SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 15, 1997
Fronteer Financial Holdings, Ltd.
----------------------------------------------------
(Exact name of registrant as specified in its charter)
Colorado 0-17637 45-0411501
--------------------------- ------------------- ------------------
(State or other jurisdiction (Commission File No.) (I.R.S. Employer
of incorporation) Identification No.)
1700 Lincoln Street, Suite 3200, Denver, CO 80203
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(Address of principal executive offices) (Zip Code)
(303) 860-1700
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(Registrant's telephone number, including area code)
<PAGE>
Item 2. ACQUISITION OR DISPOSITION OF ASSETS.
On September 15, 1997, Contract America purchased all of the primary operating
assets of Fronteer Marketing Group, Inc. (FMG), a wholly owned subsidiary of
Fronteer Financial Holdings, Ltd., (Fronteer or the Company) for approximately
$421,000. The purchase price was based on existing financing arrangements and
cost of anticipated fixed asset upgrades. A portion of the purchase price was
paid in the form of a promissory note in the amount of $141,344 to be paid over
27 months at $5,048 per month. The remainder of the purchase price is to be paid
in the form of a promissory note in the amount equal to FMG's cost of
anticipated fixed asset upgrades installed in existing telemarketing centers.
Monthly payments of principal and interest at 10% of between $3,000 and $8,000
per month will be made through December 2000 at which time the balance will be
due and payable to the Company. Contact America also assumed leases related to
two telemarketing centers in North Dakota of a combined monthly rental of $1,000
and has entered into a three-year lease for approximately 5500 square feet of
space in a building the Company owns in Bismarck, North Dakota for $2,752 per
month. Prior to the transaction, there was no material relationship between
Contact America and the Company or any of its affiliates, any director or
officer of the Company or any associate of any such director or officer.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statements of business acquired.
Not applicable
(b) Pro forma financial information.
The following unaudited pro forma condensed consolidated
financial statements are filed with this report:
Pro Forma Condensed Consolidated Balance Sheet
as of June 30, 1997.
Pro Forma Condensed Consolidated Statement of Operations:
Year ended September 30, 1996
Nine months ended June 30, 1997
The Pro Forma Condensed Consolidated Balance Sheet of Fronteer as
of June 30, 1997 reflects the financial position of the Company
after giving effect to the disposition of the assets discussed in
Item 2 and assumes the disposition took place on June 30, 1997.
The Pro Forma Condensed Consolidated Statements of Operations for
the fiscal year ended September 30, 1996 and the nine months
ended June 30, 1997 assume that the disposition occurred on
October 1, 1995 and are based on the operations of the Company
for the year ended September 30, 1996 and the nine months ended
June 30, 1997.
2
<PAGE>
The unaudited pro forma condensed consolidated financial
statements have been prepared by the Company based upon
assumptions deemed proper by it. The unaudited pro forma
condensed consolidated financial statements presented herein are
shown for illustrative purposes only and are not necessarily
indicative of the future financial position or future results of
operations of the Company or of the financial position or results
of operations of the Company that would have actually occurred
had the transaction been in effect as of the date or for the
periods presented. In addition, it should be noted that the
Company's financial statements will reflect the disposition only
from the closing date of the disposition.
The unaudited pro forma condensed consolidated financial
statements should be read in conjunction with the historical
financial statements and related notes of the Company.
(c) Exhibits.
Exhibit 2.1
Asset Sale and Purchase Agreement by and between Fronteer
Marketing Group, Inc. and Contract America dated September 15,
1997. The Exhibits to the Asset Sale and Purchase Agreement are
described therein and are not being filed because the Company
does not believe such Exhibits are material to an investment
decision. The Company agrees to furnish supplementally to the
Commission upon request any omitted Exhibit.
3
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: September 30, 1997
FRONTEER FINANCIAL HOLDINGS, LTD.
By: /s/ R. A. Fitzner, Jr.
---------------------------------
R.A. Fitzner, Jr.
Chairman of the Board
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<PAGE>
<TABLE>
<CAPTION>
Fronteer Financial Holdings, Ltd. and Subsidiaries
Pro Forma Condensed Consolidated Balance Sheet
as of June 30, 1997
Pro forma
Historical adjustments(A) Pro forma
---------- ------------- ---------
<S> <C> <C>
Cash and cash equivalents ................... $ 1,349,632 -- 1,349,632
Accounts and notes receivable ............... 6,953,196 69,064 7,022,260
Securities owned, at market value ........... 1,291,985 -- 1,291,985
Other current assets ........................ 1,492,949 -- 1,492,949
---------- ---------- ----------
Total current assets ..................... 11,087,762 69,064 11,156,826
Net property, furniture and equipment ....... 2,025,205 (317,931) 1,707,274
Other assets ................................ 718,122 352,280 1,070,402
---------- ---------- ----------
Total assets ............................. 13,831,089 103,413 13,934,502
========== ========== ==========
Payables and accrued expenses ............... 2,843,689 -- 2,843,689
Current portion of long-term debt ........... 1,939,626 71,390 2,011,016
Notes payable to related parties ............ 449,985 -- 449,985
Other current liabilities ................... 783,502 -- 783,502
---------- ---------- ----------
Total current liabilities ................ 6,016,802 71,390 6,088,192
Long-term debt, net of current portion ...... 969,865 208,610 1,178,475
Deferred rent concessions ................... 1,683,282 -- 1,683,282
---------- ---------- ----------
Total liabilities ........................ 8,669,949 280,000 8,949,949
Minority interest in subsidiary ............. 254,635 -- 254,635
Total stockholders' equity ............... 4,906,505 (176,587) 4,729,918
---------- ---------- ----------
Total liabilities and stockholders' equity 13,831,089 103,413 13,934,502
========== ========== ==========
</TABLE>
(A) Represents elimination of primary operating assets of Fronteer
Marketing Group, Inc. sold to Contact America. Also includes recording
promissory notes of $141,344 and $280,000 and a capital lease
obligation of $280,000 for the anticipated fixed asset upgrades.
