EXHIBIT 10.30
On-Point Technology Systems, Inc. and IFS International Holdings, Inc.
Assets Acquisition Agreement. May 2000
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement ") is made and entered into as of May
___, 2000, by and between IFS International Holdings, Inc., ("Buyer") a Delaware
corporation with offices located at Rensselaer Technology Park, 300 Jordan Road,
Troy, New York 12180 , and On-Point Technology Systems, Inc. a Nevada
corporation with offices located at 1370 West San Marcos Boulevard Suite 100,
San Marcos, California 92069 ("On-Point") and e-Point Technologies, Inc. a
Nevada corporation and wholly owned subsidiary of On-Point with offices located
at 1370 West San Marcos Boulevard Suite 100, San Marcos, California 92069
("e-Point USA"), On-Point and e-Point USA hereinafter jointly referred to as
"Seller'.
RECITALS
A. Seller operates a Business (such term being defined in Section 1 below)
which is to be sold to Buyer pursuant to this Agreement.
B. Seller owns the tangible and intangible assets , described in "Exhibit
A" attached hereto (the "Acquired Assets"), said Acquired Assets including but
not limited to a Company registered in the United Kingdom as e-Point
Technologies (UK) Limited ("e-Point UK") past and present trademarks, trade
names and logo(s), customer and customer contact lists and computer data bases,
electronic and computer equipment hardware and software, and vendor agreements
used in the operation of the Business, as well as the right to transfer, sell
and assign, certain underlying agreements more fully described herein.
C. Seller desires to assign, transfer and convey to Buyer certain rights to
expand and operate Business in any and all territories within the universe
without limitation.
D. Seller has agreed not to compete with Buyer in the operation of e-Point
UK and/or the Business for a period of one (1) year following Close, as more
specifically provided in section 16 hereof.
E. Buyer and Seller had previously contemplated a joint venture for the
development and exploitation of the e-Point UK Business, under which e-Point UK
would have incurred substantial marketing and operational development costs to
be funded by Seller. Seller has determined that it is unable to adequately meet
the ongoing funding requirements of the e-Point UK Business and/or anticipated
costs arising out of the contemplated joint venture and that the failure to
facilitate immediate additional funding for the e-Point UK Business may result
in the loss of all contemplated current e-Point UK Business opportunities.
Seller desires to eliminate ongoing funding requirements associated with e-Point
UK and Business in addition to securing a payment for the sale of e-Point UK and
Business.
F. Buyer acknowledges that the Business is in a developmental stage and has
not secured any revenues or contracts for future revenues and has to date
operated at a loss. Furthermore Buyer acknowledges that any contemplated future
operation of e-Point UK and/or Business will be highly speculative and that
Seller makes no claims or representations of any nature pertaining to the future
commercial viability of the Business.
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AGREEMENT
NOW THEREFORE, in consideration of the Recitals and the mutual covenants,
conditions, representations, considerations and warranties hereinafter set
forth, the parties agree as follows:
1. DESCRIPTION OF BUSINESS.
The term "Business" shall mean the following:
a) The provision of electronic top-up and/or activation services
("E-TopUp") Solution Provider services to mobile and fixed line telephony
Network Carriers and distributors.
b) The sale and/or licensing and/or or delivery and operation of solutions
for the operation by any and all third party entities of E-TopUp services.
c) The development and operation of E-TopUp Host processing center(s).
d) The development and provision to retailers of solutions for the
operation and management of customer loyalty and/or recurring purchase programs.
2. PURCHASE AND SALE OF ASSETS.
On the terms and subject to the conditions set forth in this Agreement,
Seller agrees to sell, convey, assign, transfer and deliver to Buyer and Buyer
agrees to purchase from Seller, on or before the Closing Date (as determined
under Article 5 below) all of the "Acquired Assets" set forth below, and more
fully described in Exhibit 'A' attached hereto, including without limitation the
following:
(a) all of the issued and outstanding capital shares of e-Point UK,
and
(b) all Intellectual Properties of the Business (as defined at
subsection 7m) as they pertain specifically to e-Point UK; and
the sole and exclusive rights to any and all trademarks, service
marks and trade name(s) of the Business, specifically including
but not limited to all those names and identities and copyright
trademarks and In-Use Logo(s) and registered fictitious business
names as set forth in Exhibit 'A-1'Business Names attached
hereto;
(c) any and all inventory as set forth in Exhibit 'A-2'- "Inventory"
attached hereto;
(d) miscellaneous promotional materials and office supplies as set
forth in Exhibit 'A-3';
(e) property lease as set forth in Exhibit 'A-4'- "Property Leases"
attached hereto;
(f) customer and contact lists and computer data bases as set forth
in Exhibit 'A-5'- "Client Contacts" attached hereto;
(g) all capital equipment including but not limited to electronic and
computer equipment hardware and software as set forth in Exhibit
'A-6'- "Capital Equipment" attached hereto;
(h) vendor agreements, of any and all nature and kind whether
contemplated for use, currently in use or superseded as set forth
in Exhibit 'A-7'- "Vendor Agreements" attached hereto;
(i) the published and in-use Business Internet, telephone and
facsimile numbers as set forth in Exhibit 'A-8' -"Business
Communication Numbers" attached hereto;
(j) all Business client and supplier records and contact details
pertaining to any and all actual and contemplated transactions of
the Business which shall have occurred within a minimum three (3)
calendar year period immediately preceding the Closing Date; and
(k) the services of key management personnel under terms and
conditions of a separately executed employment agreement as set
forth in Exhibit 'B'-"Employment/Contractor Agreement" attached
hereto.
