UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF SMALL BUSINESS ISSUERS
Under Section 12 (g) of the Securities and Exchange Act of 1934
ASYST CORPORATION
(Name of Small Business in its charter)
UTAH 87-0416131
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
6170 South 380 West, #225, Murray, UT 84107
(Address of principal executive offices) (Zip Code)
Issuer's Telephone number: ( 801 ) 263-1661
Securities to be registered under Section 12(g) of the Act:
Common
(Title of Class)
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
PART I
Item 1. Description of Business.
The Company
Asyst Corporation (the "Company") was organized as a Utah corporation on
August 27, 1984. Its offices are located at 6170 South 380 West, Suite 225,
Murray, UT 84107.
The Company was incorporated under the laws of the State of Utah to engage in
the electronics and software industries and as such to manufacture, hold,
purchase, or otherwise acquire, buy sell, both retail and wholesale and to
generally deal in articles in the electronics and software industries, and
all other articles of merchandise of a kindred nature and all such articles
commonly supplied or dealt in by businesses engaged in the electronics and
software industry. The Company may also engage in any lawful activity
authorized under the laws of the State of Utah.
From 1984 to 1995 the Company, which was then known as Ad Systems, Inc., was
involved in the development and marketing of an electronic product used to
insert local advertising spots on cable television transmissions. In 1995,
the name "Ad-Systems" and all rights to exploit the product were sold, subject
to all related liabilities, for cash. Thereupon, management began the
development of a spread spectrum relemetry radio system used to remotely
moniter and control radio operated equipment applications of may kinds. In
1997 this product was sold, subject to all related liabilities, to World
Wireless Communications in exchange for 60,000 shares of World Wireless
common stock. The Company has conducted no active business operations for
more than three years aside from maintaining its status as an active business
corporation under the laws of the State of Utah. Accordingly, the Company
does not offer or distribute any services or products, does not have
competitors, does not require raw materials to conduct any business, and has
no customers, patents, trademarks, licenses, franchises, concessions,
royalty agreements or labor contracts. It conducts no business requiring
government approval. It has conducted no research or development activities,
does not conduct any business requiring compliance with any federal law, and
has no employees.
Management's sole business plan at this point is to seek opportunities to
acquire active business operations by merger, acquisition or the acquisition
of assets in exchange for common shares of the Company. The Company is not
reviewing any opportunities in a specific industry. No assurance can be given
that any active business operation will become available to the Company or
that if available, such operations could be acquired on terms favorable to
existing stockholders or conducted profitably.
Competition
The Company is not now conducting any active business operations.
The only business in which the Company intends to engage in the
foreseeable future is to seek out active business corporations who
may wish to enter into a reverse merger or acquisition
reorganization with the Company so as to permit it to conduct the
business operations of the target. No particular targets have been
identified, no reorganization negotiations have been conducted, and
no assurance can be given that any corporation or business operation
willing to enter into a business reorganization with the Company can
be found. If none are found, the Company will remain inactive.
Item 2. Management's Discussion and Analysis or Plan of Operation.
The Company has reported no revenues from operations for the years ended
July 31, 1999 and 1998 and has sold its techology. At the present time, the
Company's current expenses are minimal, amounting to less than $2,000 per
year. The Company does not plan to conduct any active business operations in
the foreseeable future which would materially increase its cash demands.
Barring unexpected increases in cash demands, Michael Vardakis, beneficiary of
an Employee Compensatory Benefit Plan through which he has acquired 250,000 of
the Company's common shares has agreed to discharge the Company's monthly
operational expenses. Management believes, based upon Mr. Vardakis'
commitment, that the Company will be able to discharge its ongoing business
expenses, including legal and accounting expenses and the payment of fees
required to maintain the Company as a corporation in good standing with the
State of Utah Department of Commerce, Department of Corporations and
Commercial Code, for the next twelve months without raising any additional
capital.
The Company's ability to continue as a going concern in the longer term will
depend on its ability to locate and negotiate the acquisition of some
well-capitalized merger or acquisition candidate. The ability of any such
candidate to meet its own ongoing expenses as well as the accrued expenses of
the Company will be a significant factor in evaluating any such prospect. No
assurance can be given that any acquisition or merger candidate capable of
sustaining itself and the Company as going concerns can be given.
The Company executed a note payable to World Wireless Communications for
$66,429.50. An agreement was reached and approved by the Board of Directors
in September of 1999 pursuant to which Michael Vardakis paid this note in full
in exchange for assignment to him of the 100,000 World Wireless common shares
owned by the Company. See October 31, 1999 unaudited balance sheet herein.
Item 3. Description of Property.
The Company currently occupies office space located in Murray, Utah
which is provided to it by management without cost.
Item 4. Security Ownership of Certain Beneficial Owners and Management.
The following table sets forth the amount and nature of beneficial
ownership of each of the executive officers and directors of the Company and
each person known to be a beneficial owner of more than five percent of the
issued and outstanding shares of the Company as of May 30, 1999. The table
sets forth the information based on 850,000 common shares issued and
outstanding as of May 30, 1999.
Title of Class Name and Address Amount and Nature Percent of
of Beneficial Owner of Beneficial Owner Class
Common Bob Hall 114,110 13.28%
5435 Dunbarton Dr
SLC, UT 84117
Common Officers and Directors 114,110 13.28%
as a Group
Common Gerald VanMondfrans 38,960 4.53%
2944 E. Mandcrest Ct.
SLC, UT 84121
Common Gerald A. VanMondfrans 75,150 8.75%
2944 E. Mandcrest Ct.
SLC, UT 84121
Common World Wireless 100,000 11.64%
Communications *
150 N Wright Brothers Dr
Salt Lake City, UT 84116
Common Michael Vardakis 250,000 29.01%
77 East 400 South
Salt Lake City, UT 84111
*Asyst Corporation is the beneficial holder of the World Wireless
Communications stock.
None of the foregoing have any right to acquire other or additional
shares of the Company. There is no existing arrangement which may
result in a change in control of the Company. However, if an active
business is found with which to enter into some form of corporate
reorganization, a change in control of the Company will be
contemplated as part of such reorganization.
Item 5. Directors, Executive Officers, Promoters and Control Persons.
The names, addresses, ages and respective positions of the
current directors and officers of the Company are as follows:
Name Age Position Date Held
Bob Hall
5435 Dunbarton Dr
SLC, UT 84117 66 President August 24, 1984
Director August 24, 1984
Philip A. Bunker
2441 South 3850 West
West Valley, UT 84120 47 Secretary May 7, 1998
Director May 7, 1998
David D. Singer
2441 South 3850 West
West Valley, UT 84120 50 Treasurer May 7, 1998
Director May 7, 1998
Bob Hall, president and a director, was a founder of the
Company and has served as an executive officer, director and a full-time
employee of the Company, since its organization in 1984. From 1984 to 1986,
Mr. Hall was employed by the Company on a part-time basis and served as vice
president. From 1982 to 1984, Mr. Hall was employed as marketing director of
a subsidiary of Texscan Corporation, a publicly held corporation engaged in
the manufacture of specialized instruments and other equipment for the cable
television industry. Prior to that time, Mr. Hall was employed by Hercules,
Inc., Litton Industries, KDI Corporation, Corn Tel, Inc., and Video Data
Systems in various positions involving technical operations and marketing in
the electromechanical equipment industry. Mr. Hall graduated from the
University of Utah in 1961 with a degree in electrical engineering.
Since the sale of the Company's assets in 1995, Mr. Hall has been employed by
Cable Services Technology, Inc., dba Sky Connect, and has continued as
president and director of the Company.
David D. Singer, secretary and a director, is currently
President and director of World Wireless Communications, Inc. From
1977 to 1983, Mr. Singer was President of CSL Energy Controls, Inc.,
a company specializing in third party energy conservation. From
1983 to 1985, Mr. Singer was a special consultant to the General
President of the Sheetmetal Workers Association. From 1985 to 1988,
Mr. Singer was Vice President First Municipal Division, Bank One
Leasing Corporation. From 1988 to 1991, Mr. Singer was President of
Highland Energy Group. From 1991 to his appointment to his present
position with World Wireless Communications, Inc. in 1996, Mr.
Singer was President and Chief Operation Officer of Navtech
Industries, Inc., an electronic assembly company. Mr. Singer holds
a Bachelor's Degree in Electrical Engineering from the Lawrence
Institute of Technology.
Philip A. Bunker, treasurer and a director, and was co-founder
of Digital Radio Communications Corp. ("DRCC"), a corporation involved in the
development of state-of-the-art wireless technologies for commercial and
industrial uses. He served as its
President and Chief Executive Officer from 1992 DRCC's final merger into
World Wireless Communications, Inc. in 1997 and has served as a
director of World Wireless since its acquisition of DRCC. While at
DRCC, Mr. Bunker and his engineering team developed a computer-aided program
used in advanced integrated circuit design programs such as Motorola's 68020
and 68030 and National's 32000 microprocessors. From 1986 to 1992, Mr.
Bunker was President of Desert Digital, a digital electronics and design company
a company that was acquired by DRCC in 1992. Mr. Bunker received a Bachelor's
Degree in Electrical Engineering from the University of Utah.
Mr. Bunker and Mr. Singer are directors of World Wireless Corporation a
reporting company. There are no family relationships between any of the
directors or executive officers of the Company or any person beneficially
owning or controlling more than 5% of its outstanding common shares.
To the knowledge of the Company, no present or former
director, executive officer or person nominated to become a director
or executive of the Company has ever:
1) Filed a bankruptcy petition by or against any business
of which such person was a general partner or executive officer either at
the time of the bankruptcy or with two years prior to that time;
2) Had any conviction in a criminal proceeding or being
subject to a pending criminal proceeding (excluding traffic violations and
other minor offenses);
3) Been subject to any order, judgment, or decree, not
subsequently reversed, suspended or vacated, of any court of competent
jurisdiction, permanently or temporarily enjoining, barring, suspending or
otherwise limiting his involvement in any type of business, securities or
banking activities; and
4) Been found by a court of competent jurisdiction (in a
civil action), the Commission or the Commodity Futures Trading Commission
to have violated a federal or state securities or commodities law, and the
judgment has not been reversed suspended or vacated.
Item 6. Executive Compensation.
The Company currently is not now paying, and has not
during the past three years, paid any compensation to officers,
directors or executives. It does not have any pension,
profit-sharing, stock bonus, or other benefit plans. Such plans may
be adopted in the future at the discretion of the Board of
Directors.
Item 7. Certain Relationships and Related Transactions.
On May 18, 1999 the Board of Directors unanimously adopted
written Compensatory Benefit Plan under which it agreed to issue
250,000 common shares of the Company to Michael Vardakis as
compensation for services to the Company and cash provided by him
for the benefit of the Company, between February of 1997 and May 30,
1999. Pursuant to his agreement, Mr. Vardakis, ascertained the Company's
status with the State of Utah and paid all expenses to bring it current with
the State, assembled and organized the Company's books and records, retained
and paid all fees connected with obtaining the legal work and auditing
services necessary to prepare and file this registration statement,
participated in negotiating transactions to terminate the Company's prior
business activities and eliminate related debt, and assisted in the
performance of the miscellaneous services required to prepare the Company to
change its business direction. These services and cash payments, identified
by a schedule attached to the written Compensatory Benefit Plan, were valued by
the Board at a sum in excess of the par value of the shares issued
on the basis that the cash and monetary obligations incurred by
Vardakis on behalf of the corporation exceed $9,000 and that his
time should be compensated at a rate of not less than $25 per hour.
The shares, when issued, were not registered under the Securities
Act of 1933 but were issued in reliance on the exemption from
registration provided by Section 3(b) of the Act and Rule 701
promulgated thereunder.
Item 8. Description of Securities.
The aggregate number of shares which the Company shall be authorized
to issue is 50,000,000 shares of non-assessable voting common stock
having par value of $0.001. The capital stock of the Company shall be issued
as fully paid and non-assessable. The shareholders shall not be liable for the
debts, obligations or liabilities of this Company.
Holders of common shares have no pre-emptive right to acquire any
unissued shares of the corporation. At meetings of the
shareholders, a majority of the shares entitled to vote, represented
in person or by proxy, constitute a quorum and, if a quorum is
present, the affirmative vote of a majority of the shares
represented at the meeting and entitled to vote shall constitute the
act of the shareholders. Any dividends paid on common shares of the
corporation shall be paid pro rata to the number of common shares
outstanding. Upon dissolution of the corporation, its assets after
payment of all claims, shall be distributed to the holders of common
shares pro rata.
PART II
Item 1. Market Price of and Dividends on the Registrant's Common
Equity and other Shareholder Matters.
At the present time there is no public trading market for the
Company's common shares.
Item 2. Legal Proceedings.
To the best of the Company's knowledge it is not a party
to any pending legal proceedings.
Item 3. Changes in and Disagreements with Accountants.
The company knows of no changes in or disagreements with
accountants on accounting and financial disclosure.
Item 4. Recent Sales of Unregistered Securities.
By resolution dated May 18, 1999 the Company adopted a
Compensatory Benefit Plan in favor of Michael Vardakis pursuant to
which it caused the issuance of 250,000 of the Company's common
shares, registered to Michael Vardakis.
Item 5. Indemnification of Directors and Officers.
The Company's Articles of Incorporation contain no
provisions regarding indemnification of officers and directors,
However, Section VIII of the Company's By-laws provide that no
officer or director shall be personally liable for, and shall be
indemnified by the corporation for any claims, judgments and
liabilities to which such person shall become subject by reason of
his having been a director or officer of the corporation, or by
reason of any action alleged to have been taken or omitted to have
been taken by him as such director or officer, except that no such
person shall be indemnified against, or be reimbursed for, any
expense incurred in connection with any claim or liability arising
out of his own negligence or willful misconduct. The Corporation, its
directors, officers, employees and agents shall be fully protected in taking
any action or making any payment or in refusing so to do in reliance upon the
advice of counsel.