F-1
<PAGE>
<TABLE>
<CAPTION>
Fronteer Financial Holdings, Ltd. and Subsidiaries
Pro Forma Condensed Consolidated Statement of Operations
Year Ended September 30, 1996
Pro forma
Historical adjustments(A) Pro forma
---------- ------------- ---------
<S> <C> <C> <C>
Revenue ......................................... $ 28,786,905 317,349 28,469,556
Cost of sales and operating expenses:
Cost of sales ................................ 19,147,866 607,687 18,539,879
General and administrative ................... 12,118,998 158,734 11,960,264
Depreciation and amortization ................ 1,220,142 186,201 1,033,941
----------- ---------- -----------
32,487,006 952,922 31,534,084
----------- ---------- -----------
Operating loss ............................... (3,700,101) (635,573) (3,064,528)
Other income (expense), net ..................... 1,484,845 (123,794) 1,608,639
----------- ---------- -----------
Loss before minority interest and income
taxes ........................................ (2,215,256) (759,367) (1,455,889)
Minority interest in earnings ................... (87,626) -- (87,626)
----------- ---------- -----------
Loss before income taxes ........................ (2,302,882) (759,367) (1,543,515)
Income tax expense .............................. (55,799) -- (55,799)
----------- ---------- -----------
Net loss ........................................ (2,358,681) (759,367) (1,599,314)
Preferred stock dividends ....................... (59,061) -- (59,061)
----------- ---------- -----------
Net loss applicable to common
shareholders ................................. (2,417,742) (759,367) (1,658,375)
=========== ========== ===========
Loss per common share ........................... $ (.17) (.12)
=========== ===========
</TABLE>
(A) Represents operating results of Fronteer Marketing Group, Inc. for the
year ended September 30, 1996. Includes adjustments to increase other
income by $33,024 and $1,663, respectively, representing rental income
on 5500 square feet and the effect on interest income and expense for
amounts received on notes receivable and paid on a capital lease
obligation in relation to the anticipated fixed asset upgrades.
F-2
<PAGE>
<TABLE>
<CAPTION>
Fronteer Financial Holdings, Ltd. and Subsidiaries
Pro Forma Condensed Consolidated Statement of Operations
Nine Months Ended June 30, 1997
Pro forma
Historical Adjustments(A) Pro forma
---------- ------------- ---------
<S> <C> <C> <C>
Revenue .......................................... $ 22,656,983 335,319 22,321,664
Cost of sales and operating expenses:
Cost of sales ................................. 14,520,246 713,842 13,806,404
General and administrative .................... 9,630,283 181,084 9,449,199
Depreciation and amortization ................. 807,348 274,677 532,671
----------- ----------- -----------
24,957,877 1,169,603 23,788,274
----------- ----------- -----------
Operating loss ................................ (2,300,894) (834,284) (1,466,610)
Other expense, net ............................... (1,087,107) (238,040) (849,067)
----------- ----------- -----------
Loss before minority interest and income
taxes ......................................... (3,388,001) (1,072,324) (2,315,677)
Minority interest in earnings .................... (10,638) -- (10,638)
----------- ----------- -----------
Loss before income taxes ......................... (3,398,639) (1,072,324) (2,326,315)
Income tax benefit ............................... 1,497,281 -- 1,497,281
----------- ----------- -----------
Net loss ......................................... (1,901,358) (1,072,324) (829,034)
=========== =========== ===========
Loss per common share ............................ $ (.11) (.05)
=========== ===========
</TABLE>
(A) Represents operating results of Fronteer Marketing Group Inc. for
the nine months ended June 30, 1997. Includes adjustments to
increase other income by $24,768 and $3,764, respectively,
representing rental income on 5500 square feet and the effect of
interest income and expense for amounts received on notes
receivable and paid on a capital lease obligation in relation to
the anticipated fixed asset upgrades.
F-3
<PAGE>
EXHIBIT INDEX
Exhibit Description Page No.
