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EXHIBIT 10 (g)
SHARE
EXCHANGE AND ACQUISITION AGREEMENT
BY
AND AMONG
PURCHASE
POINT MEDIA CORP.
AND
POWER
SPORTS FACTORY, Inc.
Dated
APRIL 24, 2007
THIS
EXCHANGE AGREEMENT (the "Agreement"), is made and entered into
as of April 24, 2007, by and among Purchase Point Media Corp.
a Minnesota corporation ("PPMC"), and Power Sports Factory,
Inc., a Delaware corporation ("PSF"), and the stockholders of
PSF set forth on the signature pages to this Agreement
(collectively, "PSF" and the "PSF SHAREHOLDERS"), with respect
to the following facts:
RECITALS
A. The
PSF SHAREHOLDERS own 100% of the issued and outstanding shares
of the Common Stock of PSF par value $.001 per share in the
denominations as set forth opposite their respective names on
Schedule I to this Agreement.
B. PPMC
desires to acquire from the PSF SHAREHOLDERS, and the PSF
SHAREHOLDERS desire to sell and transfer to PPMC, all of the
PSF Shares owned by them on the Closing Date in exchange for
the issuance and delivery by PPMC of one share of Common
Stock, no par value per share, of PPMC ("Common Stock"), for
each common share of PSF (the "Exchange Ratio"), on the terms
and conditions set forth below (the "Exchange");
and
C. It
is intended that, for federal income tax purposes, the
Exchange shall qualify as an exchange described in Section 351
of the of the Internal Revenue Code of 1986, as amended (the
"Code") and a reorganization described in Section 368 of the
Code.
NOW,
THEREFORE, in consideration of the foregoing premises and
representations, warranties, covenants and agreements
contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE
I EXCHANGE OF SECURITIES
Section
1.1 The Exchange.
On the terms and subject to the conditions of this Agreement, on
the Closing Date, PPMC shall issue and deliver to each of
the PSF
SHAREHOLDERS
such number of shares of Common Stock as is set forth opposite
such PSF
shareholder name on Schedule I hereto, subject to adjustment
as set forth in Section 1.2, and each such PSF
SHAREHOLDER shall sell, transfer and deliver to PPMC, the
number of issued and outstanding PSF
Shares set forth opposite such PSF
SHAREHOLDER's name on Schedule I hereto along with a duly
executed share assignment endorsed in favour of
PPMC.
Section
1.2 Exchange Ratio.
(a)
By effecting a reverse split, PPMC will have no more than
7,620,000 shares of Common Stock outstanding. In connection
with the Closing, it is intended that, the PSF
SHAREHOLDERS would receive an aggregate of up to 17,500,000
shares of PPMC Common Stock (assuming 100% of the PSF
SHAREHOLDERS exchange their PSF
SHARES for PPMC SHARES), and any other issuances as directed
by PSF.
ARTICLE
II THE CLOSING
Section
2.1 Closing Date.
The
closing of the Exchange and the other transactions
contemplated by this Agreement (the "Closing") shall take
place at the offices of Michael S. Krome Esq. which address is
8 Teak Court, Lake Grove, New York 11755 at 11:00 AM on May 2,
2007, or at such other location, date and time as PPMC and PSF
may agree. The time and date upon which the Closing actually
occurs being referred to herein as the "Closing
Date").