PART F/S
ASYST CORPORATION
Condensed Financial Statements
October 31, 1999
Independent Accountants' Report
To the Directors and Shareholders
Asyst Corporation
The accompanying condensed balance sheet of Asyst Corporation, as of
October 31, 1999, and the related condensed statements of operations and cash
flows for the periods ended October 31, 1999, and October 31, 1998, were not
audited by us and accordingly, we do not express an opinion on them.
December 2, 1999 Mantyla McReynolds<PAGE>
Asyst Corporation
Condensed Balance Sheet
(Unaudited)
ASSETS
October 31, 1998
Current Assets $-0-
Total Current Assets -0-
TOTAL ASSETS $-0-
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current Liabilities
Accounts payable $1,129
Total Current Liabilities 1,129
Stockholders' Deficit
Common stock 850
Additional paid in capital 300,822
Accumulated deficit (302,801)
Total Stockholders' Deficit (1,129)
TOTAL LIABILITIES AND STOCKHOLDERS' DEFICIT $-0-
See accompanying notes and Independent Accountants' report
Asyst Corporation
Condensed Statements of Operations
(Unaudited)
For the Three For the Three
Months Ended Months Ended
October 31, 1999 October 31, 1998
Revenues $-0- $-0-
Operating expense -0- 2,581
Operating loss -0- (2,581)
Realized gain on disposal of
investments 68,407
Interest expense -0- (1,044)
Net income (loss) 68,407 (3,625)
Other Comprehensive income(loss)
Loss on marketable securities
(net of tax) -0- (68,211)
Total comprehensive income (loss) 68,407 $(71,836)
Net Income (loss) per Share $0.08 $(0.01)
Weighted Average Number of
Shares Outstanding 850,000 599,994
See accompanying notes and Independent Accountants' report
Asyst Corporation
Condensed Statements of Cash Flows
(Unaudited)
For the Three For the Three
Months Ended Months Ended
October 31, 1999 October 31, 1998
Cash Flows Used for Operating Activities:
Net Income (Loss) $68,407 $(3,625)
Adjustments to reconcile net loss to
net cash used for operating activities:
Gain on disposal of investments (68,407)
Increase (decrease) in current
liabilities -0- 3,233
Net Cash Flows Used for Operating
Activities -0- (392)
Net Increase (Decrease) in Cash -0- (392)
Beginning Cash Balance -0- 392
Ending Cash Balance $-0- $-0-
Supplemental disclosure:
Investment of $90,000 was disposed of as settlement of debt on September 30,
1999.
See accompanying notes and Independent Accountants' report<PAGE>
Asyst Corporation
Notes to Condensed Financial Statements
October 31, 1999
PRELIMINARY NOTE
The accompanying condensed consolidated financial statements have been
prepared without audit, pursuant to the rules and regulations of the
Securities and Exchange Commission. Certain information and disclosures
normally included in financial statements prepared in accordance with
generally accepted accounting principles have been condensed or omitted. It
is suggested that these condensed financial statements be read in conjunction
with the financial statements and notes thereto included in the Company's
Annual Report on Form 10-SB for the year ended July 31, 1999.
ORGANIZATION
Asyst Corporation [formerly known as Ad Systems, Inc.] incorporated under the
laws of the State of Utah on August 27, 1984. Asyst has sold all its assets
and is presently seeking new business ventures.
ASYST CORPORATION
Financial Statements and Independent Auditors' Report
July 31, 1999
ASYST CORPORATION
Page
Independent Auditors'
Report 1
Balance Sheet -- July 31, 1999 2
Statement of Operations for the Years Ended
July 31, 1999 and 1998 3
Statement of Stockholders' Equity for the Years
Ended July 31, 1999 and 1998 4
Statement of Cash Flows for the Years Ended July 31, 1999 and 1998 5
Notes to Financial Statements 6 -- 9
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Shareholders
ASYST CORPORATION
We have audited the accompanying balance sheet of Asyst Corporation as of July
31, 1999, and the related statements of operations, stockholders' equity, and
cash flows for the years ended July 31, 1999 and 1998. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based
on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable
basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Asyst Corporation as of July
31, 1999, and the results of its operations and its cash flows for the years
ended July 31, 1999 and 1998, in conformity with generally accepted
accounting principles.
The accompanying financial statements have been prepared assuming that Asyst
Corporation will continue as a going concern. As discussed in Note 4 to the
financial statements, the Company has reported no revenues from operations
which raises substantial doubt about the ability to continue as a going
concern. Management's plans in regard to these matters are also described in
Note 4. The financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
Mantyla McReynolds
Salt Lake City, Utah
September 18, 1999
<PAGE>
ASYST CORPORATION
Balance Sheet
July 31, 1999
ASSETS
Current Assets
Marketable Securities available for sale- Notes 1&5 $90,000
Total Current
Assets 90,000
TOTAL ASSETS $90,000
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Accounts Payable $1,129
Shareholder Loan - Note 2 10,000
Note Payable - Note 5 65,000
Total Current Liabilities 76,129
Stockholders' Equity
Preferred Stock -- 2,000,000 shares authorized having a
par value of $.001; no shares issued and outstanding
Capital Stock -- 50,000,000 shares authorized having a
par value of $.001 per share; 850,000 shares issued
and outstanding 850
Additional Paid-in Capital 300,822
Accumulated Deficit (371,208)
Accumulated comprehensive income 83,407
Total Stockholders' Equity 13,871
TOTAL LIABILITIES & STOCKHOLDERS' EQUITY $90,000
See accompanying notes to financial statements.
<PAGE>
ASYST CORPORATION
Statement of Operations
For the Years Ended July 31, 1999 and 1998
July 31, 1999 July 31, 1998
Revenues -0- $-0-
Operating Expenses 10,510 35,697
Operating Loss (10,510) (35,697)
Other Income
Interest Income 41
Interest Expense (7,650) (920)
Loss Before Income
Taxes (18,160) (36,576)
Current Year Provision for
Income Taxes 248
Net Loss (18,160) (36,824)
Other Comprehensive Income
Unrealized gain(loss) on securities
(net of tax) (61,875) 48,713
Total Comprehensive Income (Loss) (80,035) $11,889
Net Loss per Share $(.03) $(.07)
Weighted Average Shares Outstanding 650,685 515,068
See accompanying notes to financial statements.
<PAGE>
ASYST CORPORATION
Statement of Stockholders' Equity
For the Years Ended July 31, 1999 and 1998
Balance
July 31, 1997 50,000,000 $ 50,000 $240,822 $(316,224) $$(25,402)
1 for 5 split,
May 6, 1998 200,000,000 200,000 (200,000)
500 for 1
Reverse split
May 7, 1998 (249,500,000) (249,500) 249,500
Issued 100,000
shares for loan
origination fee 100,000 100 100
Unrealized gain
on marketable securities 177,157 177,157
Net Loss for the
year ended
July 31, 1998 (36,824) (36,824)
Balance
July 31, 1998 600,000 $ 600 $290,322 $(353,048)$177,157 $115,031
Issued 250,000
shares for fees
and debt
May 18, 1999 250,000 250 10,500 10,750
Unrealized loss
on marketable
securities (93,750) (93,750)
Net Loss
for the year ended
July 31, 1999 (18,160) (18,160)
Balance
July 31, 1999 850,000 $850 $300,822 $(371,208) $83,407 $13,871
See accompanying notes to financial statements.
<PAGE>
ASYST CORPORATION
Statement of Cash Flows
For the Years Ended July 31, 1999 and 1998
July 31, 1999 July 31, 1998
Cash Flows Provided by/(Used for)
Operating Activities
Net Loss $(18,160) $(36,824)
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation -0- 4,395
Issued stock for expenses 10,750 100
Decrease in trade payables -0- (1,458)
Increase (decrease) in interest payable (920) 920
Net Cash Used for Operating Activities (8,330) (32,867)
Cash Flows Provided by/(Used for)
Financing Activities
Increase in loans payable 7,938 29,793
Net Decrease in Cash (392) (3,074)
Beginning Cash Balance 392 3,466
Ending Cash Balance $-0- $392
Supplemental Disclosure of Cash Flow Information
Cash paid during the year for interest $-0- $-0-
Cash paid during the year for franchise/income taxes $-0- $248
See accompanying notes to financial statements.
<PAGE>
ASYST CORPORATION
Notes to Financial Statements
July 31, 1999
NOTE 1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accounting and reporting policies of the Company conform with generally
accepted accounting principles. The following information summarizes the
organization and significant accounting policies of the Company.
Organization
Asyst Corporation [formerly known as Ad Systems, Inc.] incorporated under the
laws of the State of Utah on August 27, 1984. Effective March 31, 1995, the
Corporation sold all of the its assets [net of related liabilities], including
the right to use the name Ad Systems, Inc., to a Colorado-based company. Ad
Systems, Inc. filed Articles of Amendment with the Utah Division of
Corporations and Commercial Code officially changing its name to Asyst
Corporation on July 6, 1995.
Asyst Corporation developed/acquired additional assets over the next
couple of years but in May of 1998, exchanged these assets and technology
rights for 60,000 shares of stock in World Wireless Communications, Inc.
[WWC], see Note 5.
Property and Equipment
Property and equipment are carried at cost and depreciated using accelerated
methods for book and tax purposes, over the useful lives of the related
assets. In May of 1998, the Company sold all property and equipment as part
of an asset purchase. (See Note 5)
Income Taxes
Effective July 1, 1993, the Company adopted the provisions of Statement of
Financial Accounting Standards No. 109 [the Statement], Accounting for Income
Taxes, which is effective for fiscal years beginning after December 15, 1992.
The Statement requires an asset and liability approach for financial
accounting and reporting for income taxes, and the recognition of deferred
tax assets and liabilities for the temporary differences between the financial
reporting bases and tax bases of the Company's assets and liabilities at
enacted tax rates expected to be in effect when such amounts are realized or
settled.
NOTE 1 ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
[continued]
Net Loss Per Common Share
Net loss per common share is based on the weighted-average number of shares
outstanding [650,685 shares as of 7/31/99].
Statement of Cash Flows
For purposes of the statement of cash flows, the Company considers cash on
deposit in the bank to be cash. The Company reports a cash balance of $-0-
at July 31, 1999.
Marketable Securities
Marketable securities are available for sale and are reported in the
balance sheet at fair value. The fair market value of these securities as of
July 31, 1999 is approximately $1.50 per share. The original cost was $6,593
or $0.11 per share. Unrealized gains and losses are reported as a separate
component of stockholders' equity. Realized gains or losses will be included
in income in the period they are realized.
Use of Estimates in Preparation of Financial Statements
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
NOTE 2 PAYABLE TO SHAREHOLDERS
The Company has recorded a liability to a shareholder for expenses incurred
on behalf of the company. Expenses incurred in the current year were $17,768
and $363 in the prior year. The balance due to this shareholder at July 31,
1999 was $10,000. Shareholder loans are unsecured, non-interest bearing and
payable on demand.
NOTE 3 PROPERTY AND EQUIPMENT
Property and equipment were disposed of during the year ended July 31, 1998.
Depreciation expense for the years ended July 31, 1999 and 1998 was $0 and
$4,395, respectively.
NOTE 4 GOING CONCERN
The Company has reported no revenues from operations for the years ended July
31, 1999 and 1998 and has sold its technology. The Company's ability to
achieve a level of profitable operations may impact the Company's ability to
continue as a going concern as it is presently organized and operated.
Resolution of this issue is dependent on the realization of management's
plans. Management is currently seeking a well-capitalized merger candidate
in order to commence operations.
NOTE 5 SALE OF ASSETS/NOTE PAYABLE
In May of 1998, the Company exchanged its assets for 60,000 shares (less than
1% of outstanding shares) of stock in World Wireless Communications, Inc.
[WWC]. These shares are restricted and were not tradable until May or June
of 1999. The market price per share of WWC was $1.50 as of July 31, 1999.
In connection with the sale of assets, the Company executed a note payable to
WWC for $66,429.50. The note bears interest at 10% and is due September 30,
1999. As consideration WWC paid cash and issued stock to settle liabilities
on behalf of the Company. The principal balance was reduced to $65,000 when
an extension payment was made in July, 1999.
NOTE 6 STOCK TRANSACTIONS
In December of 1998, the Board of Directors of the Company resolved to
forward split, five (5) for one (1), the outstanding common shares of the
corporation. This split was to be effective May 6, 1998, one day before a
500 for one reverse split. The net effect of these two splits is a 100 for one
reverse split of common shares outstanding on May 7, 1998. The forward
split was made to prevent giving effect to the large number of fractional shares
originally created in the reverse split. These splits did not affect the par
value of common stock which remains at $.001. The Board of Directors
authorized and directed the officers of the Company to file articles of
amendment to the Articles of Incorporation increasing the authorized common
shares to 50,000,000, at $.001 par value. All disclosures have been restated
to reflect this retroactive adjustment.
NOTE 6 STOCK TRANSACTIONS [continued]
The Company then authorized and directed the issuance of 100,000
post-split common shares to World Wireless Communications, Inc., in
connection with the note payable transaction referenced in Note 5,
effective June 6, 1998.
On May 18, 1999, the Company authorized the issuance of 250,000 shares
of common stock to a shareholder as consideration for services and in
settlement of debts paid by the shareholder on behalf of the Company.
NOTE 7 INCOME TAXES
The Company adopted the provisions of Statement of Financial Accounting
Standards No. 109 [the Statement], Accounting for Income Taxes, as of August
1, 1993. The tax effects of temporary differences that give rise to
significant portions of the deferred tax asset at July 31, 1999 are
summarized below.
Description Balance Tax Rate
Loss carryforward
(expires through 2014) $ (352,190) $ 119,745 34%
Unrealized gain on
marketable securities 83,407 (28,358) 34%
Valuation allowance (91,387)
Deferred tax asset $0
A valuation allowance is required if it is more likely than not that some or
all of the net deferred tax asset will not be realized. An allowance of
$91,387, up $38,098 from $53,289 as of July 31, 1998, has been measured
against the entire net deferred asset balance based on the current financial
position of the Company and the uncertainties discussed in Note 4.