- ------- ----------- --------
2.1 Asset Sale and Purchase Agreement by and between Fronteer 9
Marketing Group, Inc. and Contact America dated September
15, 1997. The Exhibits to the Asset Sale and Purchase
Agreement are described therein and are not being filed
because the Company does not believe such Exhibits are
material to an investment decision. The Company agrees to
furnish supplementally to the Commission upon request any
omitted Exhibit.
ASSET SALE AND PURCHASE AGREEMENT
THIS SALE AND PURCHASE AGREEMENT, ("AGREEMENT") entered into by and between
FRONTEER MARKETING GROUP, INC., of P.O. Box 5542, Bismarck, North Dakota,
58502-5542, hereinafter called Seller, whether one or more, and CONTACT AMERICA,
7777 Girard Avenue, Suite 206, La Jolla, California, 92037, hereinafter called
Buyer, whether one or more, on the 15th day of September, 1997.
WITNESSETH:
WHEREAS, Seller is the owner of the assets, inventory and personal property
used in the business of a telemarketing firm known as Fronteer Marketing Group,
Inc., located at Bismarck, Beulah, Halliday, and Flasher, North Dakota;
WHEREAS, Seller desires to sell the assets, as provided for in this
Agreement; and,
WHEREAS, Buyer desires to purchase the assets, as provided for in this
Agreement.
NOW, THEREFORE, IT IS AGREED, as follows:
1. ASSETS SOLD AND PURCHASED: Subject to the conditions herein, Buyer
agrees to purchase and Seller agrees to sell, transfer and convey on the closing
date, the assets, (hereinafter referred to as "purchased assets"), now owned and
hereafter acquired by Seller prior to the closing:
a. All inventory, equipment, computers, and software, including
hardware and software purchased or to be purchased from Small Wonders, set
forth in Exhibit "A" attached hereto and made a part hereof;
b. All contracts, agreements, leases, tradenames, licenses, permits
and consents except those which cannot be transferred to Buyer, and other
authorizations for or used in connection with or relating to the operation
of the business set forth in Exhibit "B" attached hereto and made a part
hereof;
c. All records and files relating to the business and operation of the
business as the Buyer may reasonably require; however,
d. The Seller retains the right to use the name Fronteer, and Buyer
acquires no rights to use the name Fronteer through this asset sale.
2. PURCHASE PRICE: The purchase price for the assets, property and rights
so acquired shall be the sum of ONE HUNDRED FORTY ONE THOUSAND THREE HUNDRED AND
FORTY FOUR and No/100 DOLLARS ($141,344.00) for the existing assets of Fronteer
Marketing Group, Inc., and will also include the amount necessary for upgrades
to existing equipment to bring that equipment to specifications required by the
Buyer. The cost of the anticipated upgrades is not to exceed TWO HUNDRED EIGHTY
THOUSAND and No/100 DOLLARS ($280,000.00). These upgrades will be purchased by
the Seller and delivered to the Buyer at the closing date. The upgrades
necessary to bring the equipment to the specifications of the Buyer shall be by
the mutual consent of the parties. The entire purchase price shall be paid to
the Seller in the following manner:
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a. The Buyer will execute a Promissory Note (attached hereto as
Exhibit "C") in the amount of ONE HUNDRED FORTY ONE THOUSAND THREE HUNDRED
AND FORTY FOUR and No/100 DOLLARS ($141,344.00) in favor of Fronteer
Financial Holdings. This note shall not bear interest. Payments are to be
made by the Buyer to Fronteer Financial Holdings in the amount of FIVE
THOUSAND FORTY EIGHT and /No 100 DOLLARS ($5,048.00) per month, beginning
with the first day of October, 1997, and continuing on the first day of
each month for 27 consecutive months thereafter. The Seller is authorized
to and hereby does relinquish all rights in the proceeds of this Note. The
Seller assigns all of its rights in the proceeds of this Note to Fronteer
Financial Holdings, The Seller and Fronteer Financial Holdings will
indemnify and hold the Buyer harmless if there is any claims made against
and/or loss suffered by the Buyer as a result of the assignment of the
proceeds of this Note to Fronteer Financial Holdings. The Buyer shall have
the right, in its sole discretion, to prepay this Note and/or in its
discretion to pay off the existing lease at Wilton State Bank directly,
without penalty or premium, at any time. Any payments made by the Buyer
directly to Wilton State Bank shall reduce the amounts due under the
promissory note. The Seller warrants that prepayment will be acceptable by
Wilton State Bank and the Seller agrees to indemnify the Buyer for any
penalty or premium assessed by Wilton State Bank for prepayment of the
subject Lease.