3. PURCHASE PRICE.
As consideration for the Acquired Assets, on the Closing Date Buyer
agrees to deliver to Seller the following payment and considerations ("Purchase
Price"):
(a) Stock Consideration: Buyer agrees to issue and deliver to Seller and/or
Seller's nominee(s) an amount of Buyer's common stock (par value per share
to be determined in accordance with Article 3(c) herein) equal to a sum of
one-hundred thousand dollars ($100,000), subject to certain restrictions on
transfer described in Subsection 2b) hereof ("Seller Stock" ). Seller Stock
is to be issued as fully paid and non-assessable shares.
(b) Buyer acknowledges that the Seller Stock is being issued pursuant to an
exemption from registration under Section 4(2) of the Securities Act of
1993 (the "Act") and/or Regulation D thereunder. Accordingly, Seller
acknowledges that further transfer of the stock is restricted and that the
Seller Stock may only be resold either (i) in a transaction complying with
the provisions of Rule 144 of the United States Securities and Exchange
Commission, or (ii) another transaction which is exempt from registration
in the reasonable opinion of counsel for Buyer. Accordingly, the shares to
be issued may be issued with a legend noting the restrictions on transfer.
Seller hereby warrants and represents that it is acquring the Seller Stock
for its own account and for investment purposes, and not with the view to
distribution thereof in a manner which would constitute the Seller as an
"underwriter" as defined in Section 2(11) of the Act.
(c) The per share value of the Seller Stock shall be determined by the average
of the closing price of the Buyer's Company stock on the five (5) business
days immediately preceding the Closing Date ("Seller's Stock Price") and
Buyer shall deliver to Seller within thirty (30) days after Closing Date an
amount of Buyer stock certificates duly issued to Seller. Seller and any of
Seller's nominee(s) which may be recipients of said Seller Stock agree that
the aforesaid equity stake in Buyer shall be subject to post Closing Date
dilution from any and all ongoing Buyer issuance, sale, assignment,
transfer and delivery of additional shares of Buyer's stock as approved by
Buyer's Board of Directors including but not limited to Buyer funding(s),
merger(s), acquisition(s), debt retirement(s), debt security and Buyer
employee stock and stock option bonus programs.
(d) Seller Stock Value Guaranty. Due to the fact that certain restrictions
apply to Seller's ability to sell the Seller Stock, Buyer has agreed to
provide certain price guarantees, as provided in this subsection. Buyer's
guarantee commences on the earliest date that the Seller Stock may be sold
under SEC Rule 144, and ends ninety (90) days thereafter (the "Guaranty
Period"). Buyer guarantees that if Seller is unable to sell the Seller
Stock during the 90 day Guaranty Period for at least $100,000, then Buyer
shall make Seller whole by paying to Seller the difference between $100,000
and the actual amount that Seller received on the sale of the Seller Stock
or, if not sold, the average of the closing prices for the Guaranty Period.
Buyer may pay such amount, at Buyer's option, by either (i) tendering
Seller the amount required in cash, or (ii) tendering Seller the amount
required in additional shares of Buyer's common stock, valued at the
average closing price during the Guaranty Period. Notwithstanding the
foregoing, if the aggregate closing price of the Buyer's Stock for any
fifteen consecutive business days is $100,000 or greater then Seller shall
have no further obligation hereunder.
4. BUYER ASSUMED LIABILITIES.
Buyer shall assume only those specified debts, liens and liabilities of
the Business as of the Closing Date as detailed in Exhibit 'C' "Buyer Assumed
Liabilities" attached hereto. Any and all liabilities of e-Point UK and/or
Business whatsoever pertaining to Seller's development and/or operation of the
Business up to the Closing date which are not listed on Exhibit "C" shall remain
the sole responsibility of the Seller.
5. CLOSING.
The Closing shall take place on or before 5:00 PM EST on May ____,
2000, or such other date as the parties shall mutually agree upon (the "Closing
Date"). Buyer and Seller shall each be entitled to one reasonable adjournment of
the Closing, for a period not to exceed thirty (30) days, in order to come into
compliance with such party's respective warranties, representations and
covenants under this Agreement, or to make a determination whether to waive a
failure by the other party to be in compliance with any conditions to the
Closing. No further adjournments shall be permitted except with the mutual
consent of both Buyer and Seller.
6. DELIVERIES AT CLOSING.
(a) Seller's Deliveries.
At the Closing on the Closing Date Seller shall deliver to Buyer:
i) such bills of sale, deeds, trademark and fictitious
business name assignments and all other instruments
of sale, conveyance, assignment and transfer as are
sufficient in the opinion of the Buyer and its
counsel to vest in Buyer and its successors or
assigns the absolute, legal and equitable title, free
and clear of any and all debts, liens, attachments
and encumbrance, to all of the Acquired Assets.
ii) If required under law, Seller shall deliver a list of
the assets sold, a list of the names and addresses of
Seller's creditors and an Affidavit of Mailing, all
in conformity with the bulk transfer provisions of
Article 6 of the New York version of the Uniform
Commercial Code or, alternatively, an indemnification
acceptable in form and content to Buyer and Buyer's
legal counsel, indemnifying Buyer from any
liabilities Buyer may incur by reason of the failure
of the parties or the transaction to comply with such
bulk transfer provisions.
iii) a Certificate, duly executed by Seller's corporate
secretary or assistant secretary, attesting to the
passage and continuing effectiveness of resolutions
by each Seller's corporate Board of Directors,
authorizing the signing of this Asset Purchase
Agreement and the consummations of the transactions
contemplated hereunder.
iv) a Certificate, duly executed by Seller's corporate
secretary or assistant secretary, attesting to the
passage and continuing effectiveness of resolutions
by the requisite majority of the shareholders of
e-Point, U.K. authorizing the signing of this Asset
Purchase Agreement and the consummations of the
transactions contemplated hereunder.
(b) Buyer's Deliveries.
