Exhibit 10.51
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SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (the "Agreement") is effective as of April
27, 2001, is by and between ZiaSun Technologies, Inc., a Nevada corporation,
hereinafter referred to as "ZiaSun", and Momentum Media Ltd., a corporation
organized and existing under the laws of the British Virgin Islands, hereinafter
referred to as "Purchaser." This Agreement shall become effective only when
executed by all parties hereto.
RECITALS
A. Whereas, ZiaSun is the owner and holder of 999,995 shares of capital
stock of Momentum Asia, Inc., a corporation organized and existing under the
laws of the Republic of the Philippines, hereinafter referred to as "MAI."
B. Whereas, ZiaSun acquired MAI on October 7, 1999, in a stock-for-stock
exchange with Purchaser, wherein ZiaSun issued a total of 2,000,000 pre-split
restricted shares of ZiaSun and ZiaSun received 999,995 shares of MAI, whereupon
MAI became a wholly-owned subsidiary of ZiaSun.
C. Whereas, ZiaSun desires to sell to Purchaser and Purchaser desires to
purchase from ZiaSun all of ZiaSun's shares of MAI common stock consisting of
999,995 shares of capital stock, in consideration for two hundred thousand
(200,000) restricted shares of Common Stock of ZiaSun owned by Purchaser.
D. Whereas, in addition, and as a condition to the Closing of the sale of
MAI to Purchaser, MAI shall, prior to the Closing assign, transfer and deliver
to ZiaSun 130,000 restricted shares of Common Stock of ZiaSun currently owned by
MAI and represented by certificate no. 3602.
E. Whereas, as a further a condition to the Closing of the sale of MAI to
Purchaser, ZiaSun shall pay to MAI, the sum of $50,000 as full satisfaction of
all obligations of ZiaSun to MAI, and MAI will forgive the balance of any and
all obligations of ZiaSun from inter-company loans and transfers made by MAI to
ZiaSun and will execute a General Release of any and all claims which MAI might
have against ZiaSun, known or unknown and regardless of their nature or basis.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
warranties, representations, agreements and undertakings hereinafter set forth,
the parties do hereby agree as follows:
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ARTICLE 1.
CERTAIN DEFINITIONS.
1.1 For the purpose of this Agreement, the terms defined in this Article
1., shall have the meanings set forth below. All capitalized terms not defined
in this Article 1., shall have the meanings ascribed to them in other parts of
this Agreement.
1.2 "ZiaSun" shall mean ZiaSun Technologies, Inc. a Nevada corporation.
1.3 "MAI" shall mean Momentum Asia, Inc., a corporation organized and
existing under the laws of the Republic of the Philippines, a wholly owned
subsidiary of ZiaSun.
1.4 "Purchaser" shall mean Momentum Media Ltd., a British Virgin Island
corporation.
1.5 "Closing" shall mean the consummation of the transactions contemplated
hereby on the Closing Date.
1.6 "Closing Date" shall mean that date on or before May 15, 2001, or such
other date as to which the parties may agree.
1.7 "Common Stock" shall mean the Common stock, no par value, of ZiaSun.
1.8 "MAI Shares" shall mean 999,995 shares of capital stock of MAI to be
sold to and acquired by Purchaser from the ZiaSun hereunder.
1.9 "Purchase Price" shall mean two hundred thousand (200,000) restricted
shares of common stock of ZiaSun, and such other consideration as set forth
below.
ARTICLE 2.
PURCHASE AND SALE.
2.1 ZiaSun agrees to sell to Purchaser, and Purchaser agrees to buy from
ZiaSun, all issued and outstanding common stock of MAI, for the purchase price
and upon the terms, provisions and conditions hereinafter set forth.
ARTICLE 3.
PURCHASE PRICE AND CONSIDERATION.
3.1 Purchase Price and Consideration. The purchase price and consideration
for all issued and outstanding common stock of MAI shall be two hundred thousand
(200,000) restricted shares of Common Stock of ZiaSun, free of any liens,
pledges or encumbrances of any kind.
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3.2 Additional Consideration by MAI. In addition to the Purchase Price to
be paid by Purchaser as set forth in Section 3.1 above, and as a condition to
Closing, MAI, shall, prior to Closing:
3.2.1 Assign, transfer, convey and deliver to ZiaSun, free and clear
of any liens, pledges and encumbrances of any kind, 130,000 restricted
shares of Common Stock of ZiaSun owned by MAI and represented by ZiaSun
certificate no. 3602, along with an Irrevocable Stock Power duly executed
by MAI in favor of ZiaSun, which shares MAI authorizes and instructs
ZiaSun's transfer agent to cancel at the request of ZiaSun;
3.2.2 Forgive any and obligations of ZiaSun to MAI, in consideration
of the payment by ZiaSun of the sum of $50,000 to MAI, the amount of which
ZiaSun shall deliver to MAI upon Closing, and MAI to and execute a General
Release of all Claims in favor of ZiaSun.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES BY ZIASUN.