b. Fronteer Financial Holdings is obligated to forward monthly
payments (in the amounts required by the lease) to Wilton State Batik to
satisfy an existing lease of purchased equipment. The existing lease is
identified as "Equipment Lease," dated February 14,1997, attached hereto as
exhibit "D," and has an existing balance as of the closing date in the
amount of approximately $141,344.00, with monthly payments in the amount of
$5048.00. The existing lease encumbers the equipment listed in the
"Description of Equipment" section of the lease. Default by Fronteer
Financial Holdings, Inc., for more than sixty days in making the required
payments to Wilton State Bank will relieve the Buyer of its obligation to
make payments on the $141,344.00 Promissory Note to Fronteer Financial
Holdings, Inc., and the Promissory Note shall be canceled and the Buyer
shall have no further obligations under the said Note. Fronteer Financial
Holdings and the Seller shall be liable for any charges, costs, expenses
and fees incurred by the Buyer and/or Wilton State Bank as a result of
Fronteer Financial Holdings default. Fronteer Financial Holdings and the
Seller will indemnify and hold the Buyer harmless from any charges, costs,
expenses, fees, liabilities, claims, damages, causes of action or losses to
the Buyer as a result of Fronteer Financial Holdings' default in making any
payment to Wilton State Bank.
c. The Buyer will execute a second note in favor of Fronteer Financial
Holdings (attached hereto as Exhibit "E") in an amount sufficient to cover
the cost of anticipated upgrades installed under paragraph 2 above. This
note will not exceed the amount actually extended on upgrades or TWO
HUNDRED EIGHTY THOUSAND and No/100 DOLLARS ($280,000.00), whichever is
less. The Seller is authorized to relinquish and hereby does relinquish,
all rights to the proceeds of this Note and assigns all of its rights in
this Note to Fronteer Financial Holdings. Fronteer Financial Holdings and
the Seller will indemnify and hold the Buyer harmless if there is any claim
made against it and/or loss suffered by the Buyer as a result of the
assignment of the proceeds of this note. The Buyer shall have the right, in
its sole discretion to prepay this Note, without penalty or premium at any
time.
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d. This note ($280,000), will bear interest at the rate of ten percent
(10%) per annum beginning on October 1, 1997. Payments on said note shall
be as follows:
(i) During the months of October and November of 1997, no
payments will be made on this note, but interest will accrue at the
rate of ten percent (10%) per annum.
(ii) During the months of December, 1997, through January, 2000,
the Buyer shall pay to the Seller payments of THREE THOUSAND and
No/100 DOLLARS ($3,000.00) per month on the first day of each month.
(iii) During the months of February, 2000 through November, 2000,
the Buyer shall pay to the Seller payments of EIGHT THOUSAND and
No/100 DOLLARS ($8,000.00) per month.
(iv) During the month of December, 2000, the Buyer shall pay the
balance due on the note in a single balloon payment.
e. At no time during the years 1997, 1998, 1999, or 2000, until the
balloon payment is due, shall the total payments pursuant to this paragraph
(paragraph 2) exceed $8,000 for any one month. A true and correct copy of
the amortization schedule is attached hereto as Exhibit "F" and
incorporated herein by reference.
f. Buyer agrees to assume and pay only those obligations and amounts
detailed in Exhibit "B", attached hereto and made a part hereof. Buyer does
not assume any debt, liability, payable or obligation of Seller, except as
provided in Exhibit "B". All liabilities of whatever type or nature,
including but not limited to bank notes, taxes, and debts to vendors and
suppliers, which are not listed on Exhibit "B", shall remain and be the
obligation of Seller.
3. Buyer agrees and hereby grants to Seller a security interest in all
assets listed in Exhibit "A" and all upgrades purchased by the Seller pursuant
to paragraph 2 and agrees to execute any and all necessary documents to perfect
the security interest.
4. ALLOCATION OF PURCHASE PRICE: The purchase price of the assets purchased
from Seller shall be allocated, as follows:
Inventory 100%
Each of the parties hereto agrees to report this transaction for federal, state
or local government reports as set forth above.
5. TRANSFER OF ASSETS: Seller shall execute and deliver to Buyer good and
sufficient bills of sale to transfer to Buyer title to the purchased assets set
forth in Exhibit "A" and all upgrades acquired prior to closing, and Seller
shall execute and deliver to Buyer good and sufficient assignments and consents
to transfer the contracts, agreements, leases, licenses, permits, consents,
authorizations, rights and personal property set forth in Exhibit "B" and
acquired prior to closing. Buyer shall receive possession of the purchased
assets hereunder at the time of closing. Seller states, and Buyer acknowledges,
that a certain lease exists covering equipment to be herein transferred. The
Seller represents that said Lease is limited to the Wilton State Bank lease
referred to in paragraph 2(b) above. Pay out of this leases is the
responsibility of the Seller, and all such equipment shall be transferred by the
Seller to the Buyer, free and clear of all liens, attachments and encumbrances
3
<PAGE>
(which are limited to the specific leases referenced herein), prior to final
payment being made under paragraph 2, above
Until the purchase price is paid in full, Buyer shall not decrease the market
value of the purchased assets by damaging, destroying, or encumbering said
assets without the written consent of Seller. Nothing in this paragraph shall
prevent the Buyer from realizing tax benefits from the purchased assets.
6. CONTINGENT TAX LIABILITIES: For events occurring prior to closing, if
either a federal or state taxing agency shall, through audit or otherwise,
determine that there is due any amount owing for income, sales, use, inventory,
employment or other taxes of any name or nature from the business and amenities
sold and purchased hereunder, the amount of such assessment of tax together with
any interest and penalty thereon shall be owed by Seller. Seller shall indemnify
and hold Buyer harmless from any and all such amounts of liability.