At the Closing on the Closing Date Buyer shall deliver to
Seller:
i) a Certificate for $100,000 in value of Buyer's common
capital stock, duly issued as fully paid and
non-assessible common stock; and
ii) a Certificate, duly executed by Buyer's corporate
secretary or assistant secretary, attesting to the
passage and continuing effectiveness of resolutions by
Buyer's corporate Board of Directors, authorizing the
signing of this Asset Purchase Agreement and the
consummation of the transactions contemplated
hereunder, including (without limitation) the issuance
of the Seller Stock.
7. REPRESENTATIONS AND WARRANTIES OF SELLER.
The corporations comprising the Seller hereby jointly and severally represent
and warrant to Buyer that:
(a) On-Point is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada.
e-Point USA is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada.
e-Point U.K. is a corporation duly organized, validly existing
and in good standing under the laws of the United Kingdom.
Each corporation comprising the Seller has the requisite power
and authority to own and operate its assets, properties and
Business and to carry on its business as now conducted.
(b) The execution and delivery of this Agreement and the
consummation of the transactions contemplated by the Boards of
Directors of Seller (and, as to e-Point UK, a majority of its
shareholders), and, when executed by the authorized
representative of the Seller, this Agreement will constitute a
legal, valid and binding agreement of the Seller.
(c) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not
result in the breach of the terms and conditions of, or result
in a loss of rights under, or result in the creation of any
lien, charge encumbrance upon, any of the Acquired Assets
pursuant to (i) Seller's articles of incorporation or bylaws,
(ii) any franchise, mortgage, deed of trust, lease, license,
permit, agreement, patents, instruments or undertaking to
which any Seller is a party or by which any of Seller's
properties are bound, or (iii) any statute, rule, regulation,
order, judgment, award or decree.
(d) There are no suits, claims, actions or proceedings now pending
or threatened before any court, administrative or regulatory
agency or any basis for such claim which may result in any
judgment, order, decree, liability or other determination
which could have adverse effect, financial or otherwise, upon
any of the Acquired Assets. No such judgment, order or decree
has been entered which has or could have such effect.
(e) To the best of the Seller's knowledge, Seller has all licenses
and permits (foreign, federal, state and local) necessary to
conduct its business and such licenses and permits are in full
force and effect. No violations are or have been recorded in
respect of such licenses or permits and no proceeding is
pending or threatened which could result in the revocation or
limitation of any such licenses or permits.
(f) Except as specifically set forth in Exhibits A-1 through A-8,
no consent is necessary to effect the transfer of the Acquired
Assets, and upon the consummation of the transaction
contemplated hereby, Buyer will be entitled to use the
Acquired Assets to the full extent that each Seller used same
immediately prior to the transfer of the Acquired Assets.
Further, by virtue of the By Laws of Seller, Seller has the
requisite power to sell, assign, transfer, hypothecate or
otherwise liquidate any and all assets of Seller.
(g) Copies of all contracts and other documents described in
'Exhibit A-1 , through A-8' (inclusive) hereto have been made
available to Buyer and, to the best of Seller's knowledge, are
correct and include applicable amendments, supplements and
modifications.
(h) Neither this Agreement nor any exhibit hereto delivered, nor
any written statement or certificate furnished, by Seller
pursuant to this Agreement, contains an untrue statement of
material fact or omits to state a fact that is necessary in
order to make the statements contained herein and therein, in
light of the circumstances under which they are made, not
materially misleading.
(i) No valid claim or claims exist that would prohibit Seller from
delivering unencumbered title to and possession of the
Acquired Assets. No one has the right to the Acquired Assets
except Seller. No other claims exist in any form against the
Acquired Assets.
(j) Seller warrants that any debts or claims against and upon e-Point
UK and/or the Business existing at the Closing Date which are not
listed on Exhibit "C" shall be the sole responsibility of the
Seller. Notwithstanding, in any event that Buyer shall be forced
to assume and/or settle any debt or claim whatsoever pertaining
to e-Point UK and/or Business ("Seller Debts"), Buyer shall have
the automatic right of full reimbursement by the Seller of any
and all such Buyer settled Seller Debts and Buyer may, in
addition to other remedies available under law, at its discretion
effect cancellation in part and/or full of Seller Stock in sums
equal to any evidenced payment by Buyer of said Seller Debts,
including any and all reasonable legal costs associated with the
defense or settlement of any and all such Seller Debts by Buyer.
(k) Seller warrants and acknowledges that the costs and debts
incurred by Seller pertaining to the development of the
Business and future Business opportunities related to the
Acquired Assets substantially exceed the Purchase Price.
Nevertheless, Seller believes that the Purchase Price paid by
Buyer for the Acquired Assets under this Agreement, to be fair
and reasonable commercial consideration.
(l) Seller warrants it shall fully comply with the terms and
conditions of the Confidential Information provision of this
Agreement as detailed in Items 15(a) and 15 (b), and further
acknowledges that any failure on its part to fully comply with
the such Confidential Information provisions may cause
irreparable harm and damage to the present and future business
interests of Buyer, including but not limited to loss of
potential revenues, harm to Buyer reputation within the Business
related industry and/or other industries related to Buyer's
commercial interests, present and future, loss to the Acquired
Asset and/or Business, and/or loss of supplier favored trading
relationships. Notwithstanding Buyer's right to seek injunctive
relief, for any breach by Seller(s) of the Confidential
Information provisions hereof, Seller agrees that any such
willful breach shall render Seller liable for damages payable to
Buyer in an amount not to exceed the Purchase Price.
(m) Intellectual Property. The Seller owns (or possesses adequate
licenses or other rights to use without payment of royalties) all
copyrights, trademarks, trade names, service marks, processes,
designs, computer software, inventions, trade secrets, know-how,
technology and the like as they pertain to the Acquired Assets
(the "Intellectual Property"). Exhibit A-9 is a list and brief
description (including, if applicable, date of application,
filing or registration and registration or application number) of
all of the Intellectual Property. The Seller has not infringed
and is not infringing, and has not engaged and is not engaging in
the unauthorized use or misappropriation of, any patent, patent
application, copyright, trademark, service mark, trade name,
process, design, computer software, invention, trade secret,
know-how or technology owned by or belonging to any third party.