4.1 As a material inducement to Purchaser to enter into this Agreement,
ZiaSun represents and warrants to Purchaser that as of the date hereof:
4.1.1 Organization and Good Standing. MAI is duly organized and
existing in good standing under the laws of the Republic of the
Philippines. MAI is not presently engaging in business in any other
jurisdiction and is not qualified as a foreign corporation nor authorized
to do business in other jurisdictions. MAI has the corporate power to own
its properties and to carry on its business as now conducted and as they
are proposed to be conducted;
4.1.2 Authorization. The execution, delivery and performance by ZiaSun
of this Agreement and the execution, delivery and performance by ZiaSun
and/or MAI of each related agreement to which ZiaSun and/or MAI is a party
(a) are within ZiaSun's or MAI's power and authority, (b) have been duly
authorized by all necessary corporate proceedings, as applicable, and (c)
do not conflict with or result in any breach of any provision or of the
creation of any lien or encumbrance upon any of the property of MAI or
require any consent or approval pursuant to the Articles of Incorporation
or bylaws of MAI or any law, regulation, order, judgment, writ, injunction,
license, permit, agreement or instrument applicable to ZiaSun or MAI;
4.1.3 Enforceability. The execution and delivery of this Agreement by
ZiaSun and the execution and delivery by ZiaSun and MAI of each related
agreement to which it is a party, will result in legally binding
obligations of ZiaSun, enforceable against each of ZiaSun and MAI in
accordance with the respective terms and provisions hereof and thereof,
except to the extent that (a) such enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditor's rights, and (b) the
availability of the remedy of specific performance or injunctive or other
equitable relief will be subject to the discretion of the court before
which any proceeding therefor may be brought;
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4.1.4 Governmental Approvals. Except as set forth in Exhibit 4.1.4
hereto, the execution, delivery and performance by ZiaSun of this Agreement
and the execution and delivery by ZiaSun and MAI of each related agreement
to which it is a party, do not require the approval or consent of, or any
filing with, any governmental authority or agency.
4.2 Capitalization.
4.2.1 Capital Stock. The authorized capital stock of MAI consists
solely of 4,000,000 shares of capital stock, P$1.00 Par Value per share
(the "MAI Common Stock"), of which one million (1,000,000) shares are
issued and outstanding, fully paid and non-assessable.
4.2.2 Options, Etc. There are no outstanding rights (either preemptive
or other) or options to subscribe for or purchase any shares of MAI, or any
securities convertible into exchangeable for its capital stock.
4.3 Reports and Financial Statements. Purchaser has heretofore been
furnished with complete and correct copies of the un-audited balance sheet,
statements of operations and cash flows of MAI, as of December 31, 2000, a copy
of which is attached hereto as Exhibit 4.3. Purchaser accepts the financial
statements of MAI "As-Is" and accepts any adjustments that may result thereto.
4.4 Title to Assets; Leases. To the best of ZiaSun's knowledge, except as
disclosed herein or set forth on Exhibit 4.4, attached hereto, MAI owns all of
its assets shown on the MAI Financial Statements free and clear of all liens and
encumbrances and enjoys peaceful and undisturbed possession of all leased real
property on which the facilities are currently situated, and all such leases are
valid and in full force and effect.
4.5 Related Agreements. To the best of ZiaSun's knowledge, Purchaser has
heretofore or simultaneously herewith been furnished with complete and correct
copies of all the related agreements and all other agreements, instruments and
documents entered into in connection therewith. This Agreement and the related
agreements are the only material agreements relating to the stock purchase and
the transactions contemplated hereby to which MAI is a party. MAI is not in
default on any of its obligations under this Agreement or any related agreement.
4.6 Litigation. To the best of ZiaSun's knowledge, except as set forth and
described on Exhibit 4.6, there is no pending or threatened litigation or other
proceeding before any court, board or other governmental or administrative
agency or arbitrator, to which MAI is or would be a party. No such pending or
threatened litigation or other proceeding, individually or in the aggregate, is
reasonably likely to result in any final judgment or liability which, after
giving effect to any applicable insurance, could result in a material adverse
change in the business, assets, financial condition or prospects of MAI No
judgment, decree or order of any court, board or other governmental or
administrative agency or arbitrator has been issued against or binds MAI or its
assets.
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4.7 Tax Returns. To the best of ZiaSun's knowledge, except as set forth on
Exhibit 4.7, hereto, MAI has filed all tax returns and reports which are
required to be filed with any foreign, federal, state or local governmental
authority or agency and has paid, or made adequate provision for the payment of,
all assessments received and all taxes which have or may become due under
applicable foreign, federal, state or local governmental law or regulations with
respect to the periods in respect of which such returns and reports were filed.
Except as set forth on Exhibit 4.7, hereto, MAI knows of no additional
assessments since the date of such returns and reports, and there will be no
additional assessments with respect to the periods for which such returns and
reports were filed for which adequate reserves appearing on the balance sheets
referred to in paragraph 4.3, have not been established. Purchaser acknowledges
that Purchaser has been made aware that there exists a potential income tax
liability for the fiscal years 1998 of approximately $20,000 and 1999 of
approximately $30,000. Purchaser accepts said tax liability as part of MAI,
along any penalties and adjustments that may result thereto.