7. ACCOUNTS RECEIVABLE AND ACCOUNTS PAYABLE:
a. Prior to closing, Seller shall pay all the accounts payable of
Seller which were incurred by Seller prior to closing and shall indemnify
and hold Buyer harmless from any payment thereof and for any obligation or
liability therefore.
b. Seller shall have and be responsible for Seller's receivables
resulting from Seller's business prior to closing.
c. Seller shall pay and shall indemnify and hold Buyer harmless from
any and all debts, accruing or based upon or arising out of facts occurring
prior to closing and connected with the business or the operations of
Seller.
8. PRORATIONS: The following shall be prorated between Seller and Buyer as
of the date of closing:
a. Rents, and
b. Utilities,
9. COVENANT AGAINST COMPETITION: As part of this sale to Buyer, Seller
shall not directly or indirectly, alone or with others, engage in a similar
business to that involved in this transaction in any capacity in Bureigh County,
Mercer County, Dunn County, or Morton County, North Dakota, for a period of five
(5) years from the date of closing. For purposes of this Agreement, "business
similar to that involved in this transaction" includes within its scope the
telephone marketing business. This provision shall be void in the event of
termination of this Agreement by Buyer.
10. EFFECTIVE DATE: The effective date of this sale shall be September 15,
1997.
11. CLOSING DATE AND PLACE: The sale will be closed at Bismarck, North
Dakota, on September 15, 1997, (the "closing date") or such other date as the
parties may agree upon, provided all of the conditions set forth in paragraph 12
below have been met.
12. CONDITIONS PRECEDENI' TO CLOSING: Buyer's obligations under this
Agreement are subject to the following conditions, which must be met at or
before the closing date:
a. The lease for the premises in which the telemarketing firm is
located in Halliday, North Dakota, shall be assigned to the Buyer by the
Seller, and Seller shall deliver to Buyer a fully executed assignment.
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b. The lease for the premises in which the telemarketing firm is
located in the City of Flasher, North Dakota, shall be assigned to the
Buyer by the Seller, and Seller shall deliver to Buyer a fully executed
assignment.
c. Seller shall execute and deliver to Buyer general warranty, bills
of sale, inventory, contracts, and rights described and attached hereto as
Exhibit "G." These bills of sale transfer title to the purchased assets to
the Buyer as of the closing date.
d. Buyer shall acquire and use the 1-800 telephone numbers assigned to
the Seller, and Seller shall deliver to Buyer the documentation deemed
necessary by Buyer to transfer said telephone numbers to Buyer.
e. Seller shall have substantially complied with and performed without
deviation materially adverse to Buyer all of the agreements and conditions
required by this Agreement to be performed or complied with by Seller on or
prior to the closing.
f. The representations made by Seller in this Agreement shall be true
and correct in all material respects on and as of the closing as though
made on and as of the closing.
g. Buyer shall have substantially compiled with and performed without
deviation materially adverse to Seller all of the agreements and conditions
required by this Agreement to be performed or complied with by Buyer on or
prior to the closing.
h. Seller shall lend every reasonable effort to assist Buyer in
obtaining full and complete contracted agreements with Seller's suppliers
and vendors, licensors, landlords, and the Cities of Bismarck, Halliday,
and Flasher, North Dakota, as well as all other licensing authorities.
i. The representations made by Buyer in this Agreement shall be true
and correct in all material respects on and as of the closing as though
made on and as of the closing.
j. Buyer is reasonably able to confirm that the Purchased Assets are
operational.
k. Seller shall execute such other documents and take such additional
actions on the Closing Date and at such other times and places before or
after the Closing Date as Buyer may reasonably request for the purpose of
carrying out the provisions and transactions contemplated by this
Agreement.
13. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS: Seller represents,
warrants and covenants, as follows:
a. Seller has good title to all of the assets, described in Exhibits
"A" and "B" in this Agreement, and the same are or will be at closing date,
free and clear of all liens, attachments and encumbrances, with the
exception of the lease described in paragraph 5, above.
b. There are no claims, disciplinary proceedings, notices to initiate
litigation, litigation, judgments, orders, investigations, or other
proceedings pending or threatened against or relating to Seller or title or
interest in any of the Purchased Assets, intended to be sold, transferred
or assumed hereunder, or which would materially affect the ownership, use
or operation of same by Buyer, and, to the best of Sellers knowledge after
diligent inquiry, there is no basis therefor.