There are no actual or, to the Sellers' knowledge, threatened
claims against the Seller relating to the Seller's ownership or
use of any Intellectual Property.
8. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer hereby represents and warrants to Seller that:
(a) Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware. Buyer
has requisite power and authority jointly and/or severally to
own and operate its assets, properties and business and to
carry on its obligations hereunder.
(b) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly authorized and approved by the Board of Directors of
Buyer, and, when executed by an authorized representative of
Buyer, this Agreement will constitute a legal, valid and
binding agreement of Buyer.
(c) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not
violate the Certificate of Incorporation or the bylaws of
Buyer or any agreement, contract or other instrument to which
Buyer is a party, or any statute, rule, regulation, order,
judgment, award or license.
(d) There is no litigation, proceeding or investigation pending
or, to the knowledge of Buyer, threatened against Buyer that
could impair the validity of this Agreement or any action to
be taken pursuant to this Agreement.
(e) Neither this Agreement, nor any exhibit to this Agreement, nor
any written statement or certificate furnished by Buyer in
connection with this Agreement, contains an untrue statement
of material fact or omits to state a fact that is necessary in
order to make the statements contained herein and therein, in
light of the circumstances under which they are made, not
materially misleading.
(f) Buyer acknowledges that the Acquired Assets and Business are
in the developmental stage, and that as at the Closing Date
Seller has not promised or represented to Buyer that any
revenues and/or any agreements or commitments will be
forthcoming from any third parties, and has advised Buyer that
the Business and Acquired Assets have no known specific
commercial value and are strictly of an intangible nature and
value.
(g) Buyer further acknowledges that the continued development and
operation of e-Point UK and the Business is anticipated to
require Buyer to provide substantial future capital and
development funding and resources, and may incur substantial
ongoing operational commitments which may not be able to be
recouped by Buyer ; and Buyer acknowledges that Seller has to
the best of its knowledge advised Buyer of such commercial
risks associated with the future operation of the Business and
Buyer hereby accepts such commercial risks.
9. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER.
All obligations of the Buyer under this Agreement are, at its option,
subject to the fulfillment of each of the following conditions prior to the
Closing:
(a) Representations and warranties of Seller made in this
Agreement or in any Exhibit hereto delivered by Seller shall
be true and correct as of Closing Date with same force and
effect as if made on and as of that date.
(b) Seller shall have performed and complied with all agreements,
covenants and conditions required by this Agreement to be
performed or complied with by Seller prior to or at the
Closing Date.
(c) There shall be pending no litigation or any other claim
proceedings which involve title to or possession of any of the
Acquired Assets or which allege that any Seller has in any
manner violated the intellectural property rights of third
parties.
10. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER.
All obligations of the Seller under this Agreement are, at its option,
subject to fulfillment of each of the following conditions prior to or at
Closing:
(a) All representations and warranties of Buyer made in this
Agreement delivered by Seller shall be true and correct as of
Closing Date with same force and effect as if made on and as
of that date.
(b) Buyer shall have performed and complied with all agreements,
covenants and conditions required by this Agreement to be
performed or complied with by Seller prior to or at the
Closing Date.
11. FURTHER ASSURANCES.
Following the Closing, Seller agrees to take such actions and execute,
acknowledge and deliver to Buyer such further instruments of assignment,
conveyance and transfer, and take any other action as Buyer may reasonably
request in order to more effectively convey, sell, transfer and assign to Buyer
any of the Acquired Assets, to confirm the title of Buyer thereto, and to assist
Buyer in exercising rights with respect to the Acquired Assets.
12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made by each of the parties hereto
shall survive the Closing for a period of Three (3) years after the Closing
Date.
13. INDEMNIFICATION.
(a) By Seller.
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(i) Seller agrees to indemnify, defend and hold harmless
Buyer against any and all losses, costs, expenses,
obligations, liabilities and damages, including
interest, penalties and reasonable attorney's fees
(hereinafter called "Losses"), incurred by Buyer
arising or resulting from, or relating to any
material breach of, or failure by Seller to perform,
any of its representations, warranties, covenants or
agreements in this Agreement or in any Exhibit or
other document furnished or to be furnished by Seller
under this Agreement specifically including but not
limited to the Seller's obligations pertaining to
Seller's Debts at the Closing Date, or by reason of
any act or omission of Seller.
(ii) Seller agrees to indemnify defend and hold harmless
Buyer its agents, servants, employee's officers and
directors from Losses incurred in connection with any
suit or claim whatsoever brought by any third party
arising out of or pertaining to (1) the fairness of
the transaction and the Purchase Price or (2) the
operation of the Business by Seller prior to the
Closing.
(b) By Buyer. Buyer agrees to indemnify, defend and hold harmless
Seller against any and all , Losses, incurred by Seller
arising, resulting from, or relating to (i) any material
breach of, or failure by Buyer to perform, any of its
representations, warranties, covenants or agreements in this
Agreement or in any Exhibit or other document furnished or to
be furnished by Buyer under this Agreement, or (ii) by reason
of any act or omission of Buyer or any of its successors or
assigns after the Closing Date that constitutes a breach or
default under, or a failure to perform, any obligation, duty
or liability of Seller under any contract, lease, license or
other agreement which Buyer expressly assumes under this
Agreement Or (iii) the operation of the Business by Buyer
after the Closing.
14. GENERAL PROVISIONS.
14.1. CONSTRUCTION.
This Agreement shall be construed and enforced in accordance with the
substantive laws of the State of New York, without regard to such State's
conflicts of law principles.