Section
2.2 Transactions at Closing.
At
the Closing, the following transactions shall take place
and
no
transaction shall be deemed to have been completed or any
document delivered until all such transactions have been
completed and all required documents delivered:
(a)
PPMC shall deliver the following documents:
(i)
Validly executed stock certificates corresponding to the
Common Stock issued in the name of the PSF SHAREHOLDERS in the
amounts set forth in Schedule I;
(ii)
True copies of all consents and waivers obtained by PPMC, in
accordance with the provisions of Section 7.1
below;
(iii)
Certificate of good standing from the Secretary of State of
the State of Delaware, dated at or about the Closing Date, to
the effect that PPMC is in good standing under the laws of
said state;
(iv)
Certified copy of the Certificate of Incorporation of PPMC, as
certified by the Secretary of State of the State of Delaware
at or about the Closing Date;
(v)
Secretary's certificate duly executed by PPMC's secretary
attaching and attesting to the accuracy of: (A) the bylaws of
PPMC, (B) the resolutions of PPMC's board of directors hereto
issuing and
allotting
the Common Stock to the PSF
SHAREHOLDERS subject to the provisions
hereof, approving the transactions contemplated
hereby, including the Exchange, appointing the designees of
PSF
as directors of PPMC,
and (C) an incumbency certificate signed by all of the
executive officers of PPMC
dated at or about the Closing Date;
(vi)
An officer's certificate duly executed by PPMC's
chief executive officer to the effect that the conditions set
forth in Section 7.1(a) below have been satisfied, dated as of
the date of the Closing;
(vii) Resignation and release letters in the form attached hereto
as Exhibit B hereto from each of the current officers and directors
of PPMC;
(viii)
All corporate books and records of PPMC;
and
(ix)
Such other documents and instruments as PSF
may reasonably request.
(b)
PSF shall deliver or cause to be delivered the following
documents and/or shall take the following
actions:
(i) PSF shall deliver to PPMC
share certificates
in the name of PPMC
in respect of all
PSF Shares and shall register PSF
Shares in the name
of PPMC
in the shareholders
register of PSF;
(ii)
Certificate of good standing from the Secretary of State of
the State of Delaware, dated at or about the Closing Date, to
the effect that PSF
is in good standing under the laws of said
state;
(iii)
Certified copy of the Certificate of Incorporation of
PSF,
as amended to date certified by the Secretary of State of the
State of Delaware at or about the Closing Date;
(iv)
Secretary's certificate duly executed by PSF's
secretary attaching and attesting to the accuracy of: (A) the
bylaws of PSF,
(B) the resolutions of PSF's board of directors, approving the
transactions contemplated hereby, including the Exchange, and
(C) an incumbency certificate signed by all of the executive
officers of PSF dated at or about the Closing
Date;
(v)
An officer's certificate duly executed by PSF's
chief executive officer of PSF
to the effect that the conditions set forth in Section7.2(a)
below have been satisfied, dated as of the date of the
Closing; and
(vi)
True copies of all consents and waivers obtained by
PSF,
in accordance with the provisions of Section 7.1
below;
(c)
The PSF
SHAREHOLDERS shall deliver the following
documents:
(i)
to PPMC,
duly executed share assignments in the form attached hereto as
Exhibit D effecting the immediate and unconditional sale,
assignment and irrevocable transfer of PSF
Securities to PPMC,
free and clear of any liens, or any other third party rights
of any kind and nature, whether voluntarily incurred or
arising by operation of law; and
(ii)
to PSF, as agent for PPMC, all share certificates in respect
of PSF Shares.
ARTICLE
III REPRESENTATIONS AND WARRANTIES OF PPMC
PPMC
hereby makes the following representations and warranties to
PSF and each PSF SHAREHOLDER:
Section
3.1 Organization and Qualification.
PPMC
is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization, with the
corporate power and authority to own and operate its business
as presently conducted, except where the failure to be or have
any of the foregoing would not have a Material Adverse Effect.
PPMC is duly qualified as a foreign corporation to do business
and is in good standing in each jurisdiction where the
character of its properties owned or held under lease or the
nature of their activities makes such qualification necessary,
except for such failures to be so qualified or in good
standing as would not have a Material Adverse Effect. PPMC has
no subsidiaries and is not a participant in any joint venture,
partnership, or similar arrangement.
Section
3.2 Authorization.
PPMC
has the requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and
to consummate the Exchange.
