EX-2
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT is made this 10th day of September 2002 by
and between FREESTAR TECHNOLOGIES, INC., a Nevada corporation
("FSTI"), having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇, and HEROYA INVESTMENTS LIMITED,
having its principal place of business at Suite 52 & 53 Victoria
House, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ("HEROYA").
RECITALS
WHEREAS, FSTI has substantial processing contracts to process online
customers as well as traditional commerce;
WHEREAS, Rahaxi is a wholly owned subsidiary of HEROYA and operates a
processor in Finland;
WHEREAS, FSTI desires to purchase Rahaxi from HEROYA but desires
additions to Rahaxi's infrastructure to meet the need of FSTI's
customers,
WHEREAS, HEROYA desires to sell Rahaxi to FSTI under agreeable terms
and considerations.
NOW, THEREFORE, for good and valuable consideration, and in
consideration of the mutual covenants and conditions herein set
forth, the receipt and sufficiency of which is hereby acknowledged,
the Parties agree as follows:
AGREEMENTS
1. Purchase and Sale. Subject to the terms and conditions contained
in this Agreement, on the Closing Date, FSTI shall purchase One
Hundred percent (100%) of Rahaxi in exchange for Four Million Three
Hundred Thousand US Dollars ($4,300,000), which shall be secured with
guarantee(s), in the form of an equivalent amount of common stock of
FSTI (the "Purchase Price"). The Purchase Price shall be payable
within 13 months from the date of closing, per the payment schedule
described in Section 2.1
2. Closing. The closing (the "Closing") of the sale and purchase of
the Shares shall take place on August 30th, 2002, or at such other
date, time or place as may be agreed upon in writing by the parties
hereto, but not later than September 10th, 2002 (the" Termination
Date"). The date of the Closing is sometimes herein referred to as
the "Closing Date.
2.1 Payments, Payment Schedule.
(a) The Purchase Price shall be paid as follows:
i. FSTI shall pay One Hundred and Fifty Thousand US Dollars to
HEROYA on the Closing Date against one share of Rahaxi
ii. FSTI shall make a second payment of One Hundred and Fifty
Thousand US Dollars to HEROYA within two months of the Closing
Date and receive a additional share of Rahaxi;;
iii. During the first quarter (which for purposes of the this
Section 2.1. a (ii)shall be defined as 105 days from the date
of receipt of the second payment), FSTI shall pay to HEROYA Five
Hundred Thousand US Dollars and receive three additional shares
of Rahaxi.
iv. During the second quarter, FSTI shall pay to HEROYA Five
Hundred Thousand US Dollars and receive four additional shares
of Rahaxi.
v. During the third quarter, FSTI shall pay to HEROYA Five
Hundred Thousand US Dollars and receive four additional shares
of Rahaxi.
vi. During the fourth quarter, FSTI shall pay to HEROYA Two
Million Five Hundred Thousand US Dollars and receive seventeen
shares of Rahaxi
(b) FSTI may pay the entire Purchase Price in full at any time.
(c) Title to the shares of Rahaxi will pass to FSTI
simultaneously with each payment as mentioned in Section 2.1. a hereabove.
(d) If FSTI fails to remit the final payment mentioned in
Section 2.1. a (vi), FSTI shall forfeit all rights hereunder to
acquire the last seventeen shares of Rahaxi but shall retain its
property on the other shares acquired pursuant to Section 2.1. a (i)
(ii) (iii) (iv) and (v).
(e) From the Closing Date until the end of the fourth quarter
of the closing Date HEROYA shall receive Ten percent (10%) of the net
profits of Rahaxi irrespective of the numbers of shares actually
acquired by FSTI.
3. Representations and Warranties of HEROYA. HEROYA hereby
represents and warrants to FSTI that:
3.1 Corporate Status. HEROYA is a privately held company and Rahaxi
is a One Hundred percent wholly owned subsidiary. The Charter
Documents and bylaws of Rahaxi that have been delivered to FSTI as of
the date hereof and are current, correct and complete.