<PAGE>
ASYST CORPORATION
Financial Statements and Independent Auditors' Report
July 31, 1998
ASYST CORPORATION
TABLE OF CONTENTS
Page
Independent Auditors' Report 1
Balance Sheet -- July 31, 1998 2
Statement of Operations for the Year Ended July 31, 1998 3
Statement of Stockholders' Equity for the Year Ended July 31, 1998 4
Statement of Cash Flows for the Year Ended July 31, 1998 5
Notes to Financial Statements 6 -- 9
<PAGE>
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Shareholders
ASYST CORPORATION
We have audited the accompanying balance sheet of Asyst Corporation as of July
31, 1998, and the related statements of operations, stockholders' equity, and
cash flows for the year ended July 31, 1998. These financial statements are
the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Asyst Corporation as of July
31, 1998, and the results of its operations and its cash flows for the year
ended July 31, 1998, in conformity with generally accepted accounting
principles.
The accompanying financial statements have been prepared assuming that Asyst
Corporation will continue as a going concern. As discussed in note 4 to the
financial statements, the Company has reported no revenues from operations
which raises substantial doubt about the ability to continue as a going
concern. Management's plans in regard to these matters are also described in
note 4. The financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
Mantyla, McReynolds and Associates
Salt Lake City, Utah
September 21, 1998, except for information related to Notes 1, 2, 5, 6, and 7
as to which the date is August 31, 1999
<PAGE>
ASYST CORPORATION
Balance Sheet
July 31, 1998
ASSETS
Current Assets
Cash - note 1 $392
Marketable Securities available for sale- notes 1&5 183,750
Total Current Assets 184,142
TOTAL ASSETS $184,142
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Accounts Payable $1,129
Interest Payable 920
Shareholder loan 632
Note Payable - note 5 66,430
Total Current Liabilities 69,111
Stockholders' Equity
Preferred Stock -- 2,000,000 shares authorized having a
par value of $.001; no shares issued and outstanding
Capital Stock -- 50,000,000 shares authorized having a
par value of $.001 per share; 600,000 shares issued
and outstanding 600
Additional Paid-in Capital 290,322
Accumulated Deficit (353,048)
Accumulated comprehensive income 177,157
Total Stockholders' Equity 115,031
TOTAL LIABILITIES & STOCKHOLDERS' EQUITY $184,142
[/TABLE]
See accompanying notes to financial statements.
ASYST CORPORATION
Statement of Operations
For the Year Ended July 31, 1998
Revenues $-0-
Operating Expenses 35,697
Operating Loss (35,697)
Other Income
Interest Income 41
Interest Expense (920)
Net Loss Before Income Taxes (36,576)
Current Year Provision for Income Taxes 248
Net Loss (36,824)
Other Comprehensive Income
Unrealized gain on securities (net of tax)48,713
Total Comprehensive Income 11,889
Net Loss per Share $(.07)
Weighted Average Shares Outstanding 515,068
[/TABLE]
See accompanying notes to financial statements.<PAGE>
ASYST CORPORATION
Statement of Stockholders' Equity
For the Year Ended July 31, 1998
Common Common Additional Accumulated Unreal Net
Shares Stock Paid-in Deficit Gain/Loss Stockholders
Capital Equity
Balance,
July 31, 1997 50,000,000 $ 50,000 $240,822 $(316,224) $ $(25,402)
1 for 5 split,
May 6, 1998 200,000,000 200,000 (200,000)
500 for 1
Reverse split
May 7, 1998 (249,500,000) (249,500)249,500
Issued 100,000
shares for loan
origination fee 100,000 100 100
Unrealized gain on
marketable
securities 177,157 177,157
Net Loss for the
year ended
July 31, 1998 (36,824) (36,824)
Balance,
July 31, 1998 600,000 $ 600 $290,322 $(353,048) $177,157 $115,031
See accompanying notes to financial statements.
ASYST CORPORATION
Statement of Cash Flows
For the Year Ended July 31, 1998
Cash Flows Provided by/(Used for) Operating Activities
Net Loss $(36,824)
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation 4,395
Issued stock for loan origination 100
Decrease in trade payables (1,458)
Increase in interest payable 920
Net Cash Used for Operating Activities(32,867)
Cash Flows Provided by/(Used for) Financing Activities
Increase in loans payable 29,793
Net Decrease in Cash (3,074)
Beginning Cash Balance 3,466
Ending Cash Balance $ 392
Supplemental Disclosure of Cash Flow Information
Cash paid during the year for interest $-0-
Cash paid during the year for franchise/income taxes $248
See accompanying notes to financial statements.
ASYST CORPORATION
Notes to Financial Statements
July 31, 1998
NOTE 1ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accounting and reporting policies of the Company conform with generally
accepted accounting principles. The following information summarizes the
organization and significant accounting policies of the Company.
Organization
Asyst Corporation [formerly known as Ad Systems, Inc.] incorporated under the
laws of the State of Utah on August 27, 1984. Effective March 31, 1995, Asyst
Corporation sold all of the Company's assets [net of related liabilities],
including the right to use the name Ad Systems, Inc., to a Colorado-based
company. Ad Systems, Inc. filed Articles of Amendment with the Utah Division
of Corporations and Commercial Code officially changing its name to Asyst
Corporation on July 6, 1995.
Property and Equipment
Property and equipment are carried at cost and depreciated using accelerated
methods for book and tax purposes, over the useful lives of the related
assets. Company policy limits the capitalization of acquired property and
equipment to items which cost $1,000 or more. Items with a cost of less than
$1,000, and costs of repairs and maintenance, are charged to income as
incurred. In May of 1998, the Company sold all remaining property and
equipment as part of an asset purchase. (See Note 5)
Income Taxes
Effective July 1, 1993, the Company adopted the provisions of Statement of
Financial Accounting Standards No. 109 [the Statement], Accounting for Income
Taxes, which is effective for fiscal years beginning after December 15, 1992.
The Statement requires an asset and liability approach for financial
accounting and reporting for income taxes, and the recognition of deferred tax
assets and liabilities for the temporary differences between the financial
reporting bases and tax bases of the Company's assets and liabilities at
enacted tax rates expected to be in effect when such amounts are realized or
settled.
NOTE 1ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
[continued]
Net Loss Per Common Share
Net loss per common share is based on the weighted-average number of shares
outstanding [515,016 shares].
Statement of Cash Flows
For purposes of the statement of cash flows, the Company considers cash on
deposit in the bank to be cash. The Company reports a cash balance of $392 at
July 31, 1998.
Marketable Securities
Marketable securities are available for sale and are reported in the
balance sheet at fair value. The fair market value of these securities as of
July 31, 1998 is approximately $3.0625 per share but the market price
decreased to approximately $1 in October 1998 and has remained at that level
for some time. Unrealized gains and losses are reported as a separate
component of stockholders' equity. Realized gains or losses will be included
in income in the period they are realized.
Use of Estimates in Preparation of Financial Statements
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
NOTE 2PAYABLE TO SHAREHOLDERS
Two officers and shareholders of the Company have provided consulting services
to the Company and have provided office space for use by the Company in prior
years. The amounts due and owing to the shareholders through the current year
have been settled through a note payable which resulted from the asset
purchase explained in Note 5.
NOTE 2PAYABLE TO SHAREHOLDERS[continued]
The Company has recorded a liability to a shareholder for expenses incurred on
behalf of the company. Expenses incurred in the current year were $363. The
balance due this shareholder at July 31, 1998 was $632. Shareholder loans are
unsecured, non-interest bearing and payable on demand.
NOTE 3PROPERTY AND EQUIPMENT
Property and equipment were disposed of during the year. Current year
depreciation expense through the disposal date totaled $4,395.
NOTE 4GOING CONCERN
The Company has reported no revenues from operations for the year ended July
31, 1998 and has sold its technology. The Company's ability to achieve a
level of profitable operations may impact the Company's ability to continue as
a going concern as it is presently organized and operated. Resolution of this
issue is dependent on the realization of management's plans. Management is
currently seeking a well-capitalized merger candidate in order to commence
operations.
NOTE 5SALE OF ASSETS/NOTE PAYABLE
In May of 1998, the Company exchanged its assets for 60,000 shares (less than
1% of outstanding shares) of stock in World Wireless Communications, Inc.
[WWC]. These shares are restricted and may not be traded until May or June of
1999. The market price per share of WWC was approximately $1 in October,
1998.
In connection with the sale of assets, the Company executed a note payable to
WWC for $66,429.50. The note bears interest at 10% and is payable on demand
after May 8, 1999. As consideration WWC paid cash and issued stock to settle
liabilities on behalf of the Company.
NOTE 6STOCK SPLITS
In December of 1998, the Board of Directors of the Company resolved to forward
split, five (5) for one (1), the outstanding common shares of the
corporation. This split was to be effective May 6, 1998, one day before a 500
for one reverse split. The net effect of these two splits is a 100 for one
reverse split of common shares
NOTE 6STOCK SPLITS[continued]
outstanding on May 7, 1998. The forward split was made to prevent giving
effect to the large number of fractional shares originally created in the
reverse split. These splits did not affect the par value of common stock
which remains at $.001. The Board of Directors authorized and directed the
officers of the Company to file articles of amendment to the Articles of
Incorporation increasing the authorized common shares to 50,000,000, at $.001
par value. All disclosures have been restated to reflect this retroactive
adjustment.
The Company then authorized and directed the issuance of 100,000
post-split common shares to World Wireless Communications, Inc., in connection
with the note payable transaction referenced in Note 5, effective June 6,
1998.
NOTE 7INCOME TAXES
The Company adopted the provisions of Statement of Financial Accounting
Standards No. 109 [the Statement], Accounting for Income Taxes, as of August
1, 1993. The tax effects of temporary differences that give rise to
significant portions of the deferred tax asset at July 31, 1998 are summarized
below.
Description Balance Tax Rate
Loss carryforward
(expires through 2013) $ (334,030) $ 113,522 34%
Unrealized gain on
marketable securities 177,157 (60,233) 34%
Valuation allowance (53,289)
Deferred tax asset $0
A valuation allowance is required if it is more likely than not that some or
all of the net deferred tax asset will not be realized. An allowance has been
measured against the entire deferred asset balance based on the current
financial position of the Company and the uncertainties discussed in Note 4.
PART III
Item 1. Index to Exhibits
2.i Purchase Agreement
2.ii COMPENSATORY BENEFIT CONTRACT
3.i Articles of Incorporation
3.iii By-laws
27 Financial data schedule
SIGNATURES
In accordance with Section 12 of the Securities Exchange
Act of 1934, the registrant caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
ASYST CORPORATION
Date: April 24, 1999 By:/s/ Bob Hall
Bob Hall, President
Exhibit 2.(i)
ASSET PURCHASE AGREEMENT
WORLD WIRELESS COMMUNICATIONS, INC.
ASYST, INC.
TRANSACTION DOCUMENTS
Snow, Christensen & Martineau
10 Exchange Place, Eleventh Floor
Salt Lake City, Utah 84111
Telephone (801)521-9000
David W. Slaughter
April 28, 1997
William E. Chipman, Sr.
VP Mergers & Acquisitions
World Wireless Communications, Inc.,
Re: Letter of Intent for the acquisition of Asyst Corporation
Dear Bill:
We are in receipt of your proposed Letter of Intent dated April 15,
1997, have reviewed the same, and provide you with this alternate letter of
intent which shall serve as our counterproposal relative to the terms and
conditions of World Wireless Communications, Inc.'s (WWC) acquisition of Asyst
Corporation (Asyst). The acquisition of Asyst by WWC would be in the form of a
tax-free merger, the final form of which has not been established as of this
date. It will be accomplished so as to maximize the return to the Asyst
shareholders and also to meet the requirements of WWC and Asyst for their SEC
and tax requirements. The following, terms and conditions will make up the
major points of a formal agreement to be written by WWC's attorney within 10
days of the acceptance of this letter of intent.
Terms and Conditions
1 . In a tax-free exchange, WWC will exchange 30,000 shares of its
common stock for all of the common stock of Asyst, provided, however, that WWC
will Guarantee that at the time of closing, the 30,000 shares of its common
stock will have a fair market value (calculated by multiplying the number
of shares (30,000) BV the average of the ask and bid over-the-counter price
per share as of the date this agreement is signed and Asyst's major shareholders
provide to WWC their irrevocable proxies in favor of the transaction as set
forth in paragraph 5 below) equal to at least $300,000, such that if the fair
market value thereof is less (calculated as set forth above), WWC will add
shares as necessary to bring the fair market value of the WWC shares offered
to $300,000. In addition, the final form of the merger and overall acquisition
transaction shall incorporate such other provisions as may be necessary to
ensure that the interests of the Asyst shareholders are adequately protected.
2. Bob Hall and Gerald Van Mondfrans will enter into consulting
agreements with WWC for which Bob Hall will be paid compensation in the form of
2,500 shares of WWC stock and Gerald Van Mondfrans will be paid compensation in
the form of 300 shares of WWC stock. In addition, WWC will deliver another
2,200 shares of WWC stock to Gerald Van Mondfrans in payment of Asyst's
outstanding rental obligation to him. These agreements will be formalized in
writing), with such additional terms as are mutually agreeable to the parties
before the transaction can be completed.
3. WWC agrees to pay to Asyst's officers at closing, the sum of
$35,000 in cash, to retire Asyst's salary and compensation obligations owed to
Asyst's officers in the approximate total amount of $110,000. To the extent
that the WWC/Asyst merger is consummated on a tax-free basis as contemplated,
Asyst shall procure a release and waiver from its officers for any amounts
owed in excess of the $45,000 (the difference between $45,000 and $55,000
will be paid to the Asyst officers out of Asyst cash on hand).
4. Asyst will permit WWC to market its products during, the time
needed for the transaction to be completed. If any sales are Generated and the
transaction is not completed, Asyst will have to WWC an exclusive sales contract
to market it's products for which Asyst will be paid a reasonable royalty. WWC
will agree to pay a reasonable sales commission to Asyst.
5. Asyst will cause its major shareholders (Bob Hall and Gerald
Van Mondfrans) to deliver to WWC within 5 days of the parties' execution of this
agreement, an irrevocable proxy in a form agreeable to the parties and their
legal counsel, wherein such major shareholders irrevocably appoint WWC their
proxy for voting their interests in any Asyst shareholder meeting called to
consider the transaction and matters related thereto.