Section
3.3 Validity and Effect of Agreement.
This
Agreement has been duly and validly executed and delivered by
PPMC and, assuming that it has been duly authorized, executed
and delivered by the other parties hereto, constitutes a
legal, valid and binding obligation of PPMC in accordance with
its terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights
generally.
Section
3.4 No Conflict.
Neither
the execution and delivery of this Agreement by PPMC nor the
performance by such parties of their respective obligations
hereunder, nor the consummation of the Exchange, will: (i)
conflict with PPMC's Certificate of Incorporation or Bylaws;
(ii) violate any statute, law, ordinance, rule or regulation,
applicable to PPMC or any of the properties or assets of PPMC;
or (iii) violate, breach, be in conflict with or constitute a
default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or permit the
termination of any provision of, or result in the termination
of, the acceleration of the maturity of, or the acceleration
of the performance of any obligation of PPMC and/or affect any
of the obligations hereunder, or result in the creation or
imposition of any Lien upon any properties, assets or business
of PPMC under, any Contract or any order, judgment or decree
to which PPMC is a party or by which it or any of
its
assets
or properties is bound or encumbered except, in the case of
clauses (ii) and (iii), for such violations, breaches,
conflicts, defaults or other occurrences which, individually
or in the aggregate, would not have a material adverse effect
on its obligation to perform its covenants under this
Agreement.
Section
3.5 Required Filings and Consents.
The
execution and delivery of this Agreement by PPMC does not, and
the performance of this Agreement by PPMC will not, require
any consent, approval, authorization or permit of, or filing
with or notification to, Governmental Authority with respect
to PPMC except: (i) compliance with applicable requirements of
the Securities Act, the Exchange Act and state securities laws
("Blue Sky Laws"); and (ii) where the failure to obtain such
consents, approvals, authorizations or permits, or to make
such filings or notifications would not, individually or in
the aggregate, reasonably be expected to have a Material
Adverse Effect on PPMC, or would not prevent or materially
delay consummation of the Exchange or otherwise prevent the
parties hereto from performing their respective obligations
under this Agreement.
Section
3.6 Capitalization.
The
authorized capital stock of PPMC consists of 100,000,000
shares of Common Stock, no par value per share, of which
7,500,000 shares are issued and outstanding, and 10,000,000
shares of Preferred Stock, no par value per share, of which no
shares are outstanding. Except for the transactions
contemplated by this Agreement, there are no other share
capital, pre-emptive rights, convertible securities,
outstanding warrants, options or other rights to subscribe
for, purchase or acquire from PPMC any shares of capital stock
of PPMC and there are no contracts or commitments providing
for the issuance of, or the granting of rights to acquire, any
shares of capital stock of PPMC or under which PPMC is, or may
become, obligated to issue any of its securities. All shares
of capital stock of PPMC outstanding as of the date of this
Agreement have been duly authorized and validly issued, are
fully paid and nonassessable, and are free of pre-emptive
rights. As of the Closing Date (as defined herein), there will
be no more than 7,500,000 shares of Common Stock issued or
outstanding prior to the Exchange.
Section
3.7 Status of Common Stock.
The
Common Stock, when issued and allotted at the Closing in
exchange for PSF Shares, will be duly authorized, validly
issued, fully paid, non-assessable, and free of any
pre-emptive rights, will be issued in compliance with all
applicable laws concerning the issuance of securities,and will
have the rights, preferences, privileges, and restrictions set
forth in PPMC's charter and bylaws, and will be free and clear
of any Liens of any kind and duly registered in the name of
the PSF SHAREHOLDERS, in PPMC's stockholders
ledger.