3.2 Authorization. HEROYA has the requisite power and authority to
execute and deliver the transaction documents to which it is a party
and to perform the transactions performed or to be performed by it.
Each transaction Document executed and delivered by HEROYA has been
duly executed and delivered by HEROYA and constitutes a valid and
binding obligation of HEROYA, enforceable against HEROYA in
accordance with its terms.
3.3 Consents and Approvals. Neither the execution and delivery by
HEROYA of the Acquisition Agreement to which it is a party, nor the
performance of the transactions performed or to be performed by
HEROYA, require any filing, consent or approval, constitute a Default
or cause any payment obligation to arise.
3.4 Capitalization. The authorized capital of Rahaxi consists of 30
shares, of which 30 shares have been duly issued and are outstanding
as fully paid and non-assessable.
3.5 Financial Statements. HEROYA acknowledges that the books and
records listed as per exhibit 1 to this Agreement fairly and
correctly set out and disclose in all material respects, the
financial position of Rahaxi as at the date hereof, and all material
financial transactions of Rahaxi relating to the business have been
accurately recorded in such books and records.
3.6 Real Property. Rahaxi has the corporate power to own or lease its
property and to carry on its business; it is duly qualified as a
corporation to do business and is in good standing with respect
thereto in each jurisdiction in which the nature of the business or
the property owned or leased by it makes such qualification
necessary; and it has or will have on the Closing Date all necessary
licenses, permits, authorizations and consents to operate its
business in accordance with the terms of its business plan.
3.7 Liabilities. There are no material liabilities of Rahaxi of any
kind whatsoever, whether or not accrued and whether or not determined
or determinable, in respect of which HEROYA or FSTI may become liable
on or after the consummation of the transaction contemplated by this
agreement, other than liabilities which may be reflected on Rahaxi's
Financial Statements, liabilities disclosed or referred to in this
agreement or in the Schedules attached hereto, if any, or liabilities
incurred in the ordinary course or business and attributable to the
period since the date of Rahaxi's Financial Statements, none of which
has been materially adverse to the nature of the business, results of
operations, assets, financial condition or manner of conducting the
business.
3.8 Taxes. Rahaxi has timely filed all Tax Returns required to be
filed on or before the Closing Date and all such Tax Returns are
true, correct and complete in all respects. Rahaxi has paid in full
on a timely basis all Taxes owed by it, whether or not shown on any
Tax Return, except where the failure to file such return or pay such
taxes would not have a Material Adverse Effect. No claim has ever
been made by any authority in any jurisdiction where Rahaxi does not
file Tax Returns that Rahaxi may be subject to taxation in that
jurisdiction.
There are no ongoing examinations or claims against Rahaxi for Taxes,
and no notice of any audit, examination or claim for Taxes, whether
pending or threatened, has been received. Rahaxi has not waived or
extended the statute of limitations with respect to the collection or
assessment of any Tax.
3.9 Legal Proceedings and Compliance with Law. There is no
litigation that is pending or, to HEROYA's knowledge, threatened
against Rahaxi. To HEROYA's knowledge, there has been no default
under any laws applicable to Rahaxi, and HEROYA and/or Rahaxi has not
received any notices from any governmental entity regarding any
alleged defaults under any Laws. There has been no default with
respect to any court order applicable to Rahaxi.
3.11 Contracts. Rahaxi is not a party to or bound by any agreement
or guarantee, warranty, indemnification, assumption or endorsement or
any other like commitment of the obligations, liabilities (contingent
or otherwise) or indebtedness of any other person, firm or
corporation, or of any products related to the business which is not
accurately reflected in Schedule 1 to this agreement.