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c. Seller has paid, or will have paid, by the closing date, all taxes,
or other charges assessed to the effective date with respect to the
property and assets to be transferred or assigned hereunder.
d. The property and assets intended to be sold, transferred or
assigned hereunder are in good operating condition, ordinary wear and tear
excepted.
e. Seller warrants that it has filed all federal income tax and all
excise, sales and income tax returns for the State of North Dakota, and all
state and local tax or employment reports and all other tax returns which
are required to be filed and that such returns are accurate and complete.
f. No representation or warranty made by Seller hi this Agreement, or
any statement or certificate furnished or to be furnished by Seller in
connection with the transaction contemplated, contains or will contain any
untrue statement, nor shall Seller omit to state a material fact necessary
to make the statements contained therein not misleading.
g. All employees of Seller, including but not limited to, those either
directly employed by Seller or hired by or through a third party for Seller
or for Seller's benefit, shall be terminated as of 12:01 a.m., on the
closing date. Seller shall be responsible for all taxes, employees' costs,
wages, salaries, benefits, workers' compensation and unemployment
compensation premiums, charges and claims to the closing date. Buyer shall
retain those employees of its choosing and be responsible for all taxes and
employee benefits thereafter.
h. All rental payments on the leases which are due and owing or will
be due and owing to the date of closing, have been or will be paid by
Seller. All leases are in full force and effect and are enforceable in
accordance with their terms, no party thereto is in material default or
breach thereunder, and the Seller has not received or sent notice of breach
or default thereunder.
i. Seller will not, between the date hereof and closing, or any
management period, without Buyer's prior written consent:
(i) Mortgage, pledge or subject to lien, charge or otherwise
encumber the assets, inventory, rights, contracts or
personal property sold, transferred or assigned hereunder;
or,
(ii) Sell or transfer any of the assets, inventory, rights,
contracts and personal property sold, transferred or
assigned hereunder except for trade-in-stock sold in the
normal course of business.
j. All utilities, amenities, and personal property shall be in good
working condition at the closing and shall be in substantial compliance
with applicable fire, zoning, building code, health or labor regulations.
That Seller has not received any formal notification of any kind of any
defects or deficiencies in said equipment, assets and personal property
from any source which have required repair and have not been repaired.
k. Without material omission, the inventory furnished by Seller to
Buyer represents a true and accurate description of all of the tangible
personal property currently used exclusively in the business.
l. All contracts, agreements, commitments and understandings, if any,
in connection with or relating to the present or future operation of the
business are listed in Exhibit "B". Seller is not now and at the closing
will not be in default under any of the contracts assigned to Buyer under
this Agreement and all are assumable by Buyer on the same terms and
conditions available to Seller.
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m. Seller now has in force adequate fire and liability insurance and
will obtain such insurance until the closing. In the event of a claim,
proceeds shall first be used to replace the lost or damaged item or items.
n. There is no litigation or claim pending or to the knowledge of
Seller or their agents, threatened against Seller which might have a
material adverse effect upon the rights, title or interest of Seller in the
property and assets to be transferred hereunder or the ownership, use or
possession of the business or said property and assets by Buyer.
o. On closing all tax assessments on the business or its assets or
property will be paid, and there will be no tax liens on any property being
transferred by this Agreement. Seller has received no notice of any
dispute.
p. This Agreement and transaction will not put Seller in default of
any loan agreement, on closing, or thereafter and Seller will not default
on any obligations after the Closing Date which relate to and/or effect
Buyer's title to, and/or right or possession of the Purchased Assets.
q. Exhibits "A" and "B" list all personal and other property used by
the business. All such property is in good and marketable condition and can
be used for its intended function in the operation of the business.
r. The business is in compliance with all applicable fire, zoning,
health, building, labor, and federal, state and local laws and regulations,
and Seller has no notice of any violation.
s. Seller has received no notice of any action or government
proceedings in eminent domain or otherwise, which would affect the subject
property, nor does Seller know of the existence of any fact which night
give rise to such proceedings.
t. Neither Seller, nor the subject property, has any obligations under
any employment, maintenance, management or service contract, except as
expressly set forth herein.
u. Seller shall continue to operate business in a normal, professional
and customary manner until closing, and during a management period, if any,
but Seller shall not substantially increase trade-in-stock, inventory, or
assets without the written consent of Buyer.
v. The income tax returns, tax statements, sales information and other
information provided to Buyer, are true, accurate and as represented by
Seller.
w. Seller is a corporation duly incorporated and validly existing and
in good standing under the laws of the State of North Dakota, and has all
requisite corporate power and authority to enter into this Agreement. This
Agreement constitutes a valid and binding obligation of Seller, enforceable
in accordance with its terms.
x. The execution, delivery, and performance of this Agreement by
Seller do not will not (1) violate any law, regulation, or statute
applicable to Seller; (2) require the consent, waiver, approval, license or
authorization of, or filing with, any person or entity other than the
consent of third parties to leases; or (3) conflict with or result in a
breach or termination of, constitute a default under, or result in the
creation of any lien charge, or encumbrance upon any of the assets of
Seller pursuant to any provision or security interest, or other agreement
or instrument, or any order, judgment, decree or any other restriction of
any kind or character, to which Seller is a party or by which Seller or its
assets may be bound.
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y. The sale and transfer of the Purchased Assets will not render
Seller insolvent (within the meaning of the Uniform Fraudulent Conveyance
Act or 11 U.S.C., Sections 101(31).
z. Seller shall have the obligation to notify Buyer immediately upon
Seller's default of any obligation under, relating to and/or affecting this
Agreement or Buyer's right, title to or interest in the Purchased Assets.