14.2. NOTICES.
All notices, requests, demands and other communications contemplated
under this Agreement shall be in writing and shall be deemed to have been duly
given when (i) mailed by United States, certified or registered mail, postage
prepaid, addressed to the parties at the address first written above, or (ii)
sent by Federal Express or other national or international overnight courier
service providing written evidence of delivery, or (iii) if sent by facsimile
transmission confirmed by first class mail to the following parties, their
successors in interest, or their permitted assigns at the following numbers, or
at such other addresses or facsimile numbers as the parties may designate by
written notice in manner aforesaid:
On-Point Technolgies Systems
1370 West San Marcos Boulevard
Suite 100
San Marcos, California 92069
Seller Fax: (760) 510 - 4949
IFS International, Inc. With Copy To:
---- ---- ---
Rensselaer Technology Park Roland M. Cavalier, Esq.
300 Jordan Road Harris Beach & Wilcox, LLP
Troy, New York 12180 20 Corporate Woods Blvd.
Buyer: Fax: (518) 283 - 8779 Albany, New York 12211
14.3. ASSIGNMENT.
Buyer shall have sole rights to convey, transfer and assign any and of
its rights and obligations under this Agreement provided that no assignment
shall relieve the assignee from the obligation of delivering Seller Stock
consisting of the common capital stock of IFS International, Inc. (Delaware), or
relieve Buyer from any obligation under Sections 3, 6, 8 and 13 of this
Agreement.
14.4 NO THIRD PARTY BENEFICIARIES.
Nothing contained in this Agreement, express or implied, is intended
to confer upon any person or entity other than the parties to this Agreement and
their permitted successors and assigns, any rights or remedies under this
Agreement unless expressly so stated to the contrary.
14.5. REMEDIES.
Except as otherwise expressly provided herein, none of the remedies set
forth in this Agreement is intended to be exclusive, and each party shall have
all other remedies now or hereafter existing in law, in equity, by statute or
otherwise. The election of any one or more remedies shall not constitute a
waiver of the right to pursue other available remedies.
14.6. ARBITRATION.
Any controversy or claim relating to this Agreement (other than a
request for injunctive relief), including any controversy or claim as to the
arbitrability of any controversy or claim and any claim for rescission, shall be
settled by arbitration in either the County of Rensselaer or Albany, State of
New York, in accordance with the rules of the American Arbitration Association,
and judgment upon an award rendered in such arbitration may be entered in any
court having jurisdiction of the matter.
14.7. ATTORNEY' FEES AND LITIGATION COSTS.
If any arbitration proceeding or other legal action is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any of the provisions of this Agreement,
the prevailing party shall be entitled to recover its reasonable attorney' fees
and other costs incurred in such arbitration proceeding or other legal action,
in addition to any other relief to which it maybe entitled, in such amount as
may be determined by the arbitration panel or court deciding the matter.
14.8. ENTIRE AGREEMENT.
This Agreement and the exhibits and other documents specifically
referred to herein or required to be delivered pursuant to the terms of this
Agreement represent the entire agreement of the parties hereto with respect to
the subject matter hereof, and supersede all prior agreements, understandings,
discussions, negotiations and commitments of any kind.
14.9. AMENDMENT AND WAIVER.
This Agreement may not be amended, modified or supplemented, except in
writing signed by all of the parties hereto. No waiver of any rights hereunder
shall be effective, unless made in a writing signed by the party(s) against whom
enforcement of such waiver is sought.
14.10. NO PARTNERSHIP INTENDED
Nothing contained within shall be construed as to imply any partnership
or joint venture or relationship of any nature existing between the parties
other than as specifically detailed.
14.11. SECTION HEADINGS.
The section headings in this Agreement are included for convenience
only, and are not a part of this Agreement and shall not be used in construing
it.
14.12. SEVERABILITY.
In the event that any provision or any part of this Agreement is held
to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall not affect the validity or enforceability of any other
provision or part of this Agreement, unless the effect of such construction
would be to deprive a party of the substantial benefit of his bargain.
14.13. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument. Any counterpart signed by all parties may be introduced
into evidence in any action or proceeding without having to produce or account
for the others. Likewise, the existence of this Agreement may be established by
introduction into evidence of counterparts separately signed, so long as
counterparts signed by all parties are produced and contain substantially
identical terms.
14.14. FACSIMILE.
This Agreement shall become binding upon the delivery to each party of
a facsimile signature affixed by a duly authorized representative of both
parties.
14.15. DRAFTING:
This Agreement was drafted with the joint participation of the parties
and/or their legal counsel. Any ambiguity contained in this Agreement shall not
be construed against any party as the draftsman, but this Agreement shall be
construed in accordance with its fair meaning.
15. CONFIDENTIAL INFORMATION.
(a) The parties hereto, and their respective directors, officers, employees,
agents and/or representatives, during the course of their respective
due-diligence prior to the Close of the transaction contemplated, will be
privileged to acquire confidential information to the other, including but
not limited to marketing strategies, customer contact details,
vendor/supplier trading terms and relationships, financial information and
employee personnel records and sales contracts. Accordingly each party
agrees that both during the period of time between present date and the
Closing Date, and in any event that the contemplated transaction should not
Close a further period of One (1) year from the contemplated Closing Date
or the effective date of transaction negotiation conclusion, which ever
shall be the latter date, it will maintain in strict confidence, and will
use its best efforts to cause its directors, officers, employees, agents
and/or representatives to maintain in strict confidence, all confidential
information, knowledge and data relating to business matters and products
of the other party acquired by or communicated to it and/or its directors,
officers, employees, agents and/or representatives.