4.8 Liabilities, Indebtedness and Liens. To the best of ZiaSun's knowledge,
based on representations and advice from MAI, MAI has certain liabilities, liens
and trade payables due and owing which will be approximately $364,452.04, as of
March 31, 2001, as set forth on Exhibit 4.8, hereto. Additionally, MAI's
semi-monthly payroll expense is approximately $6,400. MAI also has other
reoccurring operating costs and expenses.
4.9 Governmental Regulations. MAI is not a "holding company", or a
"subsidiary company" of a "holding company" or an "affiliate" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935; MAI is not a "registered investment company", or an "affiliated person" or
a principal underwriter of a "registered investment Company", as such terms are
defined in the Investment Company Act of 1940, as amended.
4.10 Disclosure. To the best of ZiaSun's knowledge, no representation,
warranty or statement made by ZiaSun or MAI in this Agreement, any related
agreement or any agreement, certificate, statement or document furnished by or
on behalf of ZiaSun or MAI in connection herewith or therewith contains any
untrue statement of material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein, in light of the
circumstances in which they were made, not misleading.
4.11 AS-IS" Sale. ZiaSun makes no representation or warranty, either
expressed or implied, with respect to the business, assets, liabilities and
obligations of MAI, and Purchaser accepts MAI "AS-IS", in its present condition
and status of operations, subject to any and all claims, liabilities and
obligations, if any, that may result thereto.
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ARTICLE 5.
REPRESENTATIONS AND WARRANTIES BY PURCHASER
5.1 As a material inducement to ZiaSun to enter into this Agreement,
Purchaser represents and warrants to ZiaSun that as of the date hereof:
5.1.1 Authorization. The execution, delivery and performance by the
Purchaser of this Agreement and each related agreement to which it is a
party, (a) are within the Purchaser's power and authority, (b) have been
duly authorized by all necessary proceedings, and (c) do not conflict with
or result in any breach of any provision or of the creation of any lien
upon any of the property of the Purchaser or require any consent or
approval that has not been obtained or will not be obtained before Closing,
and do not violate any law, regulation, order, judgment, writ, injunction,
license, permit, agreement or instrument.
5.1.2 Enforceability. The execution and delivery of this Agreement by
the Purchaser and each related agreement to which it is a party, will
result in legally binding obligations of the Purchaser enforceable against
it in accordance with the respective terms and provisions hereof and
thereof, except to the extent that (a) such enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating
to or affecting generally the enforcement of creditor's rights, (b) the
availability of the remedy of specific performance or injunctive or other
equitable relief will be subject to the discretion of the court before
which any proceeding therefore may be brought.
5.1.3 Governmental Approvals. Except as set forth on Exhibit 5.1.3,
hereof, the execution, delivery and performance by the Purchaser of this
Agreement do not require the approval or consent of, or any filing with,
any governmental authority or agency.
5.1.4 Business. Prior to and at the Closing Date, the Purchaser will
not have conducted any business or incurred any liabilities that shall have
a material adverse impact on Purchaser's ability to fulfill its obligations
hereunder.
5.1.5 Solvency. Prior to, upon and immediately after the consummation
of the transactions contemplated hereby and by the related agreements,
Purchaser is solvent, has tangible and intangible assets having a fair
value in excess of the amount required to pay his probable liabilities on
his existing debts as they become absolute and matured and has access to
adequate capital for the conduct of his business and the ability to pay his
debts from time to time incurred in connection therewith as such debts
mature.
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5.1.6 Title to Assets; Leases. Purchaser enjoys peaceful and
undisturbed possession to all of Purchaser's assets.
5.1.7 Defaults. The Purchaser is not in default under any provision
any franchise, contract, agreement, lease or other instrument to which
Purchaser is a party or by which Purchaser or Purchaser's property is bound
or in violation of any law, judgment, decree or governmental order, rule or
regulation.
5.1.8 Representations and Warranties. All representations and
warranties made by the Purchaser in any of the related agreements are true
and correct as of the date hereof with the same force and effect as though
made on and as of the date hereof, and such representations and warranties
are hereby confirmed to you and made representations and warranties of the
Purchaser hereunder as fully as if set forth herein.
5.1.9 Related Agreements. This Agreement and the related agreements
are the only material agreements relating to the stock purchase and the
transactions contemplated hereby to which the Purchaser is a party. The
Purchaser is not in default on any of its obligations under this Agreement
or any related agreements.
5.1.10 Litigation. There is no pending or threatened litigation or
other proceeding before any court, board or other governmental or
administrative agency or arbitrator, to which Purchaser is a party, which
is reasonably likely to result in any final judgment or liability which
could result in a material adverse change in the business, assets,
financial condition or prospects of the Purchaser.
5.1.11 Tax Returns. Purchaser has filed all tax returns and reports
which are required to be filed with any foreign, federal, state or local
governmental authority or agency and has paid, or made adequate provision
for the payment of, all assessments received and all taxes which have or
may become due under applicable foreign, federal, state or local
governmental law or regulations with respect to the periods in respect of
which such returns and reports were filed. The Purchaser knows of no
additional assessments since the date of such returns and reports, and
there will be no additional assessments with respect to the periods for
which such returns and reports were filed for which Purchaser did not have
adequate reserves and Purchaser has made adequate provision for all current
taxes.