14. LIABILITIES: Buyer is assuming none of Seller's obligations, debts,
liabilities or payables, except those under contracts attached as Exhibit "B".
15. CASUALTIES: The risk of loss or damage by file, windstorm, or other
casualty to the assets, inventory and personal property to be sold, transferred
or assignment hereunder shall be upon Seller until closing. If any destruction,
loss or damage prior, to the closing date, to the assets of Seller to be sold,
transferred or assigned hereunder is suffered or sustained, then Buyer shall
have the right, upon written notice to Seller, to terminate or renegotiate this
Agreement. In the event Buyer elects not to terminate and the property is not
completely repaired, replaced, or restored prior to the designated date of
closing, Buyer may elect to postpone the closing date until such time as repairs
or restorations are completed, or to accept the property in its then condition,
in which event Seller shall assign to Buyer all the applicable insurance
coverage or proceeds.
16. INDEMNIFICAI'ION BY SELLER: Seller shall indemnify and hold Buyer
harmless against any and all liabilities, obligations, claims, debts or damage
arising out of or related to the operation or ownership of the purchased assets,
or any operations, of Seller prior to closing, or the default of the Seller
and/or Fronteer Financial Holdings of any obligation set forth herein after the
closing date.
Should any claim covered by the foregoing indemnity be asserted against Buyer,
Buyer shall notify Seller promptly and give Seller all opportunity to defend
same, and Buyer shall extend reasonable cooperation to Seller in connection with
such defense. In the event Seller fails to defend the same within a reasonable
length of time, Buyer shall be entitled to assume the defense thereof at the
Seller's cost.
Seller shall also indemnify and hold Buyer harmless with respect to any and
all claims, losses, judgments, orders, damages, liabilities (absolute,
contingent, matured, unmatured or otherwise) and expenses, contingent or
otherwise, matured or unmatured, of any nature whatsoever (including, without
limitations, settlement costs and any legal or other expenses for investigating
or defending any actions or threatened actions) (collectively, a "loss"),
reasonably incurred by Buyer in connection with or as a result of each and all
of the following, (a "breach"):
a. Any misrepresentation or breach of any representation or warranty
in this Agreement made by Seller.
b. The breach by Seller and/or Fronteer Financial Holdings, of any
covenant, agreement or obligation contained in this Agreement or any other
instrument contemplated by, related to and/or dependent on this Agreement;
c. Any misrepresentation contained in any written document or
certificate furnished by the Seller pursuant to this Agreement or in
connection with the transaction contemplated by this Agreement; and
d. Any action, liability or loss relating to and/or arising out of any
contract or arrangement, third party or otherwise (including leases
encumbering or relating to the Purchased Assets), to which Seller and/or
Fronteer Financial Holdings is a party relating to the conduct of business
or performance of obligations under this Agreement by Seller before, on or
after the Closing Date.
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Any such liability, deficiency or indemnity, shall be paid by the indemnifying
party within 30 days from the date the indemnified party notifies the
indemnifying party that it has incurred or has become subject to the referenced
liability or loss find provides the indemnifying party with documentation
demonstrating that the indemnifying party has incurred such liability or loss.
Whenever any claim shall arise for indemnification, the indemnified party
shall promptly notify the indemnifying party of the claim and, when known, the
facts constituting the basis for such claims.
If a claim by a third party is made against the indemnified party, and if
such indemnified party intends to seek indemnity with respect thereto, the
indemnified party shall promptly (and in any case within 30 days of such claim
being made) notify the indemnifying party of such claim. The indemnifying party
shall have 30 days after receipt of' such notice, or earlier depending on the
circumstances, to undertake, conduct and control through counsel of its own
choosing and at its own expense, the settlement or defense thereof, and the
indemnifyed party shall cooperate with it in connection therewith.
So long as the indemnifying party is reasonably contesting any such claim
in good faith, the indemnified party shall not pay or settle any such claim.
Notwithstanding any of the foregoing, the indemnified party shall have the right
to pay or settle any such claim, provided that in such event it shall waive any
right to indemnify therefor by the indemnifying party. If the indemnifying party
does not notify the indemnified party within 30 days after the receipt of the
indemnified party's notice of claim of indemnity hereunder that it elects to
undertake the defense thereof, or at any time indemnifying party fails to
indemnity or undertake the defense of indemnified party, the indemnified party
shall have the right to contest, settle or compromise the claim in the exercise
of its reasonable judgment (but with due regard for obtaining the most favorable
outcome reasonably likely under the circumstances, taking account of costs and
expenditures) at the expense of the indemnifying party.
All indemnification hereunder shall be effected by payment of cash or
delivery of a certified or cashier's check in the amount of the indemnified's
liability.
17. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and inure
to the benefit of the heirs, legal representative, successors, and assigns of
the parties and shall not be assigned, transferred or conveyed without the
written consent of Seller until such time that payment in full has been made. In
the event that Buyer assigns this Agreement or causes the assets, inventory or
personal property to be transferred to some other person, entity, or
corporation, the rights of Buyer hereunder may be enforced by such other person,
entity or corporation in his or its own right.