6. Failure by WWC to perform within the time periods set forth
herein shall terminate this agreement and excuse any further performance on
Asyst's part.
7. All of the above is subject to the satisfactory due diligence of
both parties and the approval of their respective boards of directors and
shareholders.
8. The closing of the tax-free merger will take place as soon as
possible and in all events, within 60 days of the signing of this agreement.
Although the above terms and conditions are not all inclusive they are enough to
to establish a base to which a formal contract can be written. If the above is
accordance with our mutual understanding, Asyst would appreciate an acceptance
below by April 21, 1997.
Very truly yours,
ASYST, CORPORATION
/s/Bob Hall
Bob Hall
President
ACCEPTED AND AGREED TO this 28th day of April, 1997.
WORLD WIRELESS
COMMUNICATIONS, INC.
/s/ William E. Chipman, Sr.
William E. Chipman, Sr.
VP Mergers & Acquisitions
<PAGE>
ASSET PURCHASE AGREEMENT
This AGREEMENT is made and entered into as of May 15, 1998, ("Effective
Date") between World Wireless Communications, Inc., ("WWC" or "Buyer"), a
Nevada corporation with its principal place of business at 150 Wright
Brothers Drive, Suite 570, Salt Lake City, Utah 84116, and Asyst, Inc.,
("Asyst" or "Seller"), a Utah corporation with its principal place of
business at 6170 South 380 West, Murray, Utah, 84107
Recitals:
A. Asyst holds certain proprietary and intellectual property rights
in and to certain spread spectrum radio technology which is currently
licensed exclusively to WWC, and which it is willing to sell and convey to
WWC. Together with certain ownership interest in Asyst, in exchange for
certain restricted common stock; in WWC.
B. WWC desires to acquire ownership of the Asyst spread spectrum
radio technology, together with all rights, title and interest in and to all
related intellectual property rights, and, subject to the terms and conditions
herein, is further willing to advance to Asyst certain funds necessary to
permit Asyst to retire certain business debt and to satisfy certain operating
expenses, in consideration of certain stock in Asyst.
NOW, THEREFORE, in consideration of the promises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein, Seller and Buyer hereby agree as follows:
1. Defined Terms
Capitalized terms in this Agreement have the meaning stated below or
defined elsewhere in this Agreement. A reference to a particular Exhibit is
to an Exhibit to this Agreement, and each Exhibit is incorporated into and
made a part of this Agreement by that reference.
1.1 Build Environment shall mean any and all devices, codes
(source and binary), Documentation, media or development tools (including
compilers, workbenches, tools, and higher-level or proprietary languages) that
have been used in, or are useful for, the development, maintenance or
implementation of the Products and Related Technology acquired by WWC
hereunder
1.2 Closing and Closing Date shall mean the event and date upon
which this Agreement is executed by the parties, following any and
all necessary stockholder approval, and the date upon which or, if
specifically stated, after which all documents and payments
identified herein shall be delivered and exchanged between the
parties set forth below.
1.3 Documentation shall mean all engineering notebooks,
schematics, diagrams, software, user manuals and other written materials or
machine-readable text and/or graphics that relate to the Products conveyed
hereby and are either owned currently by Seller, and all marketing collateral
relating, in any fashion to the Products, including, to the extent they may
exist, (i) all sales and sales promotional data, (ii) advertising materials,
(iii) all customer lists, registration databases, technical support databases
and other related files and databases pertaining to said Products.
Unless otherwise agreed between the parties, database lists shall be
furnished in a delimited ASCII format.
1.4 Intellectual Property shall mean all marks, copyrights
and trade secrets, proprietary information, processes and formulae and all
other intellectual property rights of any kind or nature in the Products,
including, all Documentation and all Related Technology.
1.5 Products shall mean all tangible and intangible product,
including all components, hardware and programming software, comprising that
certain spread spectrum radio commonly referred to by the Company as the SRL-
100 Spread Spectrum Transceiver." Product Code shall mean the computer
programming code (binary and source) for the Products or any circuit or
programmable processor included or incorporated into the Products.
1.6 Purchased Assets shall mean Products, all inventory of completed
Products and components, the Build Environment, Related Technology,
Documentation, and Intellectual Property, all as defined in this section 1,
together with all additional assets and tangible property identified as
Exhibit "A".
<PAGE>
1.7 Related Technologv shall mean, to the extent owned by Seller or
comprised of Third-Party Materials licensed to Seller as of the Closing, all
existing technology authored, discovered, developed, made perfected, improved,
designed, engineered, devised, acquired, produced, conceived or first reduced
to practice by Seller, or any of its employees or contractors in the scope of
their employment or in association with them for the development of the
Products, that is necessary to the performance by the Products of their
intended functions or purposes, whether tangible or intangible, in any stage
of development. Related Technology shall include, without limiting or
expanding the foregoing, (a) any existing enhancements, designs, technology,
improvements, inventions, works of authorship, trade secrets, formulas,
processes, routines, subroutines, techniques, concepts, methods, ideas,
algorithms, source code, object code, flow charts, diagrams, circuit drawings
and annotations, programmers' notes, work papers, and work product; (b) any
existing documentation, development tools and associated documentation; and
(c) all rights of any kind in or to any of the foregoing, including, without
limitation, all proprietary rights and trade secrets and copyrights (whether
pending, applied for or issued) for the Products, regardless of whether any
or all of the foregoing constitutes copyrightable subject matter.
1.8 Statements or representations made "to the best knowledge and
belief' of 'a party, or terms of similar effect, shall mean to state that
the relevant party shall have conducted, or caused is officers, employees or
agents to conduct, an investigation within its own company as may be
reasonable and prudent under the circumstances and that, after such
investigation, no facts have come to the attention of the relevant party that
would cause the relevant party to reasonably conclude that the facts as to
which such best knowledge and belief are asserted contain any material
misstatement or omission. The obligation to investigate shall not require the
relevant party to inquire beyond its own current employees or its existing
company files and records.
2. Sale of Assets and Stock
2.1 Assets To Be Transferred. Effective upon the Closing Date, Seller
shall sell, assign and transfer to Buyer, and Buyer shall purchase from
Seller all of Seller's right, title and interest in and to all Purchased
Assets as defined above.
2.2 Instruments of Conveyance. In order to effectuate the sale,
assignment, transfer and conveyance contemplated by this Section 2,
Sellers will execute and deliver at the Closing, and thereafter as may be
reasonably required, dated as of the Closing Date' as defined in section 5
below, (1) a Bill of Sale and assignment in form attached at Exhibit "B" and
(2)all other documents reasonably necessary to vest in or confirm to WWC good
and marketable title to the Purchased Assets and to transfer to Buyer
possession and use of the Purchased Assets.
3. Consideration for Purchase
3.1 Purchase Price. In consideration for and as the "Purchase Price"
of Seller's transfer and sale to Buyer of the Purchased Assets WWC shall and
does hereby transfer and convey to Asyst shares of restricted common stock of
WWC to be held or distributed as Asyst's directors may determine to be
appropriate.
3.1.1 It is acknowledged by both parties that THE SHARES OF WORLD
WIRELESS STOCK CONVEYED IN CONNECTION HEREWITH WILL NOT HAVE NOT
BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND NO SALE OR DISPOSITION
THEREOF MAY BE MADE WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED
THERETO OR AN OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO
WORLD
WIRELESS COMMUNICATIONS, INC., THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER
THE ACT OR RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND
EXCHANGE
COMMISSION.
3.2 Additional Agreement to Loan Funds. In addition to the
foregoing, WWC has agreed to loan to Asyst up to 563,000 to retire certain
business debt and to satisfy certain operating expenses, as the parties may
agree. Asyst shall execute an unsecured promissory note, in form attached at
Exhibit "E" under which it shall agree to repay said loan on WWC's demand,
which demand shall be withheld until the earlier of (1) registration of the
restricted shares of WWC stock transferred to Asyst hereunder in consideration
for the Purchased Assets
<PAGE>
or (2) expiration of one year from the date of WWC's transfer of said stock
to
Asyst. Interest on funds actually advanced shall accrue at the annual rate of
10% from the date(s) of advance to the date of repayment, with no prepayment
penalty. In exchange for and in consideration of said loan, and in lieu of a
cash loan origination fee, Asyst shall cause to be transferred to WWC 20,000
shares of new common stock of Asyst, restructured after a capital
Reorganization and reverse stock split authorized by Asyst shareholders at a
special shareholders meeting held on May 7, 1998. Although there is neither
an agreement nor a current plan by Asyst to distribute to Asyst shareholders
any portion of the WWC stock to be conveyed to Asyst as provided in
paragraph 3.1 above, in the event that the Asyst Board, in its absolute
discretion, determines at some time to distribute said stock; or proceeds
thereof among shareholders existing at that time, WWC hereby agrees to waive
rights to participate in an) such distribution. The Asyst stock transferred to
WWC shall be restricted stock issued pursuant to SEC Rule 144 and subject to
the limitations and restrictions on resale under that Rule. However, WWC
shall have "piggyback" rights to register said stock; upon registration of
any other Asyst common stock.
4. Limited Assumption of Obligations
4.1 Product-Related Liabilities. Buyer hereby assumes all
liabilities
and obligations relating to the Purchased Assets arising from and after the
Closing Date. As to liabilities and obligations arising, prior to the Closing
Date, Buyer assumes only such liabilities of Seller as relate specifically to
the Purchased Assets and related technology and component inventory, and only
to the extent and upon the express precondition that such liabilities are
disclosed and identified at Exhibit "C" hereto and not otherwise acknowledged
on Exhibit ' C" as satisfied at closing. Obligations listed on said Exhibit
"C" as owing to Bob Hall and Gerald Van Mondfrans will be satisfied at
closing by cash payment of 517,500 to each, from funds loaned to Asyst by
WWC pursuant to paragraph 3.3 above, and by the transfer of 7,900 shares
of restricted WWC common stock; to Gerald Van Mondfrans. Any obligation or
liability not specifically thus disclosed or satisfied at closing shall
remain the sole liability and responsibility of Seller.
4.2 Liabilities Not Assumed. Except for liabilities and obligations
specifically acknowledged and described in paragraph 4.1 above, Buyer does
not assume and shall not be deemed to assume or in any way to be liable
for any liabilities of any sort existing or otherwise incurred by Seller up
to the Closing Date, including specifically but not limited to tax
liabilities,
liability for violations of law, employee liabilities, claims or liabilities
relative to damage or injuries beyond the warranties granted to customers by
Seller' any litigation pending or threatened against Seller, and any
improperly recorded liabilities under generally accepted accounting
principles. All liabilities not expressly assumed by Buyer shall be
paid by the individual or entity responsible therefor, w which individual or
entity further hereby agrees to indemnify and hold Buyer harmless against
all such liabilities, including any liability not expressly assumed which
may be imposed as a matter of law.
5. Closing Date and Delivery
5.1 Closing Date. The closing of this Agreement shall be held at
Buyer's of offices at 1 00 PM. on May 8, 1995, or at such other time and
place upon which the parties hereto shall agree.
5.2 Delivery of Instruments and Pavement. The following are to be
satisfied at the Closing:
(a) Seller shall execute and deliver to Buyer (i) original and
fully-executed bills of sale, together with all other documents
reasonably required to vest in WWC as of the Closing Date all of Seller's
rights, title and interest in and to the Purchased Assets and as may be
required to transfer possession and use of the Purchased Assets; (ii) a true,
correct and complete copy of all software included in the Purchased Assets;
(iii) the originals and all copies of all Documentation; (iv)the originals
and
all copies of all documentation, including specifically but not limited to
all
engineering notes, notebooks, drawings and computer databases; (v) a true and
correct copy of or list describing the complete Build Environment for the
Products; and (vi) true and correct copies of all other documents specified
and required to be delivered by Seller at Closing. If, after the Closing Date,
Seller discovers any of the foregoing items, Seller shall promptly deliver
the same to WWC without risking default under this Agreement.
(b) Buyer shall execute or cause to be executed by all necessary
officers and shall deliver to Seller an original stock certificate
representing the shares of WWC restricted common stock which are part of the
Purchase
<PAGE>
Price hereunder, and shall further issue to Seller a receipt acknowledging
satisfaction and payment in full of all monetary debts and obligations for
advances to Seller of monies and professional services prior to the Closing
Date, in accordance with Section 3.1 hereof.
5.3 Necessary Action After Closing: The parties shall deliver or
cause to be delivered to one another such other instruments and documents as
may be necessary or appropriate to evidence the proper execution, delivery
and performance of this Agreement. If, at any time after the Closing
Date, any further action is necessary or appropriate to carry out the purposes
of this Agreement, the panics shall take all such lawful action. All revenue
received by Seller or otherwise generated in connection with the manufacture
or sale of the Products or Related Technology, including all license fees or
royalties, from whatever source, shall, from and after the Closing Date,
belong
to Buyer, whether or not formal assignments of contracts under or in
connection with which such revenues arise shall have been effected as of the
date of any such revenue receipt. Any and all payments directed to or
otherwise
received by Seller for sales, fees or other business arising from and after
the
Date of Closing shall thus be promptly transferred and accounted to Buyer.
6. Indemnification.
6.1 Indemnification by Asyst. Asyst and Bob Hall and Gerald Van
Mondfrans, as current of occurs and principal shareholders, shall indemnify,
defend and hold harmless WWC, its successors and assigns, together with the
officers, directors, agents and employees of each, at and any time after the
Closing, from and against any and all demands, claims, actions or causes of
action, assessments, losses, damages, liabilities, costs and expenses,
including reasonable fees and expenses of counsel, other expenses of
investigation, handling, and litigation, and settlement amounts, together
with interest and penalties asserted against, resulting to, imposed upon,
or incurred by WWC and the other persons and entities so indemnified,
directly or indirectly, by reason of, resulting from or arising in connection
with any of the following: (a) any breach by Seller of any representation,
warranty or agreement of Seller contained in or made pursuant to this
Agreement
or any other agreements or instruments to be executed and delivered in
connection with the transactions contemplated hereby; or (b) any Seller
liability not expressly assumed by WWC under section 4 above; (c) any failure
by
the Company to obtain required government, shareholder and contract consents,
any failure to comply with "bulk sales" or similar laws relating to notices to
creditors except for claims associated with those liabilities expressly
assumed by WWC.