(b) Upon the effective Close of the transaction contemplated Seller shall
maintain in strict confidence any and all confidential information
pertaining to e-Point UK the Business and the Acquired Assets and the
transaction contemplated and/or effected, and any and all confidential
information acquired of Buyer during its due-diligence prior to or
following the Close, and any and all confidential information, knowledge,
and data relating to Buyer communicated it and/or its directors, officers,
employees, agents and/or representatives for a period of not less than One
(1) year following the Closing Date and will use its best efforts to cause
its directors, officers, employees, agents and/or representatives to
maintain in strict confidence, all confidential information, knowledge and
data relating to business matters and products of both Seller and Buyer and
Business and Acquired Assets, for a period of One (1) year following the
Closing Date.
16. WARRANTIES AND COVENANTS CONCERNING COMPETITION.
The parties mutually acknowledge that in transferring the Acquired
Assets and the Business, Seller is only transferring a portion of the portfolio
of businesses now conducted by Seller. Likewise the parties mutually acknowledge
that Buyer and Seller have, to some extent, been in competition with each other
in the past by virtue of the fact that there is some existing overlap in their
product and service lines. Accordingly, the parties agree as follows with
respect to matters involving the respective conduct by Buyer and Seller of their
businesses and the conduct of the Business to be sold hereunder after the
closing:
(a) Seller acknowledges that Buyer has operated a business for many years
which has a substantial history in the sale and licensing of products
and services identical and/or substantially similar to the products and
services of e-Point UK and Business and that nothing contained in this
Agreement is in any manner intended to imply that the rights sold,
conveyed, transferred and assigned to Buyer are in any manner the only
rights of Buyer to operate a business in association with and/or
competition with OnPoint or e-Point USA; and in any event that this
Agreement should fail to Close and/or terminate for whatsoever reason
Seller shall claim no restriction over Buyer in regards to Buyer's
rights to compete with any Seller and/or Business.
(b) Seller warrants, covenants and agrees that upon the Close of the
transaction contemplated and for a further period of One (1) following
the Closing Date ("Non-Compete Term") that it shall not compete against
Buyer in the Business and/or Buyer's exploitation of any and all
commercial opportunities of the Business solely within the territories
of the United Kingdom and Ireland ("Exclusive Markets").
(c) Seller warrants, covenants and agrees that Buyer shall have rights to
develop and exploit the Acquired Assets in any and all territories
throughout the universe without limitation ("Unrestricted Right to
Trade In Assets"). Notwithstanding, Buyer acknowledges and warrants
that specifically excluding the Exclusive Markets for the Non-Compete
Term, that said Unrestricted Right to Trade In Assets shall be granted
Buyer on a strictly non-exclusive basis and Seller may at its sole
discretion compete with Buyer in the development and exploitation of
commercial opportunities outside of the Exclusive Markets.
(d) Notwithstanding the provisions of subsection 16(c), Seller warrants
that the right to utilize the trademarks, service marks, trade names
and e-Point UK corporate name anywhere within the universe shall be
solely that of Buyer.
17. PAYMENT OF TAXES.
Seller has paid and will continue to pay up to the Closing Date: (i)
all taxes arising from the operation of the Business up until the Closing Date,
including without limitation, all taxes levied upon revenues, net income or
value added, (ii) all taxes affecting the Acquired Assets, including, without
limitation, social security, withholding, sales and/or use taxes, and (iii) all
unemployment insurance taxes or premiums due with respect to employment of any
employees of the Business which, if not paid, might result in a lien against the
Assets.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
<PAGE>
Signatory Page to :
On-Point Technology Systems, Inc. and IFS International, Inc.
Assets Acquisition Agreement. May 2000
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first mentioned above.
BUYER: IFS International, Inc.
BY:___________________________________
Its: Chief Executive Officer (Mr. David Hodge)
Date: _____/______/______
SELLER On-Point Technology Systems, Inc.
BY:___________________________________
Its: Chief Executive Officer (Mr. Frederick Sandvick)
Date: _____/______/______
AND
e-Point Technologies, Inc.
BY:___________________________________
Its: Chief Executive Officer (Mr. Frederick Sandvick)
Date: _____/______/______
<PAGE>
EXHIBIT 'A' - ASSETS TO BE ACQUIRED
Seller shall sell, convey, transfer and assign, free and clear of any
encumbrance, lien or indebtedness, all right, title and interest in and to all
the following specific assets of On-Point and/or e-Point USA and/or e-Point UK
and/or Business immediately upon the Close of the transaction contemplated:
A-1 e-Point UK and Business Name:
a). All right title and interest in and to all issued and
outstanding equity in e-Point Technologies (UK) Limited a
United Kingdom private limited company with registered
offices at Southgate Chambers, 37/39 Southgate Street
Winchester, Hampshire SO23 9EH, England (Buyer Registration
No. 3860893, a copy of Certificate of Incorporation being
included as an attachment to this Exhibit marked Attachment
A-1 (1)
b.) All right title and interest in and to the business and
trading name "e-Point Technologies" in any and all markets,
territories and jurisdictions throughout the universe
without limitation, and
c) All right title and interest in and to the registered
trademark of e-Point as filed within the European
territories (Registered under European trademark application
# 1439033, filed December 23, 1999) a copy of said e-Point
trademark being included as an attachment to this Exhibit
marked attachment A-1 (2)
A-2 Inventory:
Seller warrants and Buyer acknowledges that e-Point UK and
Business has no product, technology or service inventory of
any nature whatsoever.
A-3 Office Supplies & Promotional Materials
a). Any and all (if any) office supplies and promotional
materials existing in the e-Point UK office at the
Closing Date. Buyer and Seller mutually agree that
such office supplies and promotional materials have
uncertain value and/or benefit to the ongoing
operation of e-Point UK and Business and shall
therefore not be construed as to create a material
obligation upon the Seller, however Seller agrees to
make best efforts to deliver or make available for
collection by Buyer immediately following the Closing
Date any office supplies and promotional materials
pertaining to e-Point Technologies and/or which
incorporate the e-Point trademark.
b). Any and all if any hereto unspecified e-Point
trademarked promotional materials existing in the
e-Point USA office at the Closing Date. Buyer and
Seller mutually agree that such promotional materials
have uncertain value and/or benefit to the ongoing
operation of e-Point UK and Business and shall
therefore not be construed as to create a material
obligation upon the Seller, however Seller agrees to
make best efforts to deliver or make available for
collection by Buyer immediately following the Closing
Date promotional materials pertaining to e-Point
Technologies and/or which incorporate the e-Point
trademark.
