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Exhibit 10.0
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
DATED APRIL 20 TH , 2005
BY AND BETWEEN
VERGE WIRELESS NETWORKS, INC.
AND
US WIRELESS ONLINE, INC.
1
AGREEMENT FOR PURCHASE AND SALE OF
ASSETS
THIS AGREEMENT dated the 15 day of April 2005,
by and between Verge Wireless Networks, Inc., a Louisiana
corporation (“Seller”), and US WIRELESS ONLINE,
Inc., a Nevada corporation.
W I T N E
S S E T H :
WHEREAS, Seller is engaged in the communications
solutions business including broadband access, wireless local
area networking, wireless security systems, among other business
(collectively the "Broadband Business") in the New Orleans,
Baton Rouge, and other markets across the United States;
WHEREAS, the Seller owns various assets related
to the Broadband Business; and
WHEREAS, the Seller desires to sell to the
Purchaser and the Purchaser desires to purchase from the Seller,
the Assets (as hereinafter defined) upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises
and the mutual covenants and agreements hereinafter set forth,
the parties hereby agree as follows:
1. PURCHASE AND SALE OF ASSETS . Upon
the terms and subject to the conditions set forth in this Agreement
and based upon the representations and warranties made herein, at
the Closing, Seller shall sell, and Purchaser shall purchase, the
following assets of Seller (the “Assets”) as described
in paragraphs 1(a)-(f) for the Purchase Price set forth in Section
2 hereof.
a)
Tangible Personal Property . All
personal property of the Broadband Business including but not
limited to the tangible property as listed on Exhibit
“A” attached hereto.
b)
Prepaid Items
. All prepaid items such
as deposits, customer prepayments, etc. to the extent such items
relate to the Assets including but not limited to the prepaid
items described more specifically on Exhibit
“B” ;
c)
Warranties
. All assignable rights
under express or implied warranties of manufacturers,
distributors, retailers or other third parties relating to the
Assets;
d)
Books, Records and Supplier Information
.
All service and maintenance histories of the Assets and
all records relating to warranties, service agreements or other
similar agreements with respect to the Assets, supplier lists,
demographic, statistical, and other information to the extent
such information relates to the Broadband Business;
e)
Customers . All customer contracts as
specifically listed on Exhibit “C”, customer
lists, and customer files.
f)
Contracts, Leases and Legal Information
. All contracts and leases
related to the Assets as specifically described on Exhibit
“D” .
2. PURCHASE PRICE . Subject
to adjustment as provided below, the total purchase price (the
“Purchase Price”) for the Assets shall be $40,000.00 in
cash at closing, $40,000.00 promissory note to be paid over 12
months ($3,333.33 per month) and $480,000.00 to be paid in common
stock of Acquirer at the average closing price of the five trading
days immediately prior to the closing date of this transaction but
not less than $0.17 per share or greater than $0.30 per share (the
“Shares”). Fifty percent (50%) of the Shares
issued at closing must be held for a minimum of 12 months from the
date of issuance, subject thereafter only to limitations set forth
in Rule 144 and fifty percent (50%) of the Shares must be held for
a minimum of 24 months from the date of issuance.
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a)
Not less than five (5) days prior to Closing,
the Purchaser will prepare a draft of a closing statement
setting forth the adjustments to the Purchase price made
pursuant to this section.
b)
The Purchase Price shall be allocated among the
various Assets as set forth on the schedule attached hereto as
Exhibit “E” and as determined solely by
Purchaser. Each party hereby agrees that it will not take
a position on any income tax return, on Internal Revenue Service
Form 8594, before any governmental agency charged with the
collection of any income tax, or in any judicial proceeding that
is inconsistent with the terms of Exhibit “E”
.
3. DISCLAIMER OF ASSUMPTION OF
LIABILITIES AND OBLIGATIONS OF SELLER .
Purchaser does not assume, and will not discharge, pay,
perform or be responsible or liable for, any debts, liabilities,
causes in action, claims or obligations of any nature, whether
absolute or contingent, of Seller, or expenses, costs and
attorney fees which may be incurred to compromise or defend the
foregoing, including, but not limited to, any and all
liabilities for federal income taxes, state and local income or
sales taxes, including sales taxes arising out of this
transaction and sales taxes accrued prior to the Closing Date
with respect to the operation of the Broadband Business by
Seller, excise taxes, all other taxes of any nature, accounts
payable and all promissory notes, claims of any of
Seller’s employees or customers, debts or other
obligations of any nature. Seller shall remain responsible
and liable for any and all of its debts, liabilities, causes in
action, claims and obligations of any nature, whether absolute
or contingent, and expenses, costs and attorney fees which may
be incurred to compromise or defend the foregoing, including,
but not limited to, any and all liabilities for federal income
taxes, state and local income or sales taxes, including sales
taxes arising out of this transaction and sales taxes accrued
prior to the Closing Date with respect to the operation of the
Broadband Business by Seller, excise taxes, all other taxes of
any nature, accounts payable and all promissory notes, debts and
other obligations of any nature.