Section
3.8 SEC Reports and Financial Statements.
PPMC
has timely filed with the SEC all forms, reports, notices,
schedules, statements and other documents and instruments
required to be filed by it under any applicable law, and has
heretofore made available (or promptly following filing will
make available) to PSF true and complete copies of, all such
forms, reports, notices,schedules, statements and other
documents and
instruments
required to be filed by it under the Exchange Act or the
Securities Act, the "PPMC SEC Documents"). As of their
respective dates or, if amended, as of the date of the last
such amendment, the PPMC SEC Documents, including any
financial statements or schedules included therein (i) did not
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not
misleading, (ii) were complete and accurate in all material
respects, and (iii) complied in all material respects with the
applicable requirements of the Exchange Act and the Securities
Act, as the case may be, and the applicable rules and
regulations of the SEC thereunder.
Section
3.9 Financial Statements.
Each
of the financial statements (the "PPMC Financial Statements")
audited financial statements for the years ended December 31,
2005 and December 31 2006. have been prepared and are in
accordance with, the books and records of PPMC, the results of
operations and cash flows of PPMC.
Section
3.10 No Assets or Liabilities.
PPMC
will have satisfied all liabilities to PSF's satisfaction, and
further represents that PPMC will not have any liabilities,
indebtedness or obligations, whether known or unknown,
absolute, accrued, contingent or otherwise, and whether due or
to become due (collectively, "Liabilities"), and, there is no
existing condition, situation or set of circumstances that
could reasonably be expected to result in such a liability,
including without limitation any liabilities for foreign,
federal, state, local or other taxes (including deficiencies,
interest and penalties). As of the Closing Date, PPMC shall
have no properties or assets of any kind, whether real
personal or intangible and whether owned or leased (other than
cash, cash equivalents or marketable securities) and no
Liabilities.
Section
3.11 No Contract Rights or Commitments.
On
the Closing Date, other than contracts disclosed there will
not be any Contract to which PPMC is a party or by which any
of its assets or properties are bound.
Section
3.12 No Intellectual Property Rights or
Infringement.
PPMC
does not own, has not obtained the right to use, and has not
violated nor otherwise trespassed upon any patents,
trademarks, service marks, trade names, copyrights, and
applications, licenses and rights with respect to the
foregoing, and/or any trade secrets, including know-how,
inventions, designs, processes, works of authorship, computer
programs and/or technical data and/or
information.
Section
3.13 Litigation.
There
is no Action pending or threatened against PPMC that,
individually or in the aggregate, directly or indirectly,
would be reasonably likely to have a Material Adverse Effect,
nor is there any outstanding judgment, decree or injunction,
in each case against PPMC, that, individually or in the
aggregate, has or would be reasonably likely to have a
Material Adverse Effect.
Section
3.14 Taxes.
PPMC has timely filed (or has had timely filed on its
behalf) with the appropriate tax authorities all tax returns
required to be filed by it or on behalf of it, and each such tax
return was complete and accurate in all material respects, and
PPMC
has timely paid (or has had paid on its behalf) all material Taxes
due and owing by it, regardless of whether required to be shown or
reported on a tax return, including Taxes required to be withheld
by it. No deficiency for a material Tax has been asserted in
writing or otherwise, to PPMC's
Knowledge, against PPMC
or with respect to any of its assets, except for asserted
deficiencies that either (i) have been resolved and paid in full or
(ii) are being contested in good faith. There are no material Liens
for Taxes upon PPMC's
assets.
Section
3.15 Registration.
No
order revoking the registration of PPMC
or the Common Stock under the Exchange Act has been issued by
any court, securities commission or regulatory authority in
the United States and no proceedings for such purpose are
pending or, to the Knowledge of PPMC,
after reasonable inquiry, threatened.
Section
3.16 Trading.
No
order suspending the sale or ceasing the trading or quotation
of the Common Stock in the over the counter market has been
issued by any court, securities commission or regulatory
authority in the United States, and no proceedings for such
purpose are pending or, to the knowledge of PPMC,
after reasonable inquiry, threatened.
Section
3.17 Books and Records.
The
books and records, financial and others, of PPMC
are in all material respects complete and correct and have
been maintained in accordance with good business accounting
practices.