A-4 Property Leases. A certain Property and/or Services lease
entered into by and between e-Point UK and Southgate Chambers
Limited, a copy of which is included as an attachment to this
Exhibit marked attachment A-4
A-5 Client Contacts. Buyer acknowledges the prior receipt of an
electronic delivery of e-Point UK Client Contact details.
A-6 Capital Equipment. Seller advises and Buyer acknowledges that
all equipment purchases for e-Point UK have been expensed and
that a comprehensive schedule of all such equipment is
attached to this Exhibit marked Attachment A-6 .
A-7 Vendor Agreements
A License Agreement was entered into by and between On-Point
and e-Point USA and AirTIME Technologies, Inc. (the "AirTime
Agreement" - copy attached to this Exhibit marked Attachment
A-7). However as a result of an alleged breach by On-Point in
its obligations to meet the Initial License Fee Payment
Schedule of said AirTIME Agreement, On-Point/e-Point USA has
received Notice of default and subsequent Notice of
Termination of said AirTIME Agreement.
On-Point has not fully determined its rights or desire to
defend its rights and obligations under said AirTimeAgreement.
Notwithstanding, Seller warrants and Buyer acknowledges an
advise from AirTIME indicating its desire to negotiate a new
license Agreement with On-Point and/or e-Point UK and/or Buyer
and Seller grants to Buyer the sole right at its discretion to
negotiate and execute a license agreement directly with
AirTIME Technologies, Inc. Seller is transferring any rights
it may have under the AirTime Agreement, but Buyer is not
assuming any accrued liabilities or obligations thereunder,
and Seller shall indemnify, defend and hold Buyer harmless
from any and all Losses (as defined in subsection 13(a)(i)
hereof) relating to any claims made by AirTime Technologies,
Inc., its successors and assigns.
Seller warrants and represents to Buyer that except for (i)
the AirTIME Agreement, (ii) Southgate Chambers Limited
Property/Service Lease Agreement and (iii) month to month
telephony service agreements with fixed line telephony carrier
no current vendor agreements or obligations exist by and
between e-Point UK and any third party.
A-8 Business Communication Numbers
Telephone& Facsimile Lines: Sole and exclusive right to the
fixed line telephony numbers currently in use by
e-Point UK and terminating at the Southgate Chambers
office location. These numbers, currently provided
under month to month service agreements with British
Telecom are as follows: Telephone 01962 870 111 and
Facsimile 01962 870 222.
Internet Domain Names: Sole and exclusive right to all the
following Internet Domain names:
www.e-pointtech.com
www.e-pointtech.uk.co
www.e-pointtech.uk.net
Seller shall maintain Internet and email services for
the above Internet Domain names and upon the Close
Seller agrees to work with Buyer to ensure a smooth
transition of the Internet address hosting from the
Seller current ISP host to the Buyer nominated ISP
host.
A-9 Intellectual Property
e-Point trademark attached hereto as referenced
in Exhibit A-1 item C, above
<PAGE>
Exhibit A - Attachment A6
e-point company assets
Item Number Description Manufacturer Part No. Serial No.
1 Zip Drive Iomega 04018D00 P7CW0710A7
2 Zip connector n/a n/a n/a
3 Fax machine Samsung SF-3100 83AK901131D
4 Ink Jet Printer HP C6409A ES91S1D103
5 Pentium PC 400 Watford Electronics n/a
6 Spiral Book Binder n/a n/a n/a
<PAGE>
EXHIBIT 'B' - EMPLOYEE/CONTRACTOR AGREEMENTS
Employment Agreements: A certain Employment Agreement entered
into by and between e-Point Technologies (UK) Limited and Mr.
Hugh McPartlan for the engagement of Mr. McPartlan in the
capacity of Head of Operations for e-Point UK (McPartlan
Employment Agreement") a copy of said McPartlan Employment
Agreement is attached to this Exhibit marked Attachment B-1.
Seller warrants that specifically excluding the aforesaid
McPartlan Employment Agreement that no current employment
agreements exist between e-Point UK and any party.
Contractor Agreements: Seller warrants that no sub-contractor or
consultant agreements exist between e-Point UK and any third
party.
<PAGE>
EXHIBIT 'B' - Attachment B1
December 20, 1999
Hugh McPartlan
2 Stanbury Close
Thruxton, Andover
Hants. SP11 8QD
England
CONFIDENTIAL - Terms of Employment
Dear Hugh,
e-Point Technologies (UK) Limited ("e-Point") is pleased you have agreed to join
us in a senior management position with the company in the capacity of Director
of Operations - e-Point Technologies (UK) Limited effective February 1st , 2000.
In this position you will be responsible for the implementation and refinement
of corporate operational policies and procedures for the effective and efficient
operation of the Company's business within the United Kingdom as identified
through the Company's strategic plan, including negotiation of vendor contracts
subject to management final approval, preparation and supervision of equipment
and software development and deployment schedules and budgets, supervision of
nominated staff and other responsibilities consistent with the position as
notified by management from time to time.
The terms of employment and your compensation package will be as follows:
1. Salary:(pound)3,000 per month ((pound)36,000 annualized), payable on a
bi-weekly basis.
2. Stock Options: The Board of Directors of e-Point Technologies, Inc. has
agreed to grant a stock option to you in accordance with the Company's
group employee stock option plan subject to your acceptance of this offer.