4. RISK OF LOSS . Seller
assumes all risk of destruction, loss or damage to the Assets
due to fire or other casualty up to and including the Closing
Date. Upon destruction, loss or damage due to fire or
other casualty of any portion of the Assets valued in excess of
Five Thousand Dollars ($5,000), Purchaser shall have the option
to terminate this Agreement and, in the event of the exercise of
such option, all rights of Purchaser and Seller shall terminate
without liability of any party. The Purchaser shall notify
the Seller within five (5) days after receiving notice from
Seller of destruction, loss or damage of its decision to
terminate this Agreement. If Purchaser does not timely
notify Seller of termination, this Agreement shall remain in
full force and effect; provided , however , the
Purchase Price shall be adjusted at the Closing to reflect the
reduction in the value of the Assets caused by such destruction,
loss or damage.
5. REPRESENTATIONS AND WARRANTIES OF SELLER
.
Seller, as of the date of this Agreement and as of
the Closing Date, represents and warrants to Purchaser that:
a)
Organization of Seller .
Seller is a corporation company duly organized, validly
existing and in good standing under the laws of the State of
Louisiana and has all requisite power and authority to carry on
its business as it is presently being conducted. Seller
has full power and authority to conduct its business and to
enter into this Agreement and to consummate the transactions
contemplated hereby.
b)
Securities and Contracts .
There are in existence no outstanding options, contracts,
commitments, warrants, debentures, agreements, or rights of any
character or nature which would affect in any manner the sale of
Assets pursuant to this Agreement.
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c)
Litigation
. To Seller’s
knowledge, there are no legal or arbitration actions, suits,
claims or proceedings pending or threatened against the Seller
affecting the Assets, at law or in equity, or before any
federal, state, municipal or other governmental agency or
instrumentality, domestic or foreign. Seller is not aware
of any facts which might result in any such action, suit, claim
or proceeding. No judgments or liens are outstanding
against Seller or its properties, including, without limitation,
the Assets, nor is Seller in default with respect to any order
or decree of any court, arbitration panel, or of any such
governmental agency or instrumentality.
d)
Binding Agreement
. The execution, delivery
and performance of this Agreement and all agreements,
instruments and documents to be executed or delivered by Seller
pursuant to this Agreement, and the consummation of the
transactions contemplated hereby have been duly authorized by
the members and managers (if required) of the Seller and by all
other necessary action on the part of Seller. This
Agreement has been duly executed and delivered by Seller and
constitutes the legal, valid and binding obligations of such
parties, enforceable in accordance with its terms.
e)
Assets .
(i) Seller has good, absolute and
marketable title to, licenses, and unrestricted possession of,
all the Assets and properties being sold to Purchaser pursuant
to this Agreement, all free and clear of all leases, liens,
mortgages, pledges, encumbrances, security interests, charges,
restrictions of any kind, and any accrued, absolute, contingent
or other liabilities of any nature, including, without
limitation, liabilities for income taxes, sales taxes, excise
taxes, property taxes or other taxes.
(ii) Each Asset is in good operating
condition consistent with its age, subject to normal wear and
tear.
f)
Taxes . Seller has filed with the
appropriate governmental agencies all federal, state and local
tax returns required to be filed by Seller which tax returns
have been prepared on a consistent basis fully and accurately
disclosing, reporting and computing Seller's income, deductions
and tax liability. Seller has paid all taxes shown to be
due on said returns and is not delinquent in the payment of any
taxes due and payable to the United States or any other taxing
authority, and Seller is not involved in any dispute with any
tax authority nor has Seller received any notice of deficiency,
audit or other indication of deficiency from any tax authority.
Seller has paid in full all withholding, social security,
unemployment insurance and sales taxes required to be paid by
the United States or any other state, local or other taxing
authority.
g)
Material Contracts . The
execution of this Agreement and the consummation of the
transactions contemplated hereby will not constitute a default
or breach under any contract related to the Broadband Business.
