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