5.1.12 Disclosure. No representation, warranty or statement made by
Purchaser in this Agreement, any related agreement or any agreement,
certificate, statement or document furnished by or on behalf of Purchaser
in connection herewith contains any untrue statement of material fact or
omits to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances in which they
were made, not misleading.
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5.1.13 Access to Financial Reports. ZiaSun shall have full and
complete access to any and all financial information and records, of MAI up
to March 31, 2001, as required by ZiaSun, in order for ZiaSun and its
independent auditors to prepare the requisite consolidated financial
statements for the quarter ended March 31, 2001 and the fiscal year ending
December 31, 2001.
5.1.14 Acceptance of MAI Liabilities and "AS-IS" Sale. Purchaser
acknowledges that Purchaser is aware of the liabilities and of MAI as set
forth in Section 4.8 above, and Exhibit 4.8, hereto. Purchaser hereby
accepts full responsibility for any and all liabilities, liens and debts of
MAI. Purchaser acknowledges and understands that ZiaSun makes no
representation or warranty, either expressed or implied, with respect to
the business, assets, liabilities and obligations of MAI, and Purchaser
accepts MAI "AS-IS", in its present condition and status of operations,
subject to any and all claims, liabilities and obligations now existing or
which may arise in the future. In this respect, Purchaser confirms that
Purchaser is relying solely upon Purchaser's investigation and review of
the present condition of MAI.
ARTICLE 6.
CLOSING.
6.1 The closing of this transaction shall be held at the offices of ZiaSun
Technologies, Inc., located at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx,
Xxxxxxxxxx 00000, on or before May 15, 2001, or at such other place and time as
is mutually agreeable to the parties, or by FAX and Federal Express.
6.2 ZiaSun's Deliveries at Closing. On the Closing date or such time period
as set forth below, ZiaSun shall deliver the following items:
6.2.1 To Momentum Media, one or more certificate(s) representing
999,995 shares of capital stock of MAI, issued in the name of Purchaser;
6.2.2 To Momentum Media, all minute books and stock record books of
MAI;
6.2.3 To Momentum Media, certified resolutions of the Board of
Directors of MAI authorizing the transactions contemplated hereby; and
6.2.4 To Momentum Media, all other instruments and agreements not
herein specifically provided for but which are reasonably necessary or
desirable to effectuate the closing hereunder.
6.2.5 To MAI, the sum the sum of $50,000 as full satisfaction of all
obligations and loans payable by ZiaSun to MAI.
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6.3 MAI Deliveries. On or prior to the Closing Date as set forth below, MAI
shall deliver, or cause to be delivered, to ZiaSun, the following:
6.3.1 The original ZiaSun stock certificate no. 3602, representing
130,000 restricted shares of Common Stock of ZiaSun held by MAI, along with
a duly executed Irrevocable Stock Power in favor of ZiaSun Technologies,
Inc., which shares MAI authorizes and instructs ZiaSun's transfer agent to
cancel at the request of ZiaSun;
6.3.2 A duly executed General Release of all Claims in favor of ZiaSun
under which MAI releases ZiaSun of any and all obligations and claims, both
known and unknown, if any, whatsoever.
6.3.3 Any and all other instruments not herein specifically provided
for but which are reasonably necessary or desirable to effectuate the
closing hereunder.
6.4 Purchaser's Deliveries. On the Closing Date within such time period as
set forth below, Purchaser shall deliver, or cause to be delivered, to ZiaSun,
the following:
6.4.1 A certificate representing 200,000 restricted shares of the
Common Stock of ZiaSun Technologies, Inc., registered in the name of
ZiaSun, free of any liens, pledges or encumbrances of any kind.
6.4.2 A duly executed Resolution of the Board of Directors or other
governing body of Purchaser, authorizing the execution and delivery of this
Agreement and the 200,000 shares of common stock of ZiaSun to ZiaSun.
6.4.3 Any and all other instruments not herein specifically provided
for but which are reasonably necessary or desirable to effectuate the
closing hereunder.
ARTICLE 7.
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
7.1 The obligations of Purchaser hereunder are subject to the following
conditions, any of which may be waived in writing by Purchaser:
7.1.1 Representation and Warranties True at Closing. The
representations and warranties of the ZiaSun contained in this Agreement
shall have been true and correct when made and shall be true and correct on
the Closing Date with the same effect as if made on such date, except to
the extent that such representations and warranties are rendered inaccurate
by reason of transactions contemplated hereby.
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7.1.2 Performance of Agreements and Conditions. ZiaSun shall have
performed and complied with all agreements and conditions required by this
Agreement to be performed and complied with by MAI and ZiaSun prior to or
at the Closing Date.
7.1.3 Deliveries. ZiaSun shall have delivered to Purchaser all
consideration, certificates and documents to be delivered pursuant to
Article 6., above.