The execution of this Agreement and the consummation of
the transactions contemplated hereby will not give rise to any
consent or notice requirement under any contract related to the
Broadband Business.
h)
Environmental Compliance . To
Seller’s knowledge, Seller is now and has always been in
compliance in all respects with all Environmental Laws (as
hereinafter defined). There has been no notice or request
for information issued and no complaint filed by any
governmental entity, and there is no investigation or review
pending or, to the knowledge of Seller, threatened by any
governmental entity with respect to (a) any alleged violation by
Seller of any Environmental Law in connection with the conduct
of its business, or (b) any alleged failure of Seller to have
any Environmental Permit required in connection with the conduct
of its business. There are no facts, conditions or
circumstances known to the Seller which would result in any such
investigation or review if such facts, conditions or
circumstances were fully disclosed to such governmental entity.
All Environmental Permits necessary to Seller's business
are in full force and effect and Seller is in full compliance
therewith. Seller has not generated, processed, treated,
sold or transported any Hazardous Material.
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"Environmental Laws" shall mean all federal,
state, municipal, and local laws, statutes, ordinances, rules,
regulations, conventions, and decrees relating to the
environment, including without limitation, those relating to
emission, discharge, release, or threatened releases of
pollutants, contaminants, chemicals, or industrial, toxic, or
hazardous materials or wastes of every kind and nature into the
environment (including without limitation ambient air, surface
water, ground water, soil, and subsoil), or otherwise relating
to the manufacture, generation, processing, distribution,
application, use, treatment, storage, disposal, presence,
management, transport, or handling of pollutants, contaminants,
chemicals, or industrial, toxic, or hazardous substances or
wastes, and any and all laws, rules, regulations, codes,
directives, orders, decrees, judgments, injunctions, consent
agreements, stipulations, provisions, and conditions of
Environmental Permits, licenses, injunctions, consent
agreements, stipulations, certificates of authorization, and
other operating authorizations, entered, promulgated, or
approved hereunder.
"Environmental Permits" shall mean all permits,
licenses, certificates, approvals, authorizations, regulatory
plans or compliance schedules required by applicable
Environmental Laws, or issued by a Government pursuant to
applicable Environmental Laws, or entered into by agreement of
the party to be bound, relating to activities that affect the
environment, including, without limitation, permits, licenses,
certificates, approvals, authorizations, regulatory plans and
compliance schedules for air emissions, water discharges,
pesticide and herbicide or other agricultural chemical storage,
use or application, and Hazardous Material or Solid Waste
generation, use, storage, treatment and disposal.
"Hazardous Material" shall mean any substance or
material designated as hazardous or toxic pursuant to any
applicable Environmental Law.
i)
Material Misstatements or Omissions . No
representation or warranty made by Seller in this Agreement, or
in any document, statement, certificate, exhibit or schedule
furnished to Purchaser pursuant thereto, or in connection with
the transaction contemplated hereby, contains any untrue
statement of a material fact required to be stated therein or
necessary in order to provide Purchaser with proper information
as to Seller, Seller's Assets or the affairs of Seller.
j)
Reliance . The foregoing representations
and warranties are made by the parties with the knowledge and
expectation that the other party is placing complete reliance
thereon.
k)
Survival of Warranties, Representations and
Agreements . The representations,
warranties, agreements, and indemnifications of Seller contained
in this Agreement shall not be discharged or dissolved upon, but
shall survive, the Closing contemplated herein, and shall be
unaffected by any investigation made by any party up to
eighteen (18) months from date of closing date.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER .
Purchaser, as of the date of this Agreement and as of the
Closing Date, represents and warrants to Seller that:
a)
Existence . Purchaser is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Nevada and has all requisite power and authority
to carry on its business as it is presently being conducted.
Purchaser has full power and authority to enter into this
Agreement and to consummate the transactions contemplated
hereby.
b)
Authority . Purchaser has taken all
appropriate and required action to authorize the consummation of
the transaction contemplated by this Agreement, Purchaser has
full requisite power and authority to acquire and own the Assets
of Seller herein described, and this Agreement and all
agreements, instruments and documents to be executed or
delivered by Purchaser pursuant to this Agreement constitute
legal, valid and binding obligations of Purchaser, enforceable
in accordance with their terms.
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c)
Survival of Warranties, Representations and
Agreements . The representations, warranties
and agreements of Purchaser contained in this Agreement shall
not be discharged or dissolved upon, but shall survive the
Closing contemplated herein, and shall be unaffected by any
investigation made by any party at any time.
7. CONDUCT PRIOR TO CLOSING .
Between the date of this Agreement and the Closing
Date:
a)
Access . Seller will afford to Purchaser,
its legal counsel, and other representatives access to the
Assets, and will furnish Purchaser with such additional
information regarding the Assets as Purchaser may from time to
time request.
b)
Affirmative Requirements .
Seller shall:
i.
maintain the Assets in as go
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