EXHIBIT 2.2
TRANSFER AND ASSUMPTION AGREEMENT
This Transfer and
Assumption Agreement
(the "Agreement")
is entered
into and dated effective as of May 31, 2005
(the "Effective Date")
by and among
Cyber Merchants Exchange, Inc., a California corporation
(the "Company"),
ASAP
Show Inc., a Nevada corporation
("ASAP"), and Frank Yuan, an adult resident
of
the State of California ("Yuan").
RECITALS
A. ASAP is a
wholly owned subsidiary of the Company without any
business assets or activities, and the Company owns all of the
capital stock of
ASAP.
B. The Company desires
to transfer its
existing trade show
business
operations ("Business") and any and all assets in
connection with the Business
to ASAP in accordance with the terms
hereof.
C. ASAP desires to
acquire and purchase
from the Company,
as of the
Effective Date, all of assets of every kind
and description
(including
cash,
accounts receivable, inventory, equipment, contracts, deposits and prepaid
expenses) used in or related to the
Business together with all assets of the
Company (but specifically excluding from such assets, the
capital stock of ASAP
owned by the Company) (the foregoing
assets being referred
herein
collectively
as the "Assets").
D. The Assets to be acquired by ASAP include, but shall not be limited
to, those specifically set forth on
Schedule A attached hereto, which Schedule A
shall be revised and amended by the parties
hereto within thirty (30) days after
the Effective Date based on an audit of the
Company's and ASAP's financial
statements by Corbin and Company, LLP (the
"Auditor") as of the Effective Date.
E. As consideration
for the transfer of the Assets by the
Company to
ASAP, ASAP has agreed to assume,
perform and pay each
and every liability
and
obligation of the Company (including, without limitation, accounts and trade
payables, accrued expenses, payroll liabilities, deferred revenue, customer
deposits, loans, and obligations under contracts and agreements) as of the
Effective Date including, without
limitation, the liabilities of the Company set
forth on Schedule B attached hereto, which Schedule B shall be revised
and
amended by the parties hereto within thirty (30) days
after the Effective
Date
based on an audit of the Company's and ASAP's financial statements by the
Auditor as of the Effective Date.
F. Yuan desires to forever and irrevocably release the Company from
any
and all obligations and claims with respect to any
debt and/or
obligations of
the Company owed to Yuan from and through the Effective Date ("Yuan
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Obligations") including, without limitation, (i) any
obligations of the Company
incurred in connection with Yuan's capacity
as an employee, officer and director
of the Company, and (ii) any obligations of
the Company with respect to advances
and loans made by Yuan to the Company,
which obligations will be assumed by ASAP
pursuant to the terms hereof ("Yuan
Loans").
G. Following the completion of the transactions contemplated hereunder
and the modification of Schedules A and B
pursuant to the audit of the Company's
financial statements by auditor,
the Company
desires to distribute
all of the
capital stock of ASAP to its stockholders
on a pro rata basis ("Distribution").
H. Following the completion of the transactions contemplated under
this
Agreement and the Distribution, and subject to the satisfaction of the
conditions contained on a certain
Securities Purchase Agreement by and among the
Company, Yuan and KI Equity Partners II, LLL ("KI Equity")
dated November 19,
2004, as may be amended from time to time
by the parties ("Purchase Agreement"),
KI Equity has agreed to subscribe for and
purchase certain
capital stock of the
Company for a purchase price of $415,000
("Subscription Funds").
I. Upon receipt of the Subscription Funds by the Company, the Company
will handle and disburse such Subscription
Funds in the manner set forth in this
Agreement, with any portion of the
Subscription
Funds remaining being
paid to
ASAP as a reduction of its purchase price for the Assets, subject to the
Company's maintenance of a $50,000 reserve for future indemnity claims
hereunder.