7.1.4 No Injunction. On the Closing Date there shall not be in effect
any injunction, writ, preliminary restraining order of any nature issued by
a court or other governmental body or agency directing that the
transactions provided for herein not be consummated as herein provided, nor
shall there be any litigation or proceeding pending or threatened in
respect of the transactions contemplated hereby.
7.1.5 Instruments of Transfer and Other Documents. ZiaSun shall have
delivered to Purchaser instruments of transfer which vest in Purchaser good
and marketable title to the Shares as required herein and shall have
delivered all other instruments, certificates and other documents required
to be delivered hereunder.
7.1.6 Necessary Approvals. The execution and delivery of this
Agreement and the terms thereof and all corporate and other action
necessary or required in order to effect the fulfillment of the obligations
of MAI and the ZiaSun hereunder at or prior to the Closing Date shall have
been approved by all necessary governmental bodies or agencies and all
consents of any person contemplated by this Agreement to be obtained prior
to the Closing shall have been obtained.
7.2 ZiaSun represents and warrants that it has not caused, and it covenants
and agrees that it shall not cause, any event that would prevent the
satisfaction of all of the conditions set forth in Article 8., of this
Agreement. ZiaSun covenants and agrees to take all action reasonably required on
its part to satisfy such conditions.
ARTICLE 8.
CONDITIONS PRECEDENT TO OBLIGATIONS OF ZIASUN
8.1 The obligations of ZiaSun hereunder are subject to the following
conditions, any of which may be waived in writing by ZiaSun:
8.1.1 This Agreement; Related Agreements. This Agreement and any
related agreements shall have been executed and delivered, shall be in full
force and effect and no term or condition hereof or thereof shall have been
amended, modified or waived except with ZiaSun's prior written consent. All
covenants, agreements and conditions contained herein or in any related
agreements which are to be performed or complied with on or prior to the
Closing Date, other than by ZiaSun or MAI, shall have been performed or
complied with (or waived with ZiaSun's prior written consent) in all
material respects.
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8.1.2 Related Conditions Satisfied. All conditions to purchase as set
forth in Article 5, have been satisfied as of the Closing Date, except to
the extent to be fulfilled by MAI.
8.1.3 Deliveries by Purchaser. Purchaser shall have delivered to
ZiaSun all consideration, certificates and documents to be delivered
pursuant to Article 6., above.
8.1.4 Deliveries by MAI. MAI shall have delivered to ZiaSun all
consideration, certificates and documents to be delivered pursuant to
Section 6.3 above.
8.1.5 Representations and Warranties True at Closing. The
representations and warranties of Purchaser contained in this Agreement
shall have been true and correct when made and shall be true and correct on
the Closing Date with the same effect as if made on such date, and
Purchaser shall have delivered a Certificate to such effect to ZiaSun.
8.1.6 Performance of Agreement and Conditions. Purchaser shall have
performed and complied with all agreements and conditions required by this
Agreement to be performed or complied with by Purchaser prior to or at the
Closing Date Purchaser shall have delivered the Purchase Price to ZiaSun at
the Closing in the form provided hereby and shall have satisfied all other
financial obligations as set forth herein.
8.1.7 No Injunction. On the Closing Date, there shall not be in effect
any injunction, writ, preliminary restraining order or any order of any
nature issued by a court or other governmental body or agency directing
that the transactions provided for herein not be consummated as herein
provided, nor shall there be any litigation or proceeding pending or
threatened with respect to the transactions contemplated hereby.
8.1.8 Necessary Approvals. The execution and delivery of this
Agreement and the Exhibits hereto and all other action necessary or proper
to effectuate the fulfillment of the obligations of Purchaser to be
performed hereunder in or prior to the Closing Date shall have been duly
authorized and approved, to the extent required by law.
(a) The execution and delivery of the documents and items set
forth herein.
(b) This Agreement has been duly executed and delivered by
Purchaser.
8.2 Purchaser. Purchaser represents and warrants that it has not caused,
and it covenants and agrees that it shall not cause, any event that would
prevent the satisfaction of all of the conditions set forth in this Agreement.
Purchaser covenants and agrees to take all action reasonably required on its
part to satisfy such conditions.
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ARTICLE 9.
INDEMNIFICATION AND HOLD HARMLESS
9.1 Indemnification of ZiaSun by Purchaser. Purchaser hereby agrees to
indemnify, defend and hold ZiaSun harmless against and with respect to any and
all claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties and reasonable
attorney fees, that it shall incur or suffer, which arise out of, result or
relate to any act of MAI, or of Purchaser, their respective officers, directors,
agents, representatives, and employees from any claim whatsoever, including
without limitation any and all liabilities of MAI set forth in Section 4.8 and
Exhibit 4.8, hereto, now existing or occurring in the future.
9.2 Indemnification of MAI by Purchaser. Purchaser hereby agrees to
indemnify, defend and hold MAI and its officers, directors and attorneys,
harmless against and with respect to any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorney fees, that they shall
incur or suffer, which arise out of, result or relate to any act of Purchaser,
their respective officers, directors, agents, representatives, and employees
from any claim whatsoever, including the failure of the Purchaser to pay and
satisfy any and all liabilities of MAI set forth in Section 4.8 and Exhibit 4.8,
hereto, now existing or occurring in the future.