3.12 Intellectual Property. Rahaxi has good and valid title to and
ownership of all Intellectual Property (defined herein as trade
marks, trade names or copyrights, patents, domestic or foreign)
necessary for the Rahaxi business and operations (as now conducted
and as proposed to be conducted). There are no outstanding options,
licenses or agreements of any kind to which Rahaxi is a party or by
which it is bound relating to any Intellectual Property, whether
owned by Rahaxi or another person. To the Knowledge of HEROYA, the
business of Rahaxi as formerly and presently conducted did not and
does not conflict with or infringe upon any Intellectual Property
right, owned or claimed by another.
3.13 Accuracy of Information. To HEROYA's knowledge, no
representation or warranty by HEROYA or Rahaxi in this Acquisition
Agreement, contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the statements
contained herein or therein not misleading in light of the
circumstances under which such statements were made.
4. Representations and Warranties of FSTI. FSTI hereby represents
and warrants to HEROYA as follows:
4.1 Corporate Status. FSTI is a corporation duly organized, validly
existing and in good standing under the Laws of the State of Nevada
and is qualified to do business in any jurisdiction where it is
required to be so qualified. The Charter Documents of FSTI that have
been delivered to HEROYA as of the date hereof are effective under
applicable Laws and are current, correct and complete.
4.2 Authorization. FSTI has the requisite power and authority to own
its assets and to carry on its business. FSTI has the requisite
power and authority to execute and deliver this Acquisition Agreement
to which it is a party and to perform the transactions performed or
to be performed by it. Such execution, delivery and performance by
FSTI have been duly authorized by all necessary corporate action.
Each transaction document executed and delivered by FSTI has been
duly executed and delivered by FSTI and constitutes a valid and
binding obligation of FSTI, enforceable against FSTI in accordance
with its terms.
4.3 Consents and Approvals. Neither the execution and delivery by
FSTI of this Acquisition Agreement to which it is a party, nor the
performance of the transactions performed or to be performed by FSTI,
require any filing, consent or approval, constitute a Default or
cause any payment obligation to arise.
4.4 Accuracy of Information. To FSTI's actual knowledge, no
representation or warranty by FSTI in this Acquisition Agreement or
the Offer to Purchase, and no information contained therein or
otherwise delivered by or on behalf of FSTI to any other Party in
connection with the transactions contains any untrue statement of a
material fact or omits to state any material fact necessary in order
to make the statements contained herein or therein not misleading in
light of the circumstances under which such statements were made.
4.5 FSTI has good and valid title to the common stock pledged to
HEROYA as security for the performance of this Agreement as per
Section 8.2
5. Covenants of HEROYA.
5.1 Conduct of the Business. Except as contemplated or otherwise
consented to by FSTI in writing, from the date of this Agreement and
until the Closing Date, HEROYA shall carry on Rahaxi business in the
ordinary course. HEROYA shall not amend Rahaxi Charter Documents or
bylaws; merge or consolidate with, or purchase substantially all of
the assets of, or otherwise acquire any business of, any corporation,
partnership or other business organization or business division
thereof; split, combine or reclassify its outstanding capital stock;
enter into any Contract or otherwise incur any Liability outside the
ordinary course of business; discharge or satisfy any Encumbrance or
pay or satisfy any material Liability except pursuant to the terms
thereof; compromise, settle or otherwise adjust any material claim or
litigation; make any capital expenditure involving in any individual
case more than $5,000; incur any indebtedness for borrowed money or
issue any debt securities; declare or pay any dividend or other
distribution on its capital stock; materially decrease its working
capital; increase the salaries or other compensation payable to any
employee, or take any action, or fail to take any reasonable action
within its control, as a result of which a material event would be
likely to occur. HEROYA shall preserve intact the current business
organization of Rahaxi.
5.2 Access to Information. From the date of this Agreement to the
Closing Date, HEROYA shall cause Rahaxi to give to FSTI and its
officers, employees, counsel, accountants and other representatives
access to and the right to inspect, during normal business hours, all
of the assets, records, contracts and other documents relating to
Rahaxi as the FSTI may reasonably request. FSTI shall not use such
information for purposes other than in connection with the
transactions contemplated by this Agreement and shall otherwise hold
such information in confidence until such time as such information
otherwise becomes publicly available and will sign and cause its
officers, employees, counsels, accountants and other representatives
to sign such standard and customary non-disclosure agreements as are
reasonably requested by HEROYA.
