect the right
of such electing party reasonably to require the other party
to continue to use its efforts to fulfill the unmet
conditions.
<P>
Section 7.19 NO STRICT CONSTRUCTION. The
language of this Agreement shall be construed as a whole,
according to its fair meaning and intendment, and not
strictly for or against either party hereto, regardless of
who drafted or was principally responsible for drafting the
Agreement or terms or conditions hereof.
<P>
Section 7.20 EXECUTION KNOWING AND VOLUNTARY.
In executing this Agreement, the parties severally
acknowledge and represent that each: (a) has fully and
carefully read and considered this Agreement; (b) has been
or has had the opportunity to be fully apprized by its
attorneys of the legal effect and meaning of this document
and all terms and conditions hereof; (c) is executing this
agreement voluntarily, free from any influence, coercion or
duress of any kind.
<P>
IN WITNESS WHEREOF, the corporate parties hereto have
caused this Agreement to be executed by their respective
officers, hereunto duly authorized, and entered into as of
the date first above written.
<P>
<TABLE>
<S> <C>
THE AUXER GROUP, INC.
ATTEST:
<P>
/s/ Eugene Chiaramonte By: /s/ Eugene Chiaramonte
------------------------------ -----------------------------------------
, Secretary Eugene Chiaramonte, Jr., President
<P>
ATTEST: CLIFTON TELECARD, INC.
<P>
/s/ Eugene Chiaramonte By: /s/ Ronald Shaver
------------------------------ -----------------------------------------
, Secretary Ronald Shaver, President
<P>
ATTEST: CLIFTON TELECARD ALLIANCE, INC.
<P>
/s/ Afif Asmar By:/s/ Mustafa Qattous
------------------------------ -----------------------------------------
, Secretary Mustafa Qattous, President
<P>
</TABLE>
<P>
<PAGE>
SCHEDULE A
<P>
To
Bill of Sale
Of the Assets of
Clifton Telecard Alliance, Inc.
Dated September 27, 2000
<P>
In Conjunction With The Asset Purchase Agreement
By and Among
<P>
CLIFTON TELECARD, INC., a Delaware Corporation
and
THE AUXER GROUP, INC., a Delaware Corporation
and
CLIFTON TELECARD ALLICANCE, INC., a New Jersey Corporation
Effective September 27, 2000
<P>
Bank Book Balance $401,388
A/R Schedule $513,046
Inventory Schedule $543,866
Equipment Schedule $18,995
Deposits $9,403
Prepaid Printing $8,000
TM/Patents Schedule N/A
<P>
<TABLE>
<S> <C> <C>
/s/ Mustafa Qattous /s/ Ronald Shaver /s/ Eugene Chiaramonte, Jr.
------------------------- ------------------- ---------------------------
Mustafa Qattous Ronald Shaver Eugene Chiaramonte, Jr.
Clifton Telecard Alliance, Inc. Clifton Telecard, Inc. The Auxer Group, Inc.
</TABLE>
<P>
</PAGE>
<PAGE>
<P>
SCHEDULE B
<P>
To
Bill of Sale
Of the Liabilities of
Clifton Telecard Alliance, Inc.
Dated September 27, 2000
<P>
In Conjunction With The Asset Purchase Agreement
By and Among
<P>
CLIFTON TELECARD, INC., a Delaware Corporation
and
THE AUXER GROUP, INC., a Delaware Corporation
and
CLIFTON TELECARD ALLICANCE, INC., a New Jersey Corporation
Effective September 27, 2000
<P>
A/P Schedule $1,377,637
Obligations Schedule $0
<P>
<TABLE>
<S> <C> <C>
/s/ Mustafa Qattous /s/ Ronald Shaver /s/ Eugene Chiaramonte, Jr.
------------------------- ------------------- ---------------------------
Mustafa Qattous Ronald Shaver Eugene Chiaramonte, Jr.
Clifton Telecard Alliance, Inc. Clifton Telecard, Inc. The Auxer Group, Inc.
</TABLE>
<P>
</PAGE>
<P>