9.3 Notice and Opportunity to Defend. If there occurs an event which any
Party asserts is an indemnifiable event, the Party seeking indemnification shall
notify the Party obligated to provide indemnification (the "Indemnifying Party")
promptly. If such event involves (i) any claim or (ii) the commencement of any
action or proceeding by a third person, the Party seeking indemnification will
give such Indemnifying Party written notice of such claim or the commencement of
such action or proceeding. Such notice shall be a condition precedent to any
liability of the Indemnifying Party hereunder. Such Indemnifying Party shall
have a period of thirty (30) days within which to respond thereto. If such
Indemnifying Party does not respond within such thirty (30) day period, such
Indemnifying Party shall be obligated to compromise or defend, at its own
expense and by counsel chosen by the Indemnifying Party shall provide reasonably
satisfactory to the Party seeking indemnity, such matter and the Indemnifying
Party shall provide the Party seeking indemnification with such assurances as
may be reasonably required by the latter to assure that the Indemnifying Party
will assume, and be responsible for, the entire liability issue. If such
Indemnifying Party does not respond within such thirty (30) day period and
rejects responsibility for such matter in whole or in part, the Party seeking
indemnification shall be free to pursue, without prejudice to any of its rights
hereunder, such remedies as may be available to such Party under applicable law.
The Party seeking indemnification agrees to cooperate fully with the
Indemnifying Party and its counsel in the defense against any such asserted
liability. In any event, the Party seeking indemnification shall have the right
to participate at its own expense in the defense of such asserted liability. Any
compromise of such asserted liability by the Indemnifying Party shall require
the prior written consent of the Party seeking indemnification. If, however, the
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Party seeking indemnification refuses its consent to a bona fide offer of
settlement which the Indemnifying Party wishes to accept, the Party seeking
indemnification may continue to pursue such matter, free of any participation by
the Indemnifying Party, at the sole expense of the Party seeking
indemnification. In such event, the obligation of the Indemnifying Party to the
Party seeking indemnification shall be equal to the lesser of (i) the amount of
the offer of settlement which the Party seeking indemnification refused to
accept plus the costs and expenses of such Party prior to the date the
Indemnifying Party notifies the Party seeking indemnification of the offer of
settlement and (ii) the actual out-of-pocket amount the Party seeking
indemnification is obligated to pay as a result of such Party's continuing to
pursue such an offer. An Indemnifying Party shall be entitled to recover from
the Party seeking indemnification any additional expenses incurred by such
Indemnifying Party as a result of the decision of the Party seeking
indemnification to pursue such matter.
9.4 The obligations under Article 9 shall survive the Closing hereunder and
Termination of this Agreement. ZiaSun and MAI shall promptly notify the
responsible party (i.e. the Purchaser) of the existence of any claim, demand or
other matter to which such indemnification obligations would apply, and shall
give a reasonable opportunity to defend the same at their own expense and with
counsel of their own selection; provided, if the Purchaser fails to defend the
same, ZiaSun or MAI, as the case may be, shall have the right to contract and
defend the same, and in any event Purchaser, ZiaSun and MAI shall at all times
also have the right fully to participate in the defense of, and to compromise or
settle in good faith the claim or other matter on behalf, for the account and at
the risk of the Purchaser. If the claim is one that cannot by its nature be
defended solely by Purchaser, then ZiaSun or MAI shall make available all
information and assistance that Purchaser may reasonably request.
ARTICLE 10.
ACCESS TO INFORMATION
10.1 From the date hereof until the Closing Date, Purchaser, through its
employees, accountants, attorneys and other representatives, may make such
investigation of the financial and legal condition, business, operations and
properties of MAI as it may deem necessary or advisable, and ZiaSun agrees to
cause MAI to make available to such persons all records and other information
and data, including corporate records and copies of documents, as Purchaser may
reasonably request, and to have its personnel cooperate with Purchaser's
representatives. Such investigation shall be made at reasonable hours so as not
to interfere with the operations of MAI. In the event that the transactions
contemplated hereby are not consummated, all documents obtained by Purchaser
from MAI shall be promptly returned to them and all information obtained by
Purchaser concerning MAI shall be kept strictly confidential and shall not be
used for competitive purposes.
13
ARTICLE 11.
OPERATION OF THE BUSINESS PENDING CLOSING.
11.1 Except as otherwise provided herein, between the date of this
Agreement and the Closing Date, ZiaSun and MAI shall operate the businesses of
MAI in such a manner as to keep intact the business organization of MAI keep
available the services of the employees and preserve its present relations with
the suppliers and customers.
ARTICLE 12.
BROKERAGE.
12.1 Each party represents and warrants to the others that no person or
persons assisted in or brought about the negotiation of this Agreement in the
capacity of broker, agent, finder or organizer on behalf of it. Each party
("First Party") agrees to indemnify and hold harmless the others from any claim
asserted against the others for a brokerage or agent's or finder's or
originator's commission or compensation pertaining to the transactions
contemplated by this Agreement by any person purporting to have acted on behalf
of First Party.