6.2 Indemnification by WWC. WWC shall indemnify, defend and hold
harmless Asyst, its successors and assigns, together with the officers,
directors, agents and employees of each, at and any time after the Closing,
from and against any and all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs and expenses, including
reasonable fees and expenses of counsel, other expenses of investigation,
handling, and litigation, and settlement amounts, together with interest and
penalties asserted against, resulting to, imposed upon, or incurred by WWC
and the other persons and entities so indemnified, directly or indirectly, by
reason of, resulting from or arising in connection with any of the following:
(a) any breach of any representation, warranty or agreement of Buyer
contained
in or made pursuant to this Agreement or any other agreements or instruments
to be executed and delivered in connection with the transactions contemplated
hereby; or (b) any of the liabilities or obligations assumed under section 4
above.
6.3 Notice of Claim. The party entitled to indemnification under
this Section 5 (the Claimant") shall promptly deliver to the party liable
for such indemnification (the "Obligor") notice in writing of any claim for
recovery hereunder, specifying in reasonable detail the nature of the
threatened loss or exposure and, if known, the amount or an estimate of the
amount of the liability arising therefrom. The Claimant shall provide to the
Obligor as promptly as practicable thereafter information and documentation
reasonably requested by the Obligor to support and verify the claim asserted,
provided that, in so doing, it may restrict or condition and disclosure in
the interest of preserving privileges of importance in any foreseeable
litigation. There is no contractual limitation on the period within which the
Company may notify WWC of any claim for indemnification. Any notice by WWC
seeking indemnification from the Company or its individual indemnitors must be
made before the end of two years after the Closing Date, provided that there
is
no limitation on the time during which indemnification may be sought or
obtained by WWC for (1) losses based on excluded liabilities, (2) any breach
of any covenant or agreement of future performance of the Company or major
shareholders other than those relative to
<PAGE>
representations and warranties of the parties, and (3) any instance of fraud
or any willful breach by the Company of any provision of the Purchase
Agreement. Furthermore, WWC may seek indemnification for up to five
years from the Closing Date relative to the Company's representations and
warranties relative to the obtaining of shareholder approval of the Purchase
Agreement, the Company's marketable title to the technology and other assets
being sold to WWC, the Company's title to its intellectual property, and
matters relative thereto, the existence or absence of third-party components
in the Company's spread-spectrum digital radio technology, the existence of
third-party interests or marketing rights in systems, any litigation, claim,
action, suit, and the like pending or threatened against the Company,
environmental compliance issues as to the Company, taxes, or brokers or
finders fees.
6.4 Defense. If Obligor assumes the defense or the prosecution of
any Claim, including the employment of counsel, consultants or accountants,
Obligor shall do so at its own cost and expense. The Claimant shall have the
right to employ counsel separate from counsel employed by the Obligor in any
such action and to participate therein, but Claimant alone shall be
responsible for the fees and expenses of such separate counsel. The Claimant
shall have the right to determine and adopt (or, in the case of a proposal by
the Obligor to approve) a settlement of such matter in its reasonable
discretion, except that Claimant need not consent to any settlement that (a)
imposes any nonmonetary obligation or (b) Obligor agrees to pay in full.
Obligor shall not be liable for any settlement effected without its prior
written consent, which shall not be unreasonably withheld. Whether or not the
Obligor elects to defend or prosecute such claims, all parties hereto shall
cooperate in the defense thereof and shall furnish such records, information
and testimony, and attend such conferences, discovery proceedings, hearings,
trials, and appeals as may be reasonably requested in connection therewith.
7. Covenant and Obligation Not to Compete. As part of the inducement to WWC
to enter into this Agreement, and in separate consideration for the Purchase
Price paid or to be paid for the Purchased Assets, Seller and Bob Hall and
Gerald Van Mondfrans, as officers and principal shareholders of Seller
("Principals"), hereby agree as follows:
7.1 Seller and Principals shall not compete with WWC by engaging in
any line of business that involves the manufacture, sale, distribution or
marketing of spread-spectrum radios or related technology or of any product
that is also manufactured, sold, distributed or marketed by WWC, nor shall
Seller and Principals provide services, whether as of officers, directors,
employees or consultants, paid or unpaid, for or with any company or
enterprise which competes with WWC in the manufacture, sale, distribution or
marketing products.
7.2 This obligation not to compete shall have effect in all geographical
regions, states, countries and territories throughout the world from or into
which WWC manufactures, sells, distributes or markets its products, and
remain, in effect for a period of five (5) years from the Closing Date.
7.3 The parties agree that damages resulting from any violation of
this covenant not to compete are difficult to quantify and are thus subject
to agreement of liquidated damages. Thus, in case of a violation of the
above obligation not to compete, any one of Seller or Principals as shall
be in violation hereof shall pay to WWC liquidated damages of $10,000.00.
Should such person, despite receipt of a further written warning letter
from WWC, continue such violation, said person shall pay an additional $95,000
per month during each month that such violation continues. These rights and
obligations are not exclusive and shall not preempt any additional claims or
rights available to WWC, including rights to pursue additional damages and
to seer; court orders requiring discontinuance of the prohibited conduct, all
of which rights are expressly reserved.
8 Representations anti Warranties of Seller Subject only to such
exceptions as may be described in any attached Schedule of
Exceptions at Exhibit "D" and which both refer specifically to the
representations and warranties of this Agreement and which further reasonably
identified the basis for an exception thereto, Seller and Principals, jointly
and severally, make the following representations and warranties to WWC, as
of the Closing Date:
8.l Organization and Standing. Asyst is a corporation duly organized
and existing under the laws of the State of Utah, will be in good standing
under such laws, and has the corporate power and lawful authority to own its
assets and properties and to carry on its business as now conducted
<PAGE>
8.2 Corporate Power and Authority. Asyst has all requisite corporate
power to execute and deliver this Agreement and all related agreements,
assignments and related documents. All action on the part of Asyst, its
officers, directors and stockholders, has been taken, to the extent necessary
for the authorization, execution, delivery and performance of this Agreement
and all related agreements and assignments. When executed and delivered by
Asyst, this Agreement and all related agreements and assignments will
constitute valid and binding obligations of Seller and will be enforceable in
accordance with their respective teens. Neither the execution of this
Agreement and any related agreements and assignments, nor the consummation of
the transactions contemplated hereby, will violate or conflict with any
applicable law, regulation, ordinance, zoning requirement, governmental
restriction, order, judgment or decree applicable to the Seller or the
Purchased Assets, or any other contract or agreement to which the Seller is a
party.
8.3 Title to Tangible Property. WWC shall obtain good and marketable
title to all of the tangible property included in the Purchased Assets,
including all Documentation and related business records of Asyst, free and
clear of all title defects, liens, restrictions, claims, charges, security
interests or other encumbrances of any nature whatsoever, including any
mortgages, leases, chattel mortgages, conditional sales contracts, collateral
security arrangements or other title or interest retention arrangements.
8.4 Title to Intellectual Property. Buyer shall own all
Intellectual Property included in or relating to the Purchased Assets,
including any copyrights, patents, trademarks (registered or existing at
common law) and all trade names associated with the Purchased Assets. The
Documentation is sufficient to identify and support rights to said
Intellectual Property.
8.5 Trade Secret Protection Preserved. To the best of Sellers'
collective knowledge and belief, and except only for valid licenses of the
same to other parties fully disclosed to WWC, the Build Environment and all
trade secrets to the Products and Related Technology have at all times been
maintained in confidence and have been disclosed by Seller only to employees
and consultants having a "need to know" the contents thereof in connection
with the performance of their duties to Seller.
8.6 Personnel Agreements. To the best of Seller's knowledge and
belief, all personnel, including employees, agents, consultants and
contractors, who have contributed to or participated in the conception and
development of the Products and Related Technology or Intellectual Property
on behalf of Seller either have been party to a "work-for-hire" arrangement
or
agreement with Seller that has afforded Seller full, effective and original
ownership of all tangible and intangible property thereby arising, or have
executed appropriate instruments of assignment in favor of Seller as assignee
that have conveyed to Seller full, effective and exclusive ownership of all
tangible and nontangible property thereby arising.
8.7 No Claims. To the best of Seller's knowledge and belief, no
claims are currently being asserted by any person or entity to the use of the
Intellectual Property, and Seller does not know of any valid basis for any
such claim. Setter's use of the Intellectual Property (including any patents
and trademarks) does not, to Seller's best knowledge and belief, infringe on
the rights of any other person. Seller has not granted, transferred or
assigned any right or interest in the Products, the Documentation, the Build
Environment or the Intellectual Property to any person or entity, except as
such has been expressly disclosed to Buyer in any Schedule of Exceptions
hereto.
8.8 Disclosure. No representation, warranty or statement made by
Setter in this Agreement or in any document or certificate furnished or to be
furnished to Buyer pursuant to this Agreement contains or will contain any
untrue statement or omits or will omit to state any fact necessary to make
the statements contained herein or therein not misleading. Seller has
disclosed to Buyer all requested facts, records, documents and financial
statements known or reasonably available to Seller that are material to the
transaction contemplated by this Agreement. Seller is aware of no claims or
threatened claims or lawsuits against it by any person or entity. Furthermore,
Seller has fully disclosed to Buyer and has furnished copies of all known
policies of insurance owned by the Company.
8.9 Tax Matters. Seller has (i) made and shall continue to make
current and timely payment of all applicable taxes required of Seller on or
in connection with any of the Purchased Assets or to Seller's employees.
<PAGE>
Furthermore, Seller is not involved in any dispute with any tax authority nor
has Seller received any notice of any deficiency, audit or other indication
of deficiency from any tax authority.
9. Representations anti Warranties of WWC. WWC represents and warrants to
Sellers as follows.
9.1 Organization and Standing. WWC is a corporation duly organized
and existing under the laws of the State of Nevada and will be in good
standing under such laws; it has the corporate power and lawful authority to
own its assets and properties and to carry on its business as now conducted.
9.2 Corporate Power and Authority. WWC has all requisite corporate
power to execute and deliver this Agreement and all related agreements,
assignments and related documents. All action on the part of WWC, its
officers, directors and stockholders has been taken to the extent necessary
for the authorization, execution, delivery and performance of this Agreement
and all related agreements and assignments. When executed and delivered by
WWC, this Agreement shall be a valid and binding obligation of WWC and will
be enforceable in accordance with its terms.
9.3 Disclosure. No representation, warranty or statement
made by WWC in this Agreement or in any document or certificate furnished or
to
be furnished to Seller pursuant to this Agreement contains or will
contain any untrue statement or omits or will omit to state any fact necessary
to make the statements contained herein, or therein not misleading. WWC has
disclosed to Seller all facts known or reasonably available to WWC that are
material to the transaction contemplated by this Agreement.
9.4 Truth at Closing. All of the representations, warranties and
agreements of Buyer contained in this section 9 shall be true and correct and
in full force and effect on and as of the Closing Date.
10. Conditions to Closing
10.1 Conditions to Seller's Obligations. Seller's obligation to
enter
into the transactions contemplated hereby at the Closing is subject to the
fulfillment as of the Closing Date of the following conditions, any or all of
which may be waived by Seller:
10.l.1 All other agreements and documents contemplated by this
Agreement shall have been executed.
10.1.2 All covenants, agreements and conditions contained in this
Agreement to be performed by, Buyer on or before the Closing Date shall have
been performed or complied with in all respects
10.1.3 Buyer shall have delivered to Sellers a certificate, dated on the
Closing Date and signed by Buyer, stating that all representations and
warranties made by Buyer in this Agreement are true and complete in all
material respects and that there has been no material change in Buyer's
business or financial condition or in Buyer's ability to perform its
obligations under this Agreement, between the date of this Agreement
and the Closing Date.
10.2 Conditions to Buyer's Obligations. The obligation of WWC to
enter into and complete the Closing, is subject, at its option, to the
fulfillment on or prior to the Closing Date of the following conditions, any
or all of which may be waived by Buyer:
10.2.1 All other agreements, assignments and documents contemplated
by this Agreement shall have been executed.
10.2.2 All covenants, agreements and conditions contained in this
Agreement to be performed by Seller on or before the Closing Date shall have
been performed or complied with in all respects.
10.2.3 Seller shall have delivered to Buyer a certificate, dated on
the Closing Date and signed by Seller, stating that all representations and
warranties made by Seller in this Agreement are true and complete all
material respects and that there has been no material change in Seller's
business or financial condition or in its ability to perform its obligations
under this Agreement, between the date of this Agreement and the Closing Date.
<PAGE>
10.2.4 Any and all permits and approvals from any governmental or
regulatory body required for the consummation of the Closing shall have been
obtained, or the waiting period therefor shall have expired, or the right of
the governmental or regulatory body to object to the Closing shall have been
waived in writing.
10.3 Termination Prior to Closing. This Agreement may be terminated
at any time prior to Closing by mutual consent by the parties, by either
party if the Closing has not occurred on or before June 15, 1998, or by
either party if the other party shall fail to perform in any material respect
its agreements contained herein or materially breached any representation,
warranty, agreement or covenant that is not cured with in 10 days after the
party has been notified of the breach.
11. Miscellaneous Covenants and Agreements.
11.1 Expenses of Sale. The parties agree that each of them shall
bear its own direct and indirect expenses incurred in connection with the
negotiations and preparation of this Agreement and the consummation and
performance of the transactions contemplated hereby. All transfer,
documentary, gross receipts, use taxes and similar liabilities, if any,
resulting from the sale, assignment, transfer and delivery hereunder of the
Purchased Assets, and to the extent said liability arises under the laws of
the State of Utah shall be paid by WWC.