Section
3.18 Insurance.
PPMC has no insurable properties and PPMC
does not maintain
any
insurance covering its assets, business, equipment,
properties, operations, employees, officers, or directors. To
PPMC's
knowledge since inception there has not been any damage,
destruction or loss, which could have been deemed as an
"Insurance Event".
Section
3.19 Compliance.
PPMC is in compliance with all foreign, federal, state and
local laws and regulations of any Governmental Authority, except to
the extent that failure to comply would not, individually or in the
aggregate, have a Material Adverse Effect. PPMC
has not received any notice asserting a failure, or possible
failure, to comply with any such law or regulation, the subject of
which notice has not been resolved as required thereby or otherwise
to the satisfaction of the party sending the notice, except for
such failure as would not, individually or in the aggregate, have a
Material Adverse Effect. PPMC does not, and is not require to, hold
any permits, licenses or franchises from Governmental
Authorities.
Section
3.20 Absence of Certain Changes.
Since
April 24, 2007, except as described in the PPMC SEC Documents
or as expressly permitted or required by this Agreement or
with the consent of PSF, PPMC has not:
(a)
sold or otherwise issued any shares of capital stock; (b)
acquired any assets or incurred any Liabilities; (c) amended
its certificate of incorporation or bylaws;
(d)
waived any rights of value which in the aggregate are
extraordinary or material considering the business of
PPMC;
(e)
made any material change in its method of management,
operation or accounting;
(f)
made any accrual or arrangement for or payment of bonuses or
special compensation of any kind or any severance or
termination pay to any present or former officer or
employee;
(g)
granted or agreed to grant any options, warrants or other
rights for its stocks, bonds or other corporate securities
calling for the issuance thereof, which option, warrant or
other right has not been cancelled as of the Closing
Date;
(h)
borrowed or agreed to borrow any funds or incurred or become
subject to, any material obligation or liability (absolute or
contingent) except liabilities incurred in the ordinary course
of business;
(i)
become subject to any law or regulation which materially and
adversely affects, or in the future may adversely affect, the
business, operations, properties, assets or condition of PPMC
or become subject to any change or development in, or effect
on, PPMC that has or could reasonably be expected to have a
Material Adverse Effect; or
(j)
entered into any agreement to take any action described in
clauses (a) through (i) above
Section
3.21 Material Transactions or Affiliations.
There
is no contract, agreement or arrangement between PPMC and any
person who was, at the time of such contract, agreement or
arrangement an officer, director or person owning of record,
or known by PPMC to own beneficially, five percent or more of
the issued and outstanding Common Stock and which is to be
performed in whole or in part after the date hereof. PPMC has
no commitment, whether written or oral, to lend any funds to,
borrow any money from or enter into any other material
transactions with, any such affiliated person.
Section
3.22 Employees.
PPMC
has no employees other than its officers and directors. PPMC
has no liabilities and/or debts towards any such officers and
directors. PPMC has no agreement, obligation or commitment
with respect to the election of any individual or individuals
to PPMC's board of directors.
Section
3.23 Previous Sales of Securities.
Since
inception, PPMC
has sold Common Stock to investors only in reliance upon
applicable exemptions from the registration requirements under
any applicable law including the laws of the United States and
any applicable states and all such sales were made in
accordance with the laws of said jurisdictions. Except as
provided in this Agreement, PPMC
has not granted or agreed to grant any registration rights,
including piggyback entity.
Section 3.24 Principals of PPMC.