ARTICLE 13.
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
13.1 All representations, warranties and agreements by ZiaSun, MAI, or the
Purchaser pursuant hereto shall survive the closing of this transaction and
shall not be affected by any investigation at any time made by or on behalf of
any party.
ARTICLE 14.
TERMINATION PRIOR TO THE CLOSING.
14.1 This Agreement shall terminate and be of no further force or effect
between the parties hereto except as to liability for breach or default of any
covenant, agreement, representation, warranty, duty or obligation occurring or
arising prior to the date of termination, upon the occurrence of any of the
following:
14.1.1 Immediately prior to Closing, the Purchaser has given notice to
ZiaSun of the material breach or default by MAI or ZiaSun in the
performance of any covenant, agreement, representation, warranty, duty or
obligation hereunder, and provided that no such termination shall be
effective if, prior to Closing, the breaching party shall have fully and
completely corrected and cured the grounds for the termination as set forth
in said notice of termination.
14.1.2 Immediately prior to Closing, ZiaSun has given notice to
Purchaser of material breach or default in the performance of any covenant,
agreement, representation, warranty, duty or obligation of Purchaser
hereunder, and provided that no such termination shall be effective, if
prior to Closing the Purchaser shall have fully and completely corrected
and cured the grounds for the termination as set forth in said notice of
termination.
14
14.2 Notwithstanding anything to the contrary contained herein, no party
hereto shall have the right to terminate this Agreement due to its own breach or
because of any immaterial breach by any other party hereto or any covenant,
agreement, representation, warranty, duty or obligation hereunder.
14.3 No termination of this Agreement for any reason or in any manner shall
release, or be construed as so releasing, any party hereto from any liability or
damage to any other party hereto arising out of, in connection with or otherwise
relating to, directly to, directly or indirectly, said party's breach, default,
or failure in performance of any of its covenants, agreements, duties or
obligations arising hereunder, or any of its misrepresentations of any
representations or warranty herein contained.
ARTICLE 15.
MISCELLANEOUS
15.1 Payment of Expenses. ZiaSun, MAI and Purchaser shall each pay all of
their own respective expenses incident to the preparation, execution and
consummation of this Agreement.
15.2 Binding Agreement. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by and
against the parties hereto and their respective successors, assigns,
transferees, heirs, representatives and estates.
15.3 Notices. Any notice or other communication required or permitted
hereunder shall be expressed in writing and sent by certified or registered
mail, return receipt requested, to their respective parties at the following
addresses, or at such other addresses as the parties shall designate by written
notice to be the other:
If to the Purchaser, addressed to:
---------------------------------
Momentum Media Ltd.
x/x Xxxxx Xxxxxx
X.X. Xxx 000
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, XX 00000
If to MAI, addressed to:
-----------------------
Xx. Xxxx Xxxxxxxxx
Momentum Asia, Inc.
x/x Xxxxxxx Xxxx X. Xxxx XXX, Xxx.
000 Xxx Xxxxxxxxxxx Xxxx
Xxx Xxxxxx Xxxxxx
1605 Ortigas Centre
Pasig City
Philippines
15
If to the ZiaSun, addressed to:
------------------------------
Xx. Xxxxx X. Xxxxxxx
President and COO
ZiaSun Technologies, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx xxxxx, XX 00000
15.4 Article Headings. The Article headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15.5 Exhibits. All Exhibits referred to in this Agreement shall be attached
hereto and are hereby incorporated herein.
15.6 Counterparts. This Agreement may be executed in any one or more
counterparts, all of which taken together shall constitute one instrument.
15.7 Cooperation. Each party shall cooperate and use its best efforts to
consummate the transactions contemplated herein. In addition, each party shall
cooperate and take such action and execute such other and further documents as
may be reasonably requested from time to time after the Closing Date by any
other party to carry out the terms and provisions and intend of this Agreement.
15.8 Gender. Wherever the context of this Agreement so requires or permits,
the masculine herein shall include the feminine or the neuter, the singular
shall include the plural, and the term "person" shall also include "corporation"
or other business entity.
15.9 Facsimile Signatures. It is expressly agreed that the parties may
execute this Agreement via facsimile signature and such facsimile signature
pages shall be treated as originals for all purposes.
15.10 Entire Agreement. This Agreement and the other documents delivered
concurrently herewith or pursuant hereto constitute the entire agreement among
the parties hereto, and it is understood and agreed that there are no other than
those contained herein. This Agreement may not be changed or modified except by
a writing duly executed by the parties hereto.
15.11 Governing Law; Choice of Forum. This Agreement shall be governed by
and construed in accordance with the laws of the State of California applicable
to agreements made and to be performed entirely within said State, and without
regard to its choice of law principles. All parties hereto (i) consents to
submit itself to the personal jurisdiction of any federal court located in the
State of California or any California state court in the event any dispute
arises out of this Agreement or any of the transactions contemplated by this
Agreement, (ii) agrees that Venue for any such dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement shall be any
federal court located in the State of California or any California state court,
(iii) agrees that they will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (iv)
agrees that it will not bring any action relating to this Agreement or any of
the transactions contemplated by this Agreement in any court other than a
federal court sitting in the State of California or a California state court.