AGREEMENTS
NOW, THEREFORE, in
consideration of the above recitals, the following
representations, warranties, covenants and conditions, and other good and
valuable consideration, the receipt of which is
acknowledged, the parties agree
as follows:
1. Transfer of Assets. On the Effective Date, the Company hereby
sells,
assigns, conveys, transfers and delivers to
ASAP, on an "AS IS, WHERE IS" basis,
without any warranties or representations of any kind or nature,
all of the
Assets. Within thirty (30) days
following the
Effective Date, the
Company and
ASAP shall cause the Auditor to deliver to the
Company and ASAP the audited
financial statements of the Company and
ASAP as of the Effective Date. Upon such
delivery, the Company and ASAP shall
update and amend the
Schedule A
attached
hereto and provide any supporting
schedules reasonably
required to identify the
Assets in detail.
2. Assumption of Liabilities. ASAP hereby assumes, and agrees to pay,
observe and perform all of the duties, obligations, terms, provisions and
covenants of all of Company's burdens, debts, obligations and liabilities of
every nature and kind, whether liquidated or contingent, choate or inchoate,
known or unknown, including but not limited to Company's accounts and trade
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payables, accrued expenses, payroll
liabilities, vacation and sick pay accruals,
deferred revenue, customer deposits, Yuan Loans,
loans from Spencer Lin, vendor
and customer claims, obligations under any contracts,
agreement,
instruments,
licenses and leases, accrued salaries and
benefits, taxes of any
kind or nature
(including all taxes of the Company arising out of or with respect to the
transactions under this Agreement and the
Distribution),
filings made with
any
regulatory agencies, fines and penalties, obligations, damages or expenses
(including fines and penalties)
arising as a result of
the Company's failure to
comply with any laws, rules or regulations applicable to the Company or the
Business (including, without limitation,
any and all laws, rules and regulations
under and with respect to the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended),
employment
matters and
benefits
(including any and all liabilities arising out of or with respect to the
termination of the Company's employees under this Agreement whether for
severance, health care insurance continuation
or any other matter),
employment
and consulting contracts, debt, subordinated debt, claims made by
any past or
current holders of the Company's securities, warranties and other customer
claims, actions and proceedings, pending or threatened, and liabilities,
obligations or claims, whether or not presently asserted, arising out of,
relating to or connection with the Assets
or the Business
heretofore
conducted
by the Company or any of its affiliates and subsidiaries at any time prior to
the Effective Date (the "Assumed
Liabilities").
The Assumed
Liabilities shall
include, but not be limited to: (i) all of the Company's liabilities and
obligations under any contracts or agreements to which the Company is party
including all obligations for the payment of past,
current or future
amounts
payable thereunder (including, without limitation, the lease of the Company's
office facilities in El Monte,
California,
any distribution,
license, joint
venture agreement involving the Company,
and any other
contract or
agreement
relating to the Company or the Business)
("Contract Liabilities"); (ii) each of
the liabilities set forth on Schedule B
hereto, as may be amended and updated as
provided herein, (iii) any claims by past
or present stockholders, debt holders,
warrant holders, or option holders of the Company on account of actions or
events occurring prior to the Effective Date and/or with respect to the
Distribution, and (iv) any and all obligations of the Company with respect to
the stock option or incentive plans of the Company and any and
all options and
shares issued under such plans ("Option
Plans").
Within thirty (30) days following the Effective
Date, the Company
and
ASAP shall cause the Auditor to deliver to the
Company and ASAP the audited
financial statements of the Company and
ASAP as of the Effective Date. Upon such
delivery, the Company and ASAP shall
update and amend the
Schedule B
attached
hereto and provide any supporting
schedules reasonably
required to identify the
Assumed Liabilities in detail.
Within thirty (30) days following the Effective Date, ASAP shall have:
(i) paid in full each of the liabilities set forth on Schedule B hereto, as
amended and modified, or provided for the payment
thereof out the
Subscription
Funds, or obtained the consent to the
assumption of such liability by ASAP and a
release of liability in favor of the
Company; and (ii)
obtained the consent
to
the assumption of all Contract Liabilities
and a release of liability thereunder
in favor of the Company from the third
party to whom
liability or obligation is
owed now or in the future ("Release").
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3. Additional Agreements. ASAP agrees to: (i) pay any and
all taxes of
any kind incurred by the Company with
respect to the
transactions
contemplated
under