The number of shares underlying the option is twenty-five thousand (25,000)
and will have a strike price based on the closing price of the stock on the
date that the stock option agreement is executed or one-dollar US (US$1.00)
whichever shall be the greater (Strike Date). The options will have a five
(5) year exercise period from the date of agreement and will vest on the
following schedule:
o one-tenth (2,500 shares) after 36 months o one-tenth (2,500 shares) after 42
months o one-tenth (2,500 shares) after 48 months o seven-tenths (17,500 shares)
after 54 months
The granting of this option does not preclude the granting of additional
options that the Board may grant in its discretion for your future
contributions to the Company.
Bonus: You will eligible to receive a bonus during the first two years of
employment based on a set formula as follows:
A) 1.25% of after-tax income* of(pound)500,000 to(pound)1,500,000;and
B) 1.00% of after-tax income* of(pound)1,500,001 to(pound)2,500,000;and
C) 0.75% of after-tax income* of(pound)2,500,001 to(pound)3,500,000;and
D) 0.50% of after-tax income* of(pound)3,500,001 to(pound)4,500,000; and
E) 0.25% of after-tax income* of exceeding(pound)4,500,001.
* After-tax income means the net income under GAAP earned from the e-Point
Technologies (UK) limited business interests in the United Kingdom.
You will be also be eligible for an annual discretionary bonus after every
year of employment.
Benefits: Benefits will be paid according to standard Company benefit
policies. Principal current benefits are as follows:
o Vacation & Leave Benefits: After ninety (90) days, vacation, personal and
sick leave benefits will accrue in accordance with the standard and
mandatory rates as applicable to the industry for employment in similar
positions.
o Medical Benefits: At this time the Company has no established medical
benefits program for employees domiciled in the United Kingdom, however if
such a program is established you will be eligible for participation in
accordance with the terms and conditions available to all executive staff
at that time.
o You will be provided with a motor vehicle or motor vehicle allowance of
(pound)300 per month. If by mutual agreement you are provided with a motor
vehicle such vehicle will be provided for business use with the
understanding that you may utilize the vehicle for personal travel provided
such use is undertaken in accordance with the Company policy/s regarding
such matters.
General Conditions:
This offer of employment is conditional upon your acceptance
and compliance with all Company policies and procedures as detailed in Company
employee handbook and/or as advised in writing by management from time to time.
Furthermore, employment with the Company under the general terms and conditions
detailed above shall not be considered effective until all employee "New Hire"
documentation (including Non-Circumvention/Non-Disclosure agreement) has been
executed and received by Company.
This appointment is under the standard senior management arrangements and as
such either you or the Company may terminate employment at any time, for any or
no reason, usually with one months notice.
I want to take this opportunity to welcome you to the Company at this most
exciting time. I know that Brian and Frederick both share my confidence in your
abilities and we all look forward to the valuable contribution you will make to
shaping the future of our operations in the United Kingdom.
Sincerely,
e-Point Technologies (UK) Limited.
Gary Larkin
Vice President
cc: Frederick Sandvick, HRD Department - Personnel Files
<PAGE>
EXHIBIT 'C - BUYER ASSUMED LIABILITIES
In strict accordance with the terms and conditions of the Agreement the Buyer
hereby assumes only the following specific liabilities of e-Point UK and
Business:
a) An employment agreement with Mr. Hugh McPartlan acting in the capacity
of Head of Operation for e-Point UK a copy of which is included in
Exhibit B-1 ("Employment Agreement"). Notwithstanding the assumption of
said Employment Agreement Buyer's liability to Mr. McPartlan under said
Employment agreement shall be strictly limited to any and all
compensation and reimbursements and/or entitlements pertaining to only
those services provided by Mr. McPartlan to e-Point UK and/or Business
and/or Buyer after the Closing Date and any and all compensations
and/or reimbursements and/or entitlements accrued and/or owed to Mr.
McPartlan resulting from services provided to e-Point UK and/or e-Point
USA and/or On-Point and/or Business prior to the Closing Date shall be
the sole responsibility of Seller, and
b) A certain lease executed by and between e-Point UK and Southgate
Chambers Limited for the provision to e-Point UK and/or Business of
office space and/or services, a copy of which is attached hereto in
Exhibit 'A-4 ("Office Lease"). Notwithstanding the assumption of the
Office Lease, Buyer's liability to Southgate Chambers Limited under the
Office Lease shall be strictly limited to rents and/or other payments
arising or accruing with respect to occupancy and/or services provided
after the Closing Date, and all rents and/or other payments arising or
accruing with respect to occupancy and/or services provided prior to
the Closing Date shall be the sole responsibility of Seller, and
c) Any and all e-Point UK and/or Business communication services
agreements, including but not limited to any and all fixed line
telephony and facsimile services and mobile telephony services ("Phone
Service Agreements"). Notwithstanding the assumption of said Phone
Service Agreements Buyer's liability to any and all third party vendors
pertaining to said Phone Service(s) shall be strictly limited to
payments accruing with respect to services provided by any and all
third party vendors after the Closing date, and all payments accruing
with respect to accrued and/or owed resulting from services provided
prior to the Closing Date shall be the sole responsibility of Seller.
Bills for the month in which the Closing occurs shall be apportioned
based upon actual call transmission dates.
d) Buyer shall be solely responsible for any and all costs and liabilities
whatsoever associated with the ongoing development and operation of
e-Point UK and Business undertaken at its sole discretion following
Closing Date. Notwithstanding, specifically excluding Items a) and b)
and c) above Buyer shall not be responsible in any manner for the
assumption of any liabilities whatsoever associated with development
and operation of e-Point UK and/or Business whatsoever incurred by
e-Point UK and/or e-Point USA and/or On-Point and/or Business prior to
the Closing Date ("Prior Business Costs") and any and all Prior
Business Costs shall be the sole responsibility of Seller.