16
15.12 Legal Action Fees. Subject to the specific provisions of Article 9,
above, if any action or other proceeding, in law or in equity, 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 successful or prevailing party or parties shall be entitled to
recover its or their reasonable attorney's fees and other costs incurred in that
arbitration, action or proceeding, in addition to any other relief to which it
or may be entitled.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first written above.
ZIASUN TECHNOLOGIES, INC.
Dated: May 2, 2001 /S/ D. Xxxxx Xxxxx
----------------------------------
By: D. Xxxxx Xxxxx
Its: Chief Executive Officer
Dated: April 27, 2001 /S/ Xxxxx X. Xxxxxxx
----------------------------------
By: Xxxxx X. Xxxxxxx
Its: President and COO
MOMENTUM MEDIA, LTD.
Dated: May 8, 2001 /S/ Xxxxx Xxxxxx
----------------------------------
By: Xxxxx Xxxxxx
Title: Director
MOMENTUM ASIA, INC.
Dated: April 27, 2001 /S/ Xxxx Xxxxxxxxx
----------------------------------
By: Xxxx Xxxxxxxxx
Its: President and Sole Director
17
EXHIBIT 4.1.4
REQUIRED GOVERNMENT APPROVALS
OF
MOMENTUM ASIA INC.
1. Philippines Bureau of Internal Revenue - Certificate / clearance to
transfer shares of MAI from ZiaSun to Momentum Media (issued only after BIR
is satisfied that appropriate documentary stamp tax and capital gains tax,
if any, have been paid).
2. Subic Bay Metropolitan Authority - Prior written consent in the event of
change of control pursuant to Section 4., Article V of the Lease Agreement.
EXHIBIT 4.3
DECEMBER 31, 2000
UNAUDITED FINANCIAL STATEMENTS
OF
MOMENTUM ASIA INC.
[to be provided]
EXHIBIT 4.4
EXCEPTIONS TO TITLE TO ASSETS AND LEASES
OF
MOMENTUM ASIA INC.
None, with the exception that MAI is late in the payment of rent for the
month of March. Also see, Exhibit 4.8 for other liabilities.
EXHIBIT 4.6
LITIGATION AND PENDING OR THREATEN CLAIMS
OF
MOMENTUM ASIA INC.
The following creditors of MAI have threatened to commence legal action to
collect the amounts due and owing to them:
Digitel Telecommunications;
DHL;
Xxxxx Telecom;
Eastern Telecom; and
World Mail
EXHIBIT 4.7
EXCEPTIONS TO TAX RETURNS AND REPORTS REQUIRED TO BE FILED
BY
MOMENTUM ASIA INC.
Momentum Asia, Inc., anticipates having an income tax liability for the
fiscal years 1998 and 1999, the amount of approximately $20,000 and $30,000,
respectively, which Purchaser has been made aware of and Purchaser hereby
accepts as part of Momentum Asia, Inc.
EXHIBIT 4.8
LIABILITIES, INDEBTEDNESS AND LIENS
OF
MOMENTUM ASIA INC.
Purchaser acknowledges and accepts full responsibility for any and all
liabilities, indebtedness, liens and obligations of MAI, including, but not
limited to the following vendor balances estimated as of March 31, 2001:
VENDOR $ AMOUNT
================================================================================
A & P $ 4,752.48
Agua Vida $ 91.00
Angoles Electric-Power $ 1,117.30
Atty Xxxx Xxxx $ 3,000.00
B. Lasergraphics $ 675.50
Bocobo, Cruz & Associates $ 180.00
Xxxxx Telecom $ 9,892.96
Xxxxx Vivandl Water $ 89.79
Dello X. Xxxxxxxxxx $ 843.74
Deipa Specialties, Inc. $ 856.38
DHL ( C ) $ 51,451.67
Digital Telecommunications $ 36,628.68
Eastern Telecom $109,285.93
Globe Telecom $ 2,738.38
Graph O Tech(Phila.) Inc. $ 423.50
Intergrafics Print & Pack $ 160.00
Jhad Security $ 2,730.68
Makati Microshop $ 497.70
Media Channel $ 36,243.80
NAPPOO $ 2,080.60
Nextel $ 99.55
Ocean Shirts, Inc. $ 3,224.51
PhilExcel Industrial Park $ 17,930.74
Power Mac Center $ 166.50
R.E.J. Accurate Lithographic $ 405.00
Raynier Mktg. $ 77.60
Rock Bottom $ 1,298.74
Savers Office Automation $ 249.70
Star Paper $ 376.69
Suble Telecom $ 3,074.33
WorldMall $ 73,706.19
Yunitrade Trading $ 102.40
================================================================================
TOTAL $364,452.04
EXHIBIT 5.1.3
REQUIRED GOVERNMENT APPROVALS
OF
MOMENTUM MEDIA LTD.
None.