During
the past five years, no officer or director of PPMC has
been:
(a)
the subject of any bankruptcy petition filed by or against any
business of which such person was a general partner or
executive officer either at the time of the bankruptcy or
within two years prior to that time;
(b)
the subject of any conviction in a criminal proceeding or
being subject to a pending criminal proceeding (excluding
traffic violations and other minor offenses);
(c)
the subject of any order, judgment, or decree, not
subsequently reversed, suspended or vacated, of any court of
competent jurisdiction, permanently or temporarily enjoining,
barring, suspending or otherwise limiting his involvement in
any type of business, securities or banking activities;
or
(d)
found by a court of competent jurisdiction (in a civil
action), the Commission or the Commodity Futures Trading
Commission to have violated a federal or state securities or
commodities law, and the judgment has not been reversed,
suspended, or vacated.
Section
3.25 Tax-Free Exchange.
PPMC has not taken any action, nor does PPMC
know of any fact, that is reasonably likely to prevent the Exchange
from qualifying as a "reorganization" within the meaning of Section
351 or 368 of the Code.
Section
3.26 Brokers and Finders.
Neither
PPMC,
nor any of its respective officers, directors, employees or
managers, has employed any broker, finder, advisor or
consultant, or incurred any liability for any investment
banking fees, brokerage fees, commissions or finders' fees,
advisory fees or consulting fees in connection with the
Exchange for which PPMC
has or could have any liability.
Section
3.27 Disclosure.
As
of the Closing Date, there is no known material fact or
information relating to the business, condition (financial or
otherwise), affairs, operations or assets of PPMC
and/or its subsidiaries that has not been disclosed in writing
to PSF and/or the PSF SHAREHOLDERS by PPMC.
No representation or warranty of PPMC
in this Agreement or any statement or document delivered in
connection herewith or therewith, contained or will contain
any untrue statement of a material fact or fail to state any
material fact necessary in
order
to make the statements made, in light of the circumstances
under which they were made, not misleading.
ARTICLE
IV REPRESENTATIONS
AND WARRANTIES OF PSF
PSF
hereby makes the following representations and warranties to
PPMC:
Section
4.1 Organization and Qualification.
PSF
is duly organized and validly existing under the laws of its
jurisdiction of organization, with the corporate power and
authority to own and operate its business as presently
conducted, except where the failure to be or have any of the
foregoing would not have a Material Adverse Effect. PSF is
duly qualified as a foreign corporation to do business in each
jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such
qualification necessary, except for such failures to be so
qualified as would not have a Material Adverse Effect. PSF has
no subsidiaries.
Section
4.2 Authorization; Validity and Effect of
Agreement.
PSF
has the requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and
to consummate the Exchange. This Agreement has been duly and
validly executed and delivered by PSF and, assuming that it
has been duly authorized, executed and delivered by the other
parties hereto, constitutes a legal, valid and binding
obligation of PSF, in accordance with its terms except as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting
enforcement of creditors' rights generally.
Section
4.3 No Conflict.
Neither
the execution and delivery of this Agreement by PSF nor the
performance by PSF of its obligations hereunder, nor the
consummation of the Exchange, will: (i) conflict with PSF's
Certificate of Incorporation; (ii) violate any statute, law,
ordinance, rule or regulation, applicable to PSF or any of its
properties or assets; or (iii) violate, breach, be in conflict
with or constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) under,
or permit the termination of any provision of, or result in
the termination of, the acceleration of the maturity of, or
the acceleration of the performance of any obligation of PSF,
or result in the creation or imposition of any Lien upon any
properties, assets or business of PSF under, any Material
Contract or any order, judgment or decree to which PPMC is a
party or by which it or any of its assets or Properties is
bound or encumbered except, in the case of clauses (ii) or
(iii), for such violations,breaches,conflicts, defaults or
other occurrences which, individually or in the aggregate,
would not have a Material Adverse Effect on its obligation to
perform its covenants under this Agreement.
Section
4.4 Required Filings and Consents.
The
execution and delivery of this Agreement by PSF do not, and
the performance of this Agreement by PSF will not require
any
consent,
approval, authorization or permit of, or filing with or
notification to, any Governmental Authority, with respect to
PSF, except: (i) compliance with applicable requirements of
the Securities Act, the Exchange Act, and Blue Sky Laws; and
(ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or
notifications would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on
PSF, or materially delay consummation of the Exchange or
otherwise prevent the parties hereto from performing their
obligations under this Agreement.