5.3 No Solicitation. From and after the date hereof until the
earlier of the Termination Date or the date of termination of this
Agreement pursuant to Section 11, without the prior written consent
of FSTI, HEROYA and Rahaxi will not, and will not authorize or permit
HEROYA Representative to, directly or indirectly, solicit, initiate
or encourage (including by way of furnishing information) or take any
other action to facilitate knowingly any inquiries or the making of
any proposal that constitutes or may reasonably be expected to lead
to an acquisition Proposal from any Person, or engage in any
discussion or negotiations relating thereto or accept any Acquisition
Proposal. If HEROYA receives any such inquiries, offers or proposals
shall (a) notify FSTI orally and in writing of any such inquiries,
offers or proposals (including the terms and conditions of any such
proposal and the identity of the person making it), within 48 hour of
the receipt thereof, (b) keep FSTI informed of the status and details
of any such inquiry, offer or proposal, and (c) give FSTI five days'
advance notice of any agreement to be entered into with, or any
information to be supplied to, any Person making such inquiry, offer
or proposal. As used herein, "Acquisition Proposal" means a proposal
or offer (other than pursuant to this Agreement) for a tender or
exchange offer, merger, consolidation or other business combination
involving any or any proposal to acquire in any manner a substantial
equity interest in, or all or substantially all of the Assets.
Notwithstanding the foregoing, the HEROYA will remain free to
participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate
in any other manner, any effort or attempt by any Person to do or
seek any of the foregoing to the extent their fiduciary duties may require.
5.4 Transfer of title to Rahaxi's shares. HEROYA shall, and shall
cause Rahaxi to, take such reasonable steps as may be necessary or
appropriate, in the judgment of FSTI, so that FSTI shall be placed in
actual possession of the shares of Rahaxi acquired by FSTI pursuant
to Section 2.1 of this Agreement
6. Covenants of FSTI. Fulfillment of Closing Conditions. At and
prior to the Closing, FSTI shall use commercially reasonable efforts
to fulfill the conditions specified in this Agreement to the extent
that the fulfillment of such conditions is within its control. In
connection with the foregoing, it will (a) refrain from any actions
that would cause any of its representations and warranties to be
inaccurate in any material respect as of the Closing, (b) execute and
deliver the applicable agreements and other documents referred to
herein, (c) comply in all material respects with all applicable Laws
in connection with its execution, delivery and performance of this
Agreement and the transactions contemplated hereunder, (d) use
commercially reasonable efforts to obtain in a timely manner all
necessary waivers, consents and approvals required under any Laws,
Contracts or otherwise, and (e) use commercially reasonable efforts
to take, or cause to be taken, all other actions and to do, or cause
to be done, all other things reasonably necessary, proper or
advisable to consummate and make effective as promptly as practicable
the Transactions
7. Mutual Covenants.
7.1 Fulfillment of Closing Conditions. At and prior to the Closing,
each party shall use commercially reasonable efforts to fulfill, and
to cause each other to fulfill, as soon as practicable after the
conditions specified in this Agreement to the extent that the
fulfillment of such conditions is within its or his control. In
connection with the foregoing, each party will (a) refrain from any
actions that would cause any of its representations and warranties to
be inaccurate as of the Closing, and take any reasonable actions
within its control that would be necessary to prevent its
representations and warranties from being inaccurate as of the
Closing, (b) execute and deliver the applicable agreements and other
documents referred to herein, (c) comply in all material respects
with all applicable Laws in connection with its execution, delivery
and performance of this Agreement and the transactions, (d) use
commercially reasonable efforts to obtain in a timely manner all
necessary waivers, consents and approvals required under any Laws,
Contracts or otherwise, (e) use commercially reasonable efforts to
take, or cause to be taken, all other actions and to do, or cause to
be done, all other things reasonably necessary, proper or advisable
to consummate and make effective as promptly as practicable the Transactions.
7.2 Disclosure of Certain Matters. HEROYA on the one hand, and
FSTI, on the other hand, shall give FSTI and HEROYA, respectively,
prompt notice of any event or development that occurs that (a) had it
existed or been known on the date hereof would have been required to
be disclosed by such party under this Agreement, (b) would cause any
of the representations and warranties of such party contained herein
to be inaccurate or otherwise misleading, except as contemplated by
the terms hereof, or (c) gives any such party any reason to believe
that any of the conditions set forth in this Agreement will not be
satisfied prior to the Termination Date (defined below).
7.3 Public Announcements. HEROYA and FSTI shall consult with each
other before issuing any press release or making any public statement
with respect to this Agreement and the Transactions and, except as
may be required by applicable law, none of such Parties nor any other
Parties shall issue any such press release or make any such public
statement without the consent of the other parties hereto.
7.4 Confidentiality. Both FSTI and HEROYA recognize and acknowledge
that by reason of their involvement with or employment in the
business, they have or will have access to Trade Secrets relating to
the business of Rahaxi Both FSTI and HEROYA acknowledge that such
Trade Secrets are a valuable and unique asset and covenants that they
will not disclose any such Trade Secrets to any Person for any reason
whatsoever, unless such information (a) is in the public domain
through no wrongful act, (b) has been rightfully received from a
third party without restriction and without breach of this Agreement
or (c) except as may be required by law.
The terms of this Section 7.4 shall apply to FSTI and HEROYA and to
any other Person controlled by HEROYA or FSTI and any of their
respective affiliates that it or he controls to the same extent as if
they were parties hereto, and each such party shall take whatever
actions may be necessary to cause any such party or affiliate to
adhere to the terms of this Section 7.4.
In the event of any breach or threatened breach by any party of any
provision of Section 7.4, both HEROYA and FSTI shall be entitled to
injunctive or other equitable relief, restraining such party from
using or disclosing any Trade Secrets in whole or in part, or from
engaging in conduct that would constitute a breach of the obligations
of a party under Section 7.4. Such relief shall be in addition to and
not in lieu of any other remedies that may be available, including an
action for the recovery of Damages, all of which may be sought only
in accordance with the arbitration provisions of this Agreement.
If the Transactions are not consummated, each party shall treat all
information obtained in its investigation of another party or any
affiliate thereof, and not otherwise known to them or already in the
public domain, as confidential and shall not use or otherwise
disclose such information to any third party and shall return to such
other party or affiliate all copies made by it or its representatives
of Confidential Information provided by such other party or affiliate.
8. Conditions Precedent to Obligations of HEROYA. All obligations
of HEROYA to consummate the transactions hereunder are subject to the
satisfaction prior thereto of each of the following conditions:
8.1 Representations and Warranties. The representations and
warranties of FSTI contained in this Agreement shall be true and
correct on the date hereof and (except to the extent such
representations and warranties speak as of an earlier date) shall
also be true and correct on and as of the Closing Date with the same
force and effect as if made on and as of the Closing Date.
8.2 Agreements, Conditions and Covenants. FSTI shall have performed
or complied with all agreements, conditions and covenants required by
this Agreement to be performed or complied with by it on or before
the Closing Date in particular FSTI shall have transferred to HEROYA
and validly pledged in favor of HEROYA common stock of FSTI in an
equivalent amount of USD 4'300'000 as security for the performance of
FTSI obligations under the present agreement. For the purpose of this
Section 8.2, the equivalent amount shall be assessed on the value of
FSTI common stock transferred to HEROYA shall be based on FTSI share
price on NASDAQ on the day preceding the Closing Date.
8.3 Legality. No Law or Court Order shall have been enacted,
entered, promulgated or enforced by any court or governmental
authority that is in effect and has the effect of making the purchase
and sale of the Assets illegal or otherwise prohibiting the
consummation of such purchase and sale.