11.2 Consulting Services. Bob Hall and Gerald Van Mondfrans have agreed
to provide consulting services to WWC for a period of not to exceed six
months for purposes of transitioning manufacturing and marketing efforts
directed to the Purchased Technology. In consideration for said services, WWC
will convey to Bob Hall 3,300 restricted shares of WWC common stock; and to
Gerald Van Mondfrans 300 restricted shares of WWC common stock. Such
conveyance shall be made at closing.
11.3 Bulk Sales Law. The parties acknowledge that they knowingly are
not complying with any bulk sales laws or similar laws relating to notices to
creditors, which generally has the effect of holding WWC responsible to such
creditors for the liabilities of the Company predating the Closing Date.
However, no bull; sales statutes shall be construed to alter or expand the
parties obligations under this Agreement, between and among themselves,
including specifically limitations on liabilities assumed and agreement and
duty to indemnify against losses and liabilities not expressly assumed.
11.4 Governing Law. This Agreement shall be governed in all respects
by the laws of the State of Utah. Any action or proceeding;, brought be any
party against another arising out of or related to this Agreement shall be
brought in a state or federal court of competent subject matter jurisdiction
located within Salt Lake County, Utah, and each of the parties to this
Agreement consents to the personal jurisdiction of those courts.
11.5 Survival of Representations. Warranties and Covenants. Unless
otherwise specifically indicated, all representations, warranties and
covenants contained herein or made pursuant to this Agreement shall survive
the Closing and shall continue in full force and effect to the extent
necessary to effectuate the purposes of this Agreement.
11.6 Binding Effect. Except as specifically otherwise provided
herein, the provisions of this Agreement shall inure to the benefit of, and
be binding upon, the successors and assigns of the parties hereto.
11.7 Entire Agreement. This Agreement and any ancillary agreements
or other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and no party shall be liable or bound to any other party in any manner
by any representation, warranties or covenants except as specifically set
forth herein. Except as expressly provided herein, neither this Agreement nor
any item hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of
any such amendment, waiver, discharge or termination is sought.
11.8 Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and shall be delivered
personally or mailed by first class mail, postage prepaid addressed as
follows:
<PAGE>
If to WWC:
World Wireless Communications, Inc.
Attn: David L. Singer, President
150 Wright Brothers Drive, Suite 570
Salt Lake City, Utah 84116
With a copy to:
David W. Slaughter, Esq.
Snow, Christensen & Martineau
10 Exchange Place, 11th Floor
Post Office Box 45000
Salt Lake City, Utah 84145-5000
If to Asyst:
Asyst Corp.
Attn: Bob Hall, President
6170 South 180 East
Murray, Utah 84107
With a copy to:
David W. Steffensen, Esq.
2159 South 700 East, Suite 100
Salt Lake City. Utah 84106
11.8 Publicity. No press or publicity releases or announcement
concerning this Agreement or the transactions contemplated hereby shall be
issued without advance approval of the form and substance thereof by Seller
and Buyer
11.9 Confidentiality. The parties shall honor all confidentiality
agreements currently in place between or among them, which agreements survive
any termination of this Agreement.
11.10 Attorney's Fees. In the event of a default, the defaulting
party shall pay all costs and attorney's fees that the non-defaulting party
establishes were reasonably incurred by the non-defaulting party in enforcing
its rights under the terms of this Agreement, regardless of whether or not
suit is filed. Notwithstanding the foregoing, each party shall first give
thirty (30) days notice of any claimed default, specifying the default, and
no such costs and attorney's fees may be charged if the default is
cured or corrected within such thirty (30) day period.
11.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument
11.12 Severability. In the event that any provision of this
Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision, provided that no such severability shall be effective
if it materially changes the economic benefit of this Agreement to any party.
11.13 Injunctive and Equitable Relief. Parties recognize that in the
event of a breach of the terms of this Agreement that damages may not always
be an adequate remedy, and therefore stipulate that injunctive or other
equitable relief shall be available to the non-breaching party.
IN WITNESS WHEREOF, this Agreement is hereby executed as of the date
first above written.
Seller: Buyer:
Asyst, Inc. World Wireless
Communications, Inc.
By:/s/ Bob Hall By:/s/ David Singer
Name: Bob Hall Name: David Singer
Title:President Title: President & CEO
<PAGE>
For purposes of individual undertakings under Sections 7 and 8:
/s/ Bob Hall
/s/ Gerald Van Mondfrans
Asset Purchase and Stock Exchange Agreement
Exhibit A
Asset List
Asyst's "SRL-100 Spread Spectrum Transceiver," and all related technology,
including all Product Code, all inventory of completed Products and
components, the Build Environment, Related Technology, Documentation, and
Intellectual property, all as defined in Section I of the Asset Purchase
Agreement, together with all additional assets and tangible property
identified in the lists and schedules attached hereto.
<PAGE>
Asset Purchase and Stock Exchange Agreement
Exhibit B
BILL OF SALE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which is hereby acknowledged, Asyst, Inc. ("Asyst") hereby sells, grants,
transfers, conveys, assigns and delivers unto World Wireless Communications,
Inc., a Nevada corporation ("WWC"), all of Seller's rights, title and
interest in and to the "Purchased Assets," as such term is defined in the
Asset
Purchase Agreement between Asyst and WWC, dated as of May 15, 1998,
("Agreement"), which assets include all Products, the Build Environment,
Related
Technology, Documentation, and Intellectual Property, all as defined in
section
I of the Agreement. together with all additional assets and tangible property
identified at Exhibit 'A," without reservation.
TO HAVE AND TO HOLD all of the properties, assets and rights granted and
transferred hereby, with the appurtenances thereof, unto WWC, its successors
and assigns forever, to and for their own use and benefit.
For the consideration aforesaid, and to the extent that the same maybe
required to effect the purpose of this Bill of Sale and of the Agreement,
Seller hereby constitutes and appoints WWC, its successors and assigns, the
true and lawful attorney or attorneys of Seller, with full power of
substitution, for Seller and, subject to Seller's prior written consent, in
Seller's name and stead, or otherwise, but on behalf of and for the sole
benefit of WWC, its successors and assigns, to demand and receive from time
to time any and all properties hereby given, granted, bargained, sold,
assigned, transferred, conveyed, set over, confirmed and delivered and give
receipts and releases for and in respect to the same and any part thereof; and
further to enforce said property rights by lawsuit or other legal action if
deemed by WWC to be appropriate.
Seller further covenants that Seller' its successors and assigns, shall
execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered to WWC all such further deeds, bills of sale,
transfers, assignments, conveyances, powers of attorney, or other documents
necessary to convey and confirm unto WWC, its successors and assigns, the
properties hereby granted, sold, assigned, transferred, conveyed and
delivered as WWC, its successors and assigns, shall reasonably require.
All terms not otherwise defined herein shall have the meanings defined
in
the Asset Purchase Agreement above referenced and entered into between WWC
and
Asyst.
IN WITNESS WHEREOF, Asyst has caused this instrument to be executed as
of May 15, 1998.
Asyst, Inc.
By /s/ Bob Hall
Name: Bob Hall
Title:Pres
<PAGE>
Asset Purchase and Stock; Exchange Agreement
Exhibit C
Asyst Liabilities Assumed by WWC
or Satisfied at Closing
The following Asyst Liabilities will be assumed at closing:
1. Stock Transfer Agent costs and fees Unknown
The following Asyst Liabilities assumed by WWC will be paid at closing:
1. Bob Hall - Compensation $17,500.00
2. Gerald Van Mondfrans - Rent $39,500.00
3. Mantyla McRenolds-Audit Expenses/Accounting Services $ 3,167.00
4. David W. Steffensen, P.C. - Attorney $ 3,262.50
<PAGE>
Asset Purchase and Stock Exchange Agreement
Exhibit D
Schedule of Exceptions
The following are specifically excepted from representations and warranties
contained in the Asset Purchase and Stock; Exchange Agreement:
1. As to Section 8.6 entitled "Personnel Agreements," Asyst has not
obtained written "work-for-hire" agreements from Chester Ferry or Jeffery
Anderson, the two persons who were instrumental in developing the Products,
Related Technology and Intellectual Property. However, Asyst has obtained and
has delivered to World Wireless copies of assignments from Mr. Ferry and Mr.
Anderson conveying to Asyst their respective rights in and to the
intellectual property in projects on which they worked for Asyst.
<PAGE>
Asset Purchase and Stock Exchange Agreement
Exhibit E
PROMISSORY NOTE
(Unsecured)
Date: May 8, 1998
FOR VALUE RECEIVED, the undersigned, ASYST, INC., ("Maker") hereby
promises to pay to the order of WORLD WIRELESS COMMUNICATIONS, INC.
("Payee"),
at 150 Wright Brothers Drive, Suite 570, Salt Lake City, Utah 84116,or at
such other place as the Payee may designate in writing, the principal sum of
SIXTY-FIVE THOUSAND AND NO/100 DOLLARS ($65,000.00), in lawful money of the
United States of America, with interest thereon at the rate of Ten Percent
(10.0%) per annum, calculated from the date hereof until paid. Said principal
and all accrued interest hereunder shall be due and payable at Payee's
above-referenced address or at such other place as Payee may designate in
writing, upon demand, which demand shall be withheld for a period of one year
from the date hereof. Interest and principal are payable only to the holder
of this Note.
The principal amount of this Promissory Note, with interest accrued to
date of payment, may be prepaid in whole or in part at any time without
penalty. Any prepayment will be applied first to the payment of accrued and
unpaid interest, with any balance to be applied to reduce the principal. The
original note shall be surrendered upon receipt of full and final payment
hereunder.
In connection herewith, the undersigned has further transferred or
caused to be transferred and conveyed to Payee Twenty Thousand (90,000)
shares of restricted and newly-authorized common stock of Asyst, Inc., and all
rights, title and interest therein,, which Payee has accepted in lieu of
origination fees for the funds advanced.
THE SHARES OF STOCK THUS TENDERED HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND NO SALE OR DISPOSITION THEREOF MAY BE MADE
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF
COUNSEL FOR THE HOLDER, SATISFACTORY TO WORLD WIRELESS
COMMUNICATIONS, INC.,
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A
NO-ACTION
LE11ER FROM THE SECURITIES AND EXCHANGE COMMISSION.
This Promissory Note shall be governed by and construed according to
Utah law. None of the teens or provisions may be waived, altered, modified
or
amended except as Payee, as Holder, may consent in a writing duly signed by
Holder or his authorized agent. The covenants, terms and conditions contained
herein apply and bind the heirs, successors, executors, administrators and
assigns of the parties. If any provision or any word, term, clause or other
part of any provision of this Promissory Note shall be invalid for any
reason, the same shall be ineffective but the remainder of this Promissory
Note shall not be affected and shall remain in full force and effect
The undersigned agree(s) to pay reasonable attorneys' fees, court costs
and all other costs of collection if this Note is placed in the hands of an
attorney for collection, after demand, and hereby waive diligence,
presentment, notice of nonpayment, protest and notice of protest, and agree
that the holder may extend the time for payment and/or take additional
security without releasing anyone liable hereon or without releasing any
security provided herewith.
ASYST. INC.
By /s/ Bob Hall
ASYST INC.
COMPENSATORY BENEFIT CONTRACT
WITH MICHAEL VARDAKIS
THIS Compensatory Benefit Contract is made and entered into by and
between Asyst, Inc., a Utah corporation, and Michael Vardakis as of April 30,
1999 for the purpose of providing compensation in the form of Common Shares
of
the corporation for cash payments made by Vardakis on behalf of, and services
performed by him, on behalf of the corporation during the period from
February
1997 through April 1999.
WHEREAS, Asyst Corporation is a Utah corporation which has conducted no
active business operations since 1995; and
WHEREAS, during that period Michael Vardakis has, with the knowledge and
consent of the Board of Directors of the corporation, expended sums of money
and spent significant time for the purpose of maintaining The Company as a
Utah business corporation in good standing and paying fees and other
assessments incurred in connection with preparing it to file a registration
statement under the Securities Exchange Act of 1934 on Form 10-SB, as
follows: Payment of cash in the sum of $3,500; Entered into an agreement to
pay attorneys fees of an additional $6,000; Spent in excess of 50 hours
performing services for the corporation which, at market value, should be
compensated at not less than $25 per hour for hourly compensation of $1250,
making a total due of at least $10,750.
WHEREAS, the Company is without cash funds with which to provide
compensation for such services or pay the costs and fees discharged and paid
by Vardakis on behalf of the corporation; and
WHEREAS, The Company desires to enter into this Compensatory Benefit
Contract as a means of providing compensation to Vardakis in the form of
Common Shares of the corporation;
NOW, THEREFORE, it is mutually agreed as follows:
1. The cash payments, payment agreements and hourly services
performed for and on behalf of Michael Vardakis on behalf of The Company with
the knowledge and consent of the Board of Directors are valued, at market, at
a sum of not less than $10,750.
2. As compensation for these cash expenditures and services, The
Company agrees to cause to be issued 250,000 of its $.001 par value Common
Shares.
3. The Company Common Shares have no market value, and on the basis
of the Company's audited balance sheet as of December 1, 1999, have negative
net worth. Accordingly, the shares shall be valued, for purposes of this
agreement, at their par value, that is: a sum less than $10,750.
4. Vardakis agrees to compromise all his claims against the
corporation for cash and services in exchange for receipt of the aforesaid
Common Shares.
5. The Common Shares, when issued, shall not have been registered
under the Securities Act of 1933 but shall be issued in reliance on the
exemption from registration provided by § 3(b) of the Act and Rule 701
promulgated thereunder. Accordingly, the shares, when issued, shall be
"restricted securities" as that term is defined by paragraph (a)(3) of SEC
Rule 144 and the certificate(s) representing the shares shall bear a standard
form restrictive legend.
ASYST INC.
By: /s/Robert Hall
/s/ Michael Vardakis
Michael Vardakis
EXHIBIT 3.(i)
ARTICLES OF INCORPORATION
OF
AD SYSTEMS INC.
We, the undersigned natural persons of the age of twenty-one (21) years
or more, acting as incorporators of a corporation under the Utah Business
Corporation Act, adopt the following Articles of Incorporation for such
corporation:
ARTICLE I
NAME
The name of this corporation is: AD SYSTEMS INC.