Section
4.5 Capitalization.
The
authorized capital stock of PSF consists of 1500 shares of
Common Stock par value $0.001, of which 1500 shares are issued
and outstanding. All PSF Shares outstanding as of the date of
this Agreement have been duly authorized and validly issued,
are fully paid and non-assessable, and are free of pre-emptive
rights.
Section
4.6 Financial Statements.
PSF
has previously furnished to PPMC true and complete copies of
its unaudited balance sheet of PSF for the period ended
December 31, 2005, and December 31, 2006 and the related
statements of operations, through December 31, 2006 (all of
such financial statements of PSF collectively, the "PSF
Financial Statements"). The PSF Financial Statements
(including the notes thereto) present fairly in all material
respects the financial position and results of operations and
cash flows of PSF at the date or for the period set forth
therein, in each case in accordance with GAAP applied on a
consistent basis throughout the periods involved (except as
otherwise indicated therein). The PSF Financial Statements
have been prepared from and in accordance with the books and
records of PSF and its subsidiaries, as
applicable.
Section
4.7 No Undisclosed Liabilities.
Except
as disclosed in the PSF Financial Statements, PSF has no
material liabilities, indebtedness or obligations, except
those that have been incurred in the ordinary course of
business, whether absolute, accrued, contingent or otherwise,
and whether due or to become due, and to the Knowledge of PSF,
there is no existing condition, situation or set of
circumstances that could reasonably be expected to result in
such a liability, indebtedness or obligation.
Section
4.8 Properties and Assets.
PSF
has good and marketable title to, valid leasehold interests
in, or the legal right to use, all of the assets, properties
and leasehold interests reflected in the most recent PSF
Financial Statements, except for those sold or otherwise
disposed of since the date of such PSF Financial Statements in
the ordinary course of business consistent with past
practice.
Section
4.9 Litigation.
There
is no Action pending or threatened against PSF that,
individually or in the aggregate, directly or indirectly,
would be reasonably likely to have a Material Adverse Effect,
nor is there any outstanding judgment, decree or injunction,
in each case
against
PSF,
that, individually or in the aggregate, has or would be
reasonably likely to have a Material Adverse
Effect.
Section
4.10 Taxes.
PSF
has timely filed (or has had timely filed on its behalf) with
the appropriate tax authorities all tax returns required to be
filed by it or on behalf of it, and each such tax return was
complete and accurate in all material respects, and PSF has
timely paid (or has had paid on its behalf) all material Taxes
due and owing by it, regardless of whether required to be
shown or reported on a tax return, including Taxes required to
be withheld by it. No deficiency for a material Tax has been
asserted in writing or otherwise, to PSF's
Knowledge, against PSF or with respect to any of its assets,
except for asserted deficiencies that either (i) have been
resolved and paid in full or (ii) are being contested in good
faith. There are no material Liens for Taxes upon PSF's
assets.
Section
4.11 Compliance.
To
PSF's Knowledge, PSF
is in compliance with all federal, state and local laws
and regulations of any Governmental Authority applicable to
its operations or with respect to which compliance is a
condition of engaging in the business thereof, except to the
extent that failure to comply would not, individually or in
the aggregate, have a Material Adverse Effect. PSF has not
received any notice asserting a failure, or possible failure,
to comply with any such law or regulation, the subject of
which notice has not been resolved as required thereby or
otherwise to the satisfaction of the party sending the notice,
except for such failure as would not, individually or in the
aggregate, have a Material Adverse Effect. To PSF's
Knowledge, PSF
holds all permits, licenses and franchises from Governmental
Authorities required to conduct its business as it is now
being conducted, except for such failures to have such
permits, licenses and franchises that would not, individually
or in th
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