9. Conditions Precedent to Obligations of FSTI. All obligations of
FSTI to consummate the transactions hereunder are subject to the
satisfaction (or waiver) prior thereto of each of the following
conditions:
9.1 Representations and Warranties. The representations and
warranties of HEROYA contained in this Agreement shall be true and
correct on the date hereof and (except to the extent such
representations and warranties speak as of an earlier date) shall
also be true and correct on and as of the Closing Date, except for
changes contemplated by this Agreement, with the same force and
effect as if made on and as of the Closing Date.
9.2 Agreements, Conditions and Covenants. HEROYA shall have
performed or complied in all material respects with all agreements,
conditions and covenants required by this Agreement to be performed
or complied with by them on or before the Closing Date.
9.3 Legality. No Law or Court Order shall have been enacted,
entered, promulgated or enforced by any court or governmental
authority that is in effect and (a) has the effect of making the
purchase and sale of the Assets illegal or otherwise prohibiting the
consummation of such purchase and sale or (b) has a reasonable
likelihood of causing a Material Adverse Effect.
10. Post-Closing Obligations.
10.1 Employment Agreements. FSTI shall institute a production
operation initiative either within a separate company or with Rahaxi,
in which FSTI will employ ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ to implement
technological changes and secure acquiring banks. ▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇▇ employment agreements will substantially be in the form
of Schedule 2 to this Agreement.
10.2 Net Profits Commissions. FSTI acknowledges and agrees that
HEROYA shall be entitled to receive Thirty percent (30%) of the net
profits generated by Rahaxi from volumes introduced and to be
introduced by HEROYA in its capacity as agent. FSTI acknowledges that
such introductions may encompass traffic from Storms Commerce as
discussed to date between said company and the principals of HEROYA.
Commissions in both cases shall be calculated and payable monthly.
The client already introduced by HEROYA in Rahaxi are listed as per
Schedule 3 to this Agreement.
11. Termination
11.1 Grounds for Termination. This Agreement may be terminated at
any time before the Closing Date:
(a) By mutual written consent of HEROYA and FSTI;
(b) By HEROYA or FSTI if the Closing shall not have been
consummated on or before the Termination Date; provided, however,
that the right to terminate this Agreement shall not be available to
any party whose failure to fulfill any obligation under this
Agreement has been the cause of, or resulted in, the failure of the
Closing to occur on or before the Termination Date;
(c) By HEROYA or FSTI if a court of competent jurisdiction or
govern mental, regulatory or administrative agency or commission
shall have issued a Court Order (which Court Order the parties shall
use commercially reasonable efforts to lift) that permanently
restrains, enjoins or otherwise prohibits the Transactions, and such
Court Order shall have become final and nonappealable;
(d) By FSTI, if HEROYA shall have breached, or failed to comply
with, any of its obligations under this Agreement or any
representation or warranty made by HEROYA shall have been incorrect
when made, and such breach, failure or misrepresentation is not cured
within 20 days after notice thereof; and in either case, any such
breaches, failures or misrepresentations, individually or in the
aggregate, results or would reasonably be expected to affect
materially and adversely the benefits to be received by the FSTI
hereunder.
(e) By HEROYA, if FSTI shall have breached, or failed to comply
with any of its obligations under this Agreement or any
representation or warranty made by it shall have been incorrect when
made, and such breach, failure or misrepresentation is not cured
within 20 days after notice thereof, and in either case, any such
breaches, failures or misrepresentations, individually or in the
aggregate, results or would reasonably be expected to affect
materially and adversely the benefits to be received by the HEROYA
hereunder.
11.2 Effect of Termination. If this Agreement is terminated
pursuant to Section 11.1, the agreements contained in Section 7.4
shall survive the termination hereof and any party may pursue any
legal or equitable remedies that may be available if such termination
is based on a breach of another party.
12. General Matters.
Arbitration. All disputes arising out of our in connection with the
present agreement, including disputes on its conclusion, binding
effect, amendment and termination shall be resolved, to the exclusion
of the ordinary courts by a three-person Arbitral Tribunal in
accordance with the International Arbitration Rules of the Zurich
Chamber of Commerce.
If there are not more than two parties involved in the procedure,
each party nominates an arbitrator. The decision of the Arbitral
Tribunal shall be final, and the parties waive all challenge of the
award in accordance with Art. 192 Private International Law Statute.
12.2 Contents of Agreement. This Agreement, together with the other
Transaction Documents, sets forth the entire understanding of the
parties with respect to the transactions and supersedes all prior
agreements or understandings among the parties regarding those matters.
12.3 Amendment, Parties in Interest, Assignment, Etc. This
Agreement may be amended, modified or supplemented only by a written
instrument duly executed by each of the parties hereto. If any
provision of this Agreement shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the respective heirs, legal representatives,
successors and permitted assigns of the parties. Nothing in this
Agreement shall confer any rights upon any Person other than HEROYA
and FSTI and their respective heirs, legal representatives,
successors and permitted assigns. No party hereto shall assign this
Agreement or any right, benefit or obligation hereunder. Any term or
provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof by a written instrument duly executed
by such party.
12.4 Further Assurances. At and after the Closing, HEROYA and FSTI
shall execute and deliver any and all documents and take any and all
other actions that may be deemed reasonably necessary by their
respective counsel to complete the Transactions.
12.5 Interpretation. Unless the context of this Agreement clearly
requires otherwise, (a) references to the plural include the
singular, the singular the plural, the part the whole, (b) references
to any gender include all genders, (c) "or" has the inclusive meaning
frequently identified with the phrase "and/or," (d) "including" has
the inclusive meaning frequently identified with the phrase "but not
limited to" and (e) references to "hereunder" or "herein" relate to
this Agreement. The section and other headings contained in this
Agreement are for reference purposes only and shall not control or
affect the construction of this Agreement or the interpretation
thereof in any respect. Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified. Each
accounting term used herein that is not specifically defined herein
shall have the meaning given to it under GAAP. Any reference to a
party's being satisfied with any particular item or to a party's
determination of a particular item presumes that such standard will
not be achieved unless such party shall be satisfied or shall have
made such determination in its sole or complete discretion.
12.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be binding as of the date first
written above, and all of which shall constitute one and the same
instrument. Each such copy shall be deemed an original.
12.7 Schedules. Any items listed or described on Schedules, if any,
shall be listed or described under a caption that identifies the
Sections of this Agreement to which the item relates.
13. Notices. All notices that are required or permitted hereunder
shall be in writing and shall be sufficient if personally delivered
or sent by mail, facsimile message or Federal Express or other
delivery service. Any notices shall be deemed given upon the earlier
of the date when received at, or the third day after the date when
sent by registered or certified mail or the day after the date when
sent by Federal Express to, the address or fax number set forth
below, unless such address or fax number is changed by notice to the
other Party hereto:
If to HEROYA:
▇▇▇▇▇ ▇▇ & ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
If to FSTI:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. Tow, Esq.
FAX: ▇▇▇-▇▇▇-▇▇▇▇
14. Governing Law. This Agreement shall be construed and interpreted
in accordance with the laws of Switzerland without regard to its
provisions concerning conflict of laws.
IN WITNESS WHEREOF, this Acquisition Agreement has been executed by
the parties hereto as of the day and year first written above.
AGREED TO: AGREED TO:
FREESTAR TECHNOLOGIES, INC. HEROYA INVESTMENTS LIMITED
By:/s/ ▇▇▇▇ ▇▇▇▇ By:/s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
President Authorized Representative
List of Schedules
Schedule 1: books and records of Rahaxi
Schedule 2: draft employment agreements with ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇
Schedule 3: list of clients introduced to Rahaxi by HEROYA.