ARTICLE II
DURATION
The period of its duration is perpetual.
ARTICLE III
PURPOSES
The purpose of the corporation shall be to conduct any and all lawful
business for which corporations may be organized under the Utah Business
Corporation Act as from time to time authorized by its Board of Directors,
including but not limited to:
(a) To engage in the electronics and software industries and
as such to manufacture, hold, purchase, or otherwise acquire, buy and sell,
both retail and wholesale and to generality deal in articles in the
electronics
and software industries, and all other articles of merchandise of
a kindred nature and all such articles commonly supplied or dealt in by
businesses engaged in the electronics and software industry.
(b) To enter in to any lawful arrangement for sharing profits
union of interest, reciprocal association or cooperative association with any
corporation, partnership, individual or other for the carrying on of any
business into any general or limited partnership for the carrying on of any
business.
(c) To engage in any lawful act or activity for which corporations
may be organized under the Utah Business Corporation Act.
In pursuit of these purposes, the corporation shall have all the powers
granted to it by law.
ARTICLE IV
STOCK
The aggregate number of shares which the corporation shall be authorized
to issue is 50,000,000 shares of non-assessable voting common stock having par
value of $0.001 (One-Tenth of One Cent). The capital stock of this
corporation shall be issued as fully paid, and the private property of the
shareholders shall not be liable for the debts, obligations or liabilities of
this Corporation.
ARTICLE V
INITIAL CAPITALIZATION
This corporation shall not commence business until consideration of a
value of at least ONE THOUSAND AND NO/100 DOLLARS ($1,000.00) has been
received for the issuance of shares.
ARTICLE VI
INITIAL OFFICE AND AGENT
The address of this corporation's initial registered office and the name
of its initial registered agent at such address is:
GERALD A. VAN MONDFRANS
9500 South 500 West
Suite #212
Sandy, Utah 84070
ARTICLE VII
DIRECTORS
The number of Directors constituting the initial Board of Directors of
this corporation is three (3). The names and addresses of persons who are to
serve as Directors until the first annual meeting of stockholders, or until
their successors are elected and qualify, are:
Name Address
Gerald A. Van Mondfrans 2944 East Manor Crest Court,
Salt Lake City, Utah 84121
Bob Hall 5435 Dunbarton Drive
Salt Lake City, Utah 84107
Boyd N. Hales 1432 East Hills Circle
Bountiful, Utah 84010
ARTICLE VIII
INCORPORATORS
The name and address of each incorporator is:
Name Address
Gerald A. Van Mondfrans 2944 East Manor Crest Court,
Salt Lake City, Utah 84121
Bob Hall 5435 Dunbarton Drive,
Salt Lake City, Utah 84107
Boyd N. Hales 1432 East Hills Circle
Bountiful, Utah 84010
ARTICLE IX
PRE-EMPTIVE RIGHTS
The shareholders of this corporation shall have no preemptive rights to
acquire any unissued shares of this corporation.
ARTICLE X
MEETINGS OF SHAREHOLDERS
At any meeting of the shareholders, a majority of the shares entitled to
vote, represented in person or by proxy, shall constitute a quorum and, if a
quorum is present, the affirmative vote of a majority of the shares
represented at the meeting and entitled to vote on the subject matter shall be
the act of the shareholders, unless the vote of a greater number of voting by
classes is required by law, by these Articles of Incorporation, or by the
By-Laws.
ARTICLE XI
INTERNAL AFFAIRS
The internal affairs and operation of this corporation shall be
governed by the By-Laws.
ARTICLE XII
INITIAL OFFICERS
The initial officers of the corporation are:
Name Address Position
Gerald A. Van Mondfrans 2944 East Manor Crest Court President &
Salt Lake City, Utah 84121 Treasurer
Bob Hall 5435 Dunbarton Drive Vice
Salt Lake City, Utah 84107 President
Boyd N. Hales 1432 East Hills Circle Secretary
Bountiful, Utah 84010
DATED this 22nd day of August, 1984.
/s/Gerald A. Van Mondfrans
INCORPORATOR
/s/Bob Hall
INCORPORATOR
/s/Boyd N Hales
INCORPORATOR
STATE OF UTAH
COUNTY OF SALT LAKE
I, RICK J. SUTHERLAND, a Notary Public, hereby certify that on the 22nd day of
August, 1984, Gerald A. Van Mondfrans, Bob Hall and Boyd N. Hales personally
appeared before me, who, being by me first duly sworn, severally declared that
they are the persons who signed the foregoing document as incorporators and
that the statements therein contained are true.
DATED this 22nd day of August, 1984
/s/Rick J. Sutherland
Notary
Public
Residing at: Salt Lake City, Utah
My Commission Expires:
4-27-87
BYLAWS
OF
AD SYSTEMS INC.
ARTICLE I
Office
Section 1.1 office. The Corporation shall maintain a principal office in the
State of Utah, as required by law. The corporation may have such other
offices, either within or without the State of Utah, as the Board of Directors
may designate, or as the business of the corporation may require from time to
time. The location and address of the principal office of the corporation may
be changed from time to time by the Board of Directors.
ARTICLE II
Shareholders' Meeting
Section 2.1 Annual Meetings. The annual meeting of the shareholders of the
Corporation shall be held at such place within or without the State of Utah as
shall be set forth in compliance with these Bylaws. The meeting shall be held
on the first Monday in October of each year, beginning with the year 1984, at
10:00 O'clock a.m. If such day is a legal holiday, the meeting shall be on the
next business day. This meeting shall be for the election of directors and
for the transaction of such other business as may properly come before it.
Section 2.2 Special Meetings. Special meetings of shareholders, other than
those regulated by statute, may be called at any time by the President, or a
majority of the directors, and must be called by the President upon written
request of the holders of not less than 10% of the issued and outstanding
shares entitled to vote at such special meeting. Written notice of such
meeting stating the place, the date and hour of the meeting, the purpose or
purposes for which it is called, and the name of the person by whom or at
whose direction the meeting is called shall be given. The notice shall be
given to each shareholder of record in the same manner as notice of the annual
meeting. No business other than that specified in the notice of meeting shall
be transacted at any such special meeting.
Section 2.3 Notice of Shareholders' Meetings. The Secretary shall give
written notice stating the place, day and hour of the meeting, and in the case
of a special meeting the purpose or purposes for which the meeting is called,
which shall be delivered not less than ten or more than fifty days before the
day of the meeting, either personally or by mail to each shareholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed to
be delivered when deposited in the United States mail addressed to the
shareholder at his address as it appears on the books of the Corporation, with
postage thereon prepaid.
Section 2.4 Place of Meeting. The Board of Directors may designate any place,
either within of without the State of Utah, as the place of meeting for any
annual meeting or for any special meeting called by the Board of Directors.
If no designation is made, or if a special meeting is otherwise called,
the place of meeting shall be the principal office of the Corporation.
Section 2.5 Record Date. The Board of Directors may fix a date not less
than ten nor more than fifty days prior to any meeting as the record date for
the purpose of determining shareholders entitled to notice of and to vote
at such meetings of the shareholders. The transfer books may be closed by the
Board of Directors for a stated period not to exceed fifty days for the
purpose of determining shareholders entitled to receive payment of any
dividend, or in order to make a determination of shareholders for
any other purpose.
Section 2.6 Quorum. A majority of the outstanding shares of the Corporation
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of shareholders. If less than a majority of the outstanding
shares are represented at a meeting, a majority of the shares so represented
may adjourn the meeting from time to time without further notice, At a meeting
resumed after any such adjournment at which a quorum shall be present or
represented, any business may be transacted which might have been transacted
at the meeting as originally noticed. The shareholders present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of shareholders in such number that less than a
quorum remain.
Section 2.7 Voting. A holder of an outstanding share entitled to vote at a
meeting may vote at such meeting in person or by proxy. Except as may
otherwise be provided in the Articles of Incorporation, every shareholder
shall be entitled to one vote for each share standing in his name on the
record of shareholders. Except as herein, or in the Articles of Incorporation
otherwise provided, all corporate action shall be determined by a majority of
the votes cast at a meeting of shareholders by the holders of shares entitled
to vote thereon.
Section 2.8 Proxies. At all meetings of shareholders, a shareholder may
vote in person or by proxy executed in writing by the shareholder or by his
duly authorized attorney in fact. Such proxy shall be filed with the
secretary
of the Corporation before or at the time of the meeting. No proxy
shall be valid after eleven months from the date of its execution, unless
otherwise provided in the proxy.
Section 2.9 Informal Action by Shareholders. Any action required to be taken
at a meeting of the shareholders, or any action which may be taken at a
meeting of the shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
shareholders entitled to voted with respect to the subject matter thereof.
ARTICLE III
Board of Directors
Section 3.1 General Powers. The business and affairs of the Corporation shall
be managed by its Board of Directors. The Board of Directors may adopt such
rules and regulations for the conduct of their meetings and the management of
the Corporation as they deem proper.
Section 3.2 Number, Tenure, and Qualifications. The number of directors for
the initial Board of Directors of the Corporation shall be three (3). Each
director shall hold office until the next annual meeting of shareholders and
until his successor shall have been elected and qualified. Directors need
not be residents of the State of Utah or shareholders of the Corporation. The
number of directors may be changed by a subsequent resolution adopted by the
Board of Directors, provided, however, that the total number of directors
shall not exceed nine (9).
Section 3.3 Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this Bylaw, immediately following
after and at the same place as the annual meeting of shareholders. The Board
of Directors may provide, by resolution, the time and place for the holding of
additional regular meetings without other notice than such resolution.
Section 3.4 Special Meetings. Special meetings of the Board of Directors may
be called by order of the Chairman of the Board, the President, or by
one-third
of the directors. The Secretary shall give notice of the time,
place, and purpose or purposes of each special meeting by mailing the same at
least two days before the meeting or by telephoning or telegraphing the same
at least one day before the meeting to each director.
Section 3.5 Quorum. A majority of the members of the Board of Directors shall
constitute a quorum for the transaction of business, but less than a quorum
may adjourn any meeting from time to time until a quorum shall be present,
whereupon the meeting may be held, as adjourned, without further notice. At
any meeting at which every director shall be present, even though without any
notice, any business may be transacted.
Section 3.6 Manner of Acting. At all meetings of the Board of Directors, each
director shall have one vote. The act of a majority present at a meeting
shall be the act of the Board of Directors, provided a quorum is present.
Any action required to be taken or which may be taken at a meeting of the
directors may be taken without a meeting if a consent in writing setting forth
the action so taken shall be signed by all the directors. The directors may
conduct a meeting by means of a conference telephone or any similar
communications equipment by which all persons participating in the meeting can
hear each other.
section 3.7 Vacancies. A vacancy in the Board of Directors shall be deemed to
exist in case of death, resignation or removal of any director, or if the
authorized number of directors be increased, or if the shareholders fail at
any
meeting of shareholders at which any director is to be elected, to
elect the full authorized number to be elected at that meeting.
Section 3.8 Removals. Directors may be removed at any time, by a vote of the
shareholders holding a majority of the shares issued and outstanding and
entitled to vote. Such vacancy shall be filled by the directors then
in office, though less than a quorum, to hold office until the next
annual meeting or until his successor is duly elected and qualified, except
that any directorship to be filled by reason of removal by the shareholders
may be filled by election, by the shareholders, at the meeting at which the
director is removed. No reduction of the authorized number of directors
shall have the effect of removing any director prior to the expiration of his
term of office.
Section 3.9 Resignations. A director may resign at any time by delivering
written notification thereof to the Pres4.dent or Secretary of the
Corporation. Such resignation shall become effective upon its
acceptance by the Board of Directors; provided, however, that if the Board of
Directors has not acted thereon within ten days from the date of its delivery,
the resignation shall upon the tenth day be deemed accepted.
Section 3.10 Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
taken unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as the Secretary of the meeting before the adjournment thereof or shall
forward such dissent by registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
Section 3.11 Compensation. By resolution of the Board of Directors, the
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors, and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefore.
Section 3.12 Emergency Power. When, due to a national disaster or death, a
majority of the directors are incapacitated or otherwise unable to attend the
meetings and function as directors, the remaining members of the Board of
Directors shall have all the powers necessary to function as a complete Board
and, for the purpose of doing business and filling vacancies, shall constitute
a quorum until such time as all directors can attend or vacancies can be
filled pursuant to these Bylaws.
Section 3.13 Chairman. The Board of Directors may elect from its own number a
Chairman of the Board, who shall preside at all meetings of the Board of
Directors, and shall perform such other duties as may be prescribed from time
to time by the Board of Directors.
ARTICLE IV
officers
Section 4.1 Number. The officers of the Corporation shall be a President, one
or more Vice Presidents, a Secretary, and a Treasurer, each of whom shall be
elected by a majority of the Board of Directors. Such other officers and
assistant officers as may be deemed necessary may be elected or appointed by
the Board of Directors. In its discretion, the Board of Directors may leave
unfilled for any such period as it may determine, any offices except those of
President and Secretary. Any of the offices may be held by the same person,
except the offices of President and Secretary. Officers may or may not be
directors or shareholders of the Corporation.
Section 4.2 Election and Term of Office. The officers of the Corporation are
to be elected by the Board of Directors at the first meeting of the Board of
Directors held after each annual meeting of the shareholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as convenient. Each officer shall hold office until
his successor shall have been duly elected and shall have qualified or until
his death or until he shall resign or shall have been removed in the manner
hereinafter provided.
Section 4.3 Resignations. Any officer may resign at any time by delivering a
written resignation either to the President or to the Secretary. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
Section 4.4 Removal. Any officer or agent may be removed by the Board of
Directors whenever in its judgment, the best interests of the Corporation will
be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment of an
officer or agent shall not of itself create contract rights. Any such removal
shall require a majority vote of the Board of Directors, exclusive of the
officer in question if he is also a director.
Section 4.5 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, or if a new office shall be created,
may be filled by the Board of Directors for the unexpired portion of the term.