18. CONSTRUCTION: This Agreement shall be construed and enforced in
accordance the laws of the State of North Dakota and Buyer consents to venue in
the State of North Dakota of any action to enforce this Agreement,
19. NOTICE: All notices and other communications required hereunder shall
be validly given if sent by certified mail, return receipt requested, postage
prepaid, addressed as follows:
TO SELLER: Dennis Olson
P.O. Box 5542
Bismarck, ND 58502-5542
TO BUYER: Robert Schuman
Contact America
7777 Girard Avenue
Suite 206
LaJolla, California 92037
The parties may from time to time notify one another in writing of changes of
address.
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20. SURVIVAL: The terms, provisions, representations, warranties, covenants
and agreements of the parties in this Agreement and those delivered in
connection with the closing of the transaction contemplated herein shall survive
the closing.
21. BUYER'S REMEDIES: Buyer shall have all of his remedies in law and
equity, and such remedies shall be cumulative and not exclusive. Seller and
Buyer recognize that the assets to be purchased hereunder may be inadequate to
place Buyer in the position he would have been in had this Agreement been fully
performed, and therefore Buyer shall also have the right to obtain specific
performance of Seller's obligations pursuant to this Agreement. Seller does
hereby consent to the remedy of specific performance upon a breach of this
Agreement.
22. SELLER'S REMEDIES: Seller shall have all of his remedies at law and in
equity and such remedies shall be cumulative and not exclusive. In the event of
breach of this Agreement by Buyer, Buyer shall have thirty (30) days to cure
that breach. If Buyer breaches the payment provisions contained in paragraph 2,
Buyer shall be assessed a $50 per day late fee after the fifth day. Within three
(3) days after payment is past due, Seller will notify Buyer that payment is
late. Should the default not be cured by payment required under this Agreement
and all penalties after thirty (30) days, Seller, by notice to Buyer, may
declare the Agreement breached and accelerate payment and demand immediate and
full payment of the purchase price. Upon breach and failure to cure, Buyer shall
return to Seller all assets, property and rights purchased pursuant to the
Agreement and replacements thereto. The parties agree that actual damages in the
event of breach would be impractical and extremely difficult to fix and
therefore agree that the payment to date of default made by Buyer shall be
presumed to be sustained by a breach and in the event of a breach, the parties
agree Seller shall be entitled to retain all payments made prior to default as
liquidated damages.
23. INSURANCE: Buyer shall maintain in full force and effect adequate fire,
casualty and liability insurance and shall maintain such insurance until
payments under the Agreement have been made in full. Buyer shall provide proof
of insurance to Seller within 30 days after closing and yearly thereafter until
payment is made in full pursuant to the Agreement. Buyer shall name Seller as an
additional insured under the policies and, should a loss occur, the necessary
repairs as a result of the loss shall be made. If the insurance proceeds exceed
the cost of repair, any excess will be paid to Buyer. Should Buyer elect not to
repair, the insurance proceeds will be paid to Seller in amounts not to exceed
the total amount then owing.
24. COSTS AND FEES: In the event any party initiates an action to enforce
its rights under this Agreement, or for the breach of any provision of this
Agreement, the prevailing party shall recover from the non-prevailing party its
expenses, court and/or arbitration costs, including taxed and untaxed costs, and
reasonable attorney's fees whether suit or arbitration be brought or not
(collectively referred to as "Expenses"). All such Expenses shall bear interest
at the highest rate allowed under the laws of the State of North Dakota from the
date the prevailing party paid such Expenses until the date the non-prevailing
party repays such Expenses.
25. GENERAL PROVISIONS:
a. Time is of the essence of this Agreement and each and every term
and provision herein.
b. This instrument contains the entire Agreement of the parties
relating to the subject matter hereof, and the parties have made no
agreements, representations or warranties relating to the subject matter
hereof which are not set forth herein. No modification of this Agreement
shall be valid unless made in writing and signed by the parties hereto.
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c. The waiver of any of the provisions of this Agreement shall only be
effective if in writing and then only as to the particular instance
involved. The waiver of breach of any term of condition of this Agreement
shall not be deemed to constitute the waiver of any other breach of the
same or any other term or condition.
d. The paragraph headings as used herein are for ease of reference
only, and are not to be considered in the construction of this Agreement.
e. Should any provision of this Agreement or any portion thereof be
held to be void or unenforceable, the remaining provision or provisions
shall remain in full force and effect, to be read and construed as if the
void or unenforceable provisions or portions thereof were deleted.
f. As used herein the masculine, feminine or neuter gender, the
singular or plural number, shall each be allowed to include the others
whenever the context so indicates.
Entered into at Bismarck, North Dakota, the day and date first written above.
BUYER: SELLER:
CONTACT AMERICA FRONTEER MARKETING GROUP, INC.
By: /s/ Robert Schuman By: /s/ Dennis Olson
------------------------------------ ----------------------------
Robert Schuman Dennis Olson
Its: President Its: President