Section 4.6 President. The President shall be the chief executive and
administrative officer of the Corporation. He shall preside at all meetings
of the shareholders and, in the absence of the Chairman of the Board, at
meetings of the Board of Directors. He shall exercise such duties as
customarily pertain to the office of President and shall have general and
active supervision over the property, business, and affairs of the
Corporation and over its several officers. He may appoint officers, agents,
or
employees other than those appointed by the Board of Directors. He may sign,
execute and deliver in the name of the Corporation, powers of attorney,
contracts, bonds, and other obligations and shall perform such other duties as
may be prescribed from time to time by the Board of Directors or by the
Bylaws.
Section 4.7 Vice President. The Vice Presidents shall have such powers and
perform such duties as may be assigned to them by the Board of Directors or
the President. In the absence or disability of the President, the Vice
President designated by the Board or the President shall perform the
duties and exercise the powers of the President. In the event there is
more than one Vice President and the Board of Directors or the President has
not designated which Vice President is to act as President, then the Vice
President which has the longest tenure with the company shall act as
President.
A Vice President may sign and execute contracts and other obligations
pertaining
to the regular course of such duties as may be assigned to him in accordance
with these Bylaws.
Section 4.8 Secretary. The Secretary shall keep the minutes of all meetings
of the shareholders and of the Board of Directors and to the extent ordered by
the Board of Directors or the President, the minutes of meetings of all
committees. He shall cause notice to be given of meetings of shareholders, of
the Board of Directors, and of any committee appointed by the .Board. He
shall have custody of the corporate seal and general charge of the records,
documents, and papers of the Corporation not pertaining to the performance of
the duties vested in other officers, which shall at all reasonable times be
open to the examination of any director. He may sign or execute contracts
with the President or a Vice President thereunto authorized in the name of the
company and affix the seal of the Corporation thereto. He shall perform such
other duties as may be prescribed from time to time by the Board of Directors
or by the Bylaws. He shall be sworn to the faithful discharge of his duties.
Assistant Secretaries shall assist the Secretary and keep and record such
minutes of meetings as shall be directed by the Board of Directors.
Section 4.9 Treasurer. The Treasurer shall have general custody of the
collection- and disbursement of funds of the Corporation. He shall endorse on
behalf of the Corporation for collection checks, notes, and other obligations,
and shall deposit the same to the credit of the Corporation in such bank or
banks or depositories as the Board of Directors may designate. He may sign,
with the President, or such other persons as may be designated for the purpose
by the Board of Directors, all bills of exchange or promissory notes of the
Corporation. He shall enter or cause to be entered regularly in the books of
the Corporation full and accurate accounts of all monies received and paid by
him on account of the Corporation; shall at all reasonable times exhibit his
books and accounts to any director of the Corporation upon application at the
office of the Corporation during business hours; and, whenever required by the
Board of Directors or the President, shall render a statement of his
accounts.
He shall perform such other duties as may be prescribed from time to time
by the Board of Directors or by the Bylaws.
Section 4.10 General Manager. The Board of Directors may employ and appoint a
General manager who may, or may not, be one of the officers or directors of
the Corporation. If employed by the Board of Directors, he shall be the chief
operating officer of the Corporation and, subject to the directions of the
Board of Directors, shall have general charge of the business operations of
the Corporation and general supervision over its employees and agents. He
shall have the exclusive management of the business of the Corporation and of
all of its dealings, but at all times subject to the control of the Board of
Directors. Subject to the approval of the Board of Directors or the executive
committee, he shall employ all employees of the Corporation, or delegate such
employment to subordinate officers, and shall have authority to discharge any
person so employed. He shall make a report to the President and directors
quarterly, or more often if required to do so, setting forth the results of
the operations under his charge, together with suggestions looking to the
improvement and betterment of the condition of the Corporation, and to
perform such other duties as the Board of Directors shall require.
Section 4.11 Other Officers. Other officers shall perform such duties and
have such powers as may be assigned to them by the Board of Directors.
Section 4.12 Salaries. The salaries or other compensation of the
officers of the Corporation shall be fixed from time to time by the
Board of Directors except that the Board of Directors may delegate to any
person or group of persons the power to fix the salaries or other compensation
of any subordinate officer or agents. No officer shall be prevented from
receiving any such salary or compensation by reason of the fact that
he is also a director of the Corporation.
Section 4.13 Surety Bonds. In case the Board of Director shall so require,
any officer or agent of the Corporation shall execute to the Corporation a
bond in such sums and with such surety or sureties as the Board of Directors
may direct, conditioned upon the faithful performance of his duties to the
Corporation, including responsibility for negligence and for the accounting
for all property, monies or securities of the Corporation which may come into
his hands or under his control.
ARTICLE V
Committees
Section 5.1 Executive Committee. The Board of Directors may appoint
from among its members an Executive Committee of not less than two nor
more than seven members, one of whom shall be the President, and shall
designate one or more of its members as alternates to serve as a member or
members of the Executive Committee in the absence of a regular member or
members. The Board of Directors reserves to itself alone the power to declare
dividends, issue stock, recommend to shareholders any action requiring their
approval, change the membership of any committee at any time, fill vacancies
therein, and discharge any committee either with or without cause at any
time.
Subject to the foregoing limitations, the Executive Committee shall possess
and
exercise all other powers of the Board of Directors during the intervals
between
meetings.
Section 5.2 Other Committees. The Board of Directors may also appoint from
among its own members such other committees as the Board may determine, which
shall in each case consist of not less than two directors, which shall have
such powers and duties as shall from time to time be prescribed by the Board.
The President shall be a member ex officio of each committee appointed by the
Board of Directors. A majority of the members of any committee may fix its
rules of procedure.
ARTICLE VI
Contracts, Loans, Checks and Deposits
Section 6.1 Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
Section 6.2 Loans. No loans or advances shall be contracted on behalf of the
Corporation, no negotiable paper or other evidence of its obligation under any
loan or advance shall be issued in its name, and no property of the
corporation
shall be mortgaged, pledged, hypothecated or transferred as security for the
payment of any loan, advance, indebtedness or liability of the Corporation
unless and except as authorized by the Board of Directors. Any such
authorization may be general or confined to specific instances.
Section 6.3 Deposits. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board of Directors may
select, or as may be selected by any officer or agent authorized to do so by
the Board of Directors.
Section 6.4 Checks and Drafts. All notes, drafts, acceptances, checks,
endorsements and evidences of indebtedness of the Corporation shall be signed
by such officer or officers or such agent or agents of the Corporation and in
such manner as the Board of Directors from time to time may determine.
Endorsements for deposit to the credit of the Corporation in any of
its duly authorized depositories shall be made in such manner as the Board of
Directors from time to time may determine.
Section 6.5 Bonds and Debentures. Every bond or debenture issued by the
Corporation shall be evidenced by an appropriate instrument which shall be
signed by the President or a Vice President and by the Treasurer or the
Secretary, and sealed with the seal of the Corporation. The seal may be
facsimile, engraved or printed. Where such bond or debenture is
authenticated with the manual signature of an authorized officer of the
Corporation or other trustee designated by the indenture of trust or other
agreement under which such security is issued, the signature of any of the
Corporation's officers named thereon may be facsimile. In case any officer
who signed or whose facsimile signature has been used on any such bond or
debenture, shall cease to be an officer of the Corporation for any reason
before the same has been delivered by the Corporation, such bond or debenture
may nevertheless be adopted by the Corporation and issued and delivered as
though the person who signed it or whose facsimile signature has been used
thereon had not ceased to be such officer.
ARTICLE VII
Capital Stock
Section 7.1 Certificate of Share. The shares of the Corporation shall be
represented by certificates prepared by the Board of Directors and signed by
the President or the Vice President, and by the Secretary, or an Assistant
Secretary, and sealed with the seal of the Corporation or a facsimile. The
signatures of such officers upon a certificate may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar
other than the Corporation itself or one of its employees. All certificates
for shares shall be consecutively numbered or otherwise identified. The name
and address of the person to whom the shares represented thereby are issued,
with the number of shares and date of issue, shall be entered on the stock
transfer books of the Corporation. All certificates surrendered to the
Corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificate for a like number of shares shall have
been surrendered and canceled, except that in case of a lost, destroyed or
mutilated certificate a new one may be issued therefore upon such terms and
indemnity to the Corporation as the Board of Directors may prescribe.
Section 7.2 Transfer of Shares. Transfer of shares of the Corporation shall
be made on the stock transfer bonds of the Corporation at the request of the
holder of record thereof or by his legal representative, who shall furnish
proper evidence of authority to transfer, and who shall surrender for
cancellation the outstanding certificates for such shares. The person in
whose name shares stand on the books of the Corporation shall be deemed by the
Corporation to be the owner thereof for all purposes.
Section 7.3 Transfer Agent and Registrar. The Board of Directors shall have
power to appoint one or more transfer agents and registrars for the transfer
and registration of certificates of stock of any class, and may require that
stock certificates shall be countersigned and registered by one or more of
such transfer agents and registrars.
Section 7.4 Lost or Destroyed Certificates. The Corporation may issue a new
certificate to replace any certificate theretofore issued by it alleged to
have been lost or destroyed. The Board of Directors may require the owner of
such a certificate or his legal representatives to give the Corporation a bond
in such sum and with such sureties as the Board of Directors may direct to
indemnify the Corporation and its transfer agents and registrars, if any,
against claims that may be made on account of the issuance of such new
certificates. A new certificate may be issued without requiring any bond.
Section 7.5 Consideration for Shares. The capital stock of the Corporation
shall be issued for such consideration, but not less than the par value
thereof, as shall be fixed from time to time by the Board of Directors.
In the absence of fraud, the determination of the Board of Directors as to the
value of any property or services received in full or partial payment of
shares shall be conclusive.
Section 7.6 Registered Shareholders. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder
thereof in fact, and shall not be bound to recognize any equitable or other
claim to or on behalf of the Corporation. Such holder of record shall have
any and all of the rights and powers incident to the ownership of such stock
at any meeting, and shall have power and authority to execute and deliver
proxies and consents on behalf of the Corporation in connection with the
exercise by the Corporation of the rights and powers incident to the ownership
of such stock. The Board of Directors, from time to time, may confer like
powers upon any other person or persons.
ARTICLE VIII Indemnification
Section 8.1 Indemnification. No officer or director shall be personally
liable for any obligations arising out of any acts or conduct of said officer
or director performed for or on behalf of the Corporation. The Corporation
shall and does hereby indemnify and hold harmless each person and his heirs
and administrators who shall serve at any time hereafter as a director or
officer of the Corporation from and against any and all claims, judgments and
liabilities to which such person shall become subject by reason of his having
heretofore or hereafter been a director or officer of the corporation, or by
reason of any action alleged to have been heretofore or hereafter taken or
omitted to have been taken by him as such director or officer, and shall
reimburse each such person for all legal and other expenses reasonably
incurred by him in connection with any such claim or liability; and shall have
power to defend such person from all suits as provided for under the
provisions of the Utah Business Corporation Act; provided, however that no
such person shall be indemnified against, or be reimbursed for, any expense
incurred in connection with any claim or liability arising out of his own
negligence or willful misconduct. The rights occurring to any person under
the
foregoing provisions of this section shall not exclude any other right to
which he may lawfully be entitled, nor shall anything herein contained
restrict the right of the Corporation to indemnify or reimburse such person in
any proper case, even though not specifically herein provided for. The
Corporation, its directors, officers, employees and agents shall be fully
protected in taking any action or making any payment or in refusing so to do
in reliance upon the advice of counsel.
Section 8.2 Other Indemnification. The indemnification herein provided shall
not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any Bylaw, agreement, note of
shareholders or disinterested directors, or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer or employee and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 8.3 Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer or employee of the
Corporation, or is or was serving at the request of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against liability under the provisions of this Article VIII or
of subsection (o) of Section 16-10-4 of the Utah Business Corporation Act.
Section 8.4 Settlement by Corporation. The right of any person to be
indemnified shall be subject always to the right of the Corporation by its
Board of Directors, in lieu of such indemnity, to settle any such claim,
action, suit or proceeding at the expense of the Corporation by the payment of
the amount of such settlement and the costs and expenses incurred in
connection therewith.
ARTICLE IX
Waiver of Notice
Whenever any notice is required to be given to any shareholder or director of
the Corporation under the provisions of these Bylaws or under the provisions
of the Articles of Incorporation or under the provisions of the Utah Business
Corporation Act, a waiver thereof in writing signed by the persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Attendance at any meeting shall
constitute a waiver of notice of such meetings, except where attendance is for
the express purpose of objecting to the legality of that meeting.
ARTICLE X
Amendments
These Bylaws may be altered, amended, repealed, or added to by the
affirmative vote of the holders of a majority of the shares entitled to vote
in the election of any director at an annual meeting or at a special meeting
called for that purpose, provided that a written notice shall have been sent
to each shareholder of record entitled to vote at such meetings at least ten
days before the date of such annual or special meeting, which notice shall
state the alterations, amendments, additions, or changes which are proposed to
be made in such Bylaws. Only such changes shall be made as have been
specified in the notice. The Bylaws may also be altered amended, repealed, or
new Bylaws adopted by a majority of the entire Board of Directors at any
regular or special meeting. Any Bylaws adopted by the Board may be altered,
amended, or repealed by a majority of the shareholders entitled to vote.
ARTICLE XI
Fiscal Year
The fiscal year of the Corporation shall be fixed and may be varied by
resolution of the Board of Directors.
ARTICLE XII
Dividends
The Board of Directors may, at any regular or special meeting, as they deem
advisable, declare dividends payable out of the surplus of the Corporation.
ARTICLE XIII
Corporate Seal
The seal of the Corporation shall be in the form of a circle and shall bear
the name of the Corporation and the, year of incorporation.
ADOPTED this day of September, 1984.
Certificate of Secretary:
certify:
CHAIRMAN OF THE BOARD
I, the undersigned, do hereby certify that I am the
duly elected and acting Secretary of AD SYSTEMS INC., a Utah Corporation;
That
the foregoing Bylaws, comprising 22 pages, constitute the Bylaws of the
Corporation as duly adopted at a meeting of the Board of Directors
thereof duly held the day of September, 1984.
SECRETARY